In the Supreme Court of India Equivalent Citation: AIR1951SC318, 1951(53)BOMLR982, (1951)IIMLJ141, [1951]2SCR682 Appellants State of Bombay and Ors. Respondent: F.N. Balsara Decided on 25 May, 1951 Bench Saiyid Fazl Ali, M. Patanjali Sastri, B.K. Mukherjea, Sudhi Ranjan Das and Vivian Bose, JJ.
Background:
This case is significant in the field of constitution law because it cleared certain grey areas regarding the doctrine of pith and substance. The doctrine of pith and substance ‟is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in different legislative lists, because a law dealing with a subject in one list within the competence of the legislature concerned is also touching on a subject in another list not within the competence of that legislature.”[1] In such a case, what has to be ascertained is the pith and substance of the enactment—the true character and nature of the legislation.
In this case, the Court had held the Act valid because the pith and substance of the Act fell under Entry 31 of List II, and not under Entry 19 of List I, even though the Act incidentally encroached upon the Central power of legislation.
Facts
Balsara, who was a citizen of India, had presented a petition in the Bombay High Court.
The petitioner prayed for two things:
- to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc, and to import and export across the Customs frontier and to purchase, possess consume and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines and medicinal preparations containing alcohol
- (2) to forbear from interfering with his right to possess these articles and to take no steps or proceedings against him, penal or otherwise, under the Act.
The petitioner also requested for passing of a similar order under the specific relief act. It was impugned that the said Act was violative of Article 19(1)(g) of the Constitution.
19 (1) (g): to practise any profession, or to carry on any occupation, trade or business
In this case it has been considered as to whether under the Prohibition Act, the keeping of alcohol mixed medicines and toilet good their selling and buying and using can be prohibited or not. The question was whether that Act fell under Entry 31 of List II of the Government of India Act, 1935 (corresponding Entry 8 of the Constitution), namely, “intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors”, or under Entry 19 of List I (corresponding Entry 41 of the Constitution), namely, “import and export of liquors across customs frontier”, which is a Central subject.
The High Court accepted the contention of the petitioner that the definition of “liquor” in the Act was too wide and went beyond the power vested in the legislature to legislate with regard to intoxicating liquors under item 31 of List II. That is when the State of Bombay went to the Supreme Court of India in appeal.
The two important questions which the Supreme Court was called upon to decide in these appeals were:
(1) whether there are sufficient grounds for declaring the whole Act to be invalid
(2) to what extent the judgment of the High Court can be upheld with regard to the specific provisions of the Act which have been declared by it to be void.
Final Judgement
The state legislature has the power to completely prohibit the keeping, selling and using intoxicating wine under the Entry 31 of List II. There is hence, no question of the dispute between the jurisdiction of the state and the centre.
If any act passed by the state legislature, prohibits or controls the export of the things mentioned in Entry 27 and 29 of the List II, outside the boundaries of the state, then the Act is illegal. But this Act has been passed under Entry 31 of List II, hence Section 297(1)(a) does not apply to it.
The exemption allowed to the soldiers of Army, the messes of the Land Forces and Water Ships can therefore, not be declared illegal under Section 37.
The Supreme Court declared illegal those provisions of the Bombay Prohibition Act which were regarding keeping alcohol-mixed medicines and toilet goods, selling and buying them and also using them etc as violative of Article 19(1)(g) of the Constitution and the rest of the provisions, legal. It was also decided that an Act, by declaring certain provisions thereof as illegal, cannot be wholly declared as illegal.
It was stated that under Article 277 of the Constitution, any taxes , duties, cesses or fees which immediately before the commencement of the Constitution, were being lawfully levied by the Govt. of any State or municipality or other local authority or body for the purpose of the State, municipality, district or other local area may, notwithstanding that these taxes, duties, cesses or fee are mentioned in the Union list continue to be levied and to be applied for: the same purpose until provisions to the contrary are made by Parliament by law.
The principle of law laid down is that if the State government has enacted an Act on the subject on which it is constitutionally empowered to do so, the Act is legal.
Overruling
This case no longer holds true in the present context because it has overruled in the case of Synthetics and Chemicals Ltd. And Others v. State Of U.P. And Ors.[2]
It is stated that this decision had proceeded on the basis that there could not be a complete prohibition in regard to medicinal preparations containing alcohol. Hence, it was submitted that so far as alcohol not fit for human consumption is concerned, it cannot be held that trade in such an article cannot be considered to be a noxious trade. It will be a noxious trade only where it is produced or manufactured for purposes of human consumption.
It was stated that under Article 277 of the Constitution, any taxes , duties, cesses or fees which immediately before the commencement of the Constitution, were being lawfully levied by the Govt. of any State or municipality or other local authority or body for the purpose of the State, municipality, district or other local area may, notwithstanding that these taxes, duties, cesses or fee are mentioned in the Union list continue to be levied and to be applied for: the same purpose until provisions to the contrary are made by Parliament by law.
State Legislature will have to levy taxes on possession of alcoholic liquors fit for human consumption because these are luxuries. But alcohol not fit for human consumption are not luxuries and as such the State Legislatures, according to learned Attorney General, will have no power to levy taxes on such alcohol. Parliament will have power to levy on all alcohol taxes not covered by any other entries in lists I and II. See list 1 entry 97.
Edited by Dhruval Singh
Approved & Published – Sakshi Raje
Reference
[1] E.V. Chinnaiah v. State of A.P., (2005)1 SCC 394.
[2] Synthetics And Chemicals Ltd. And Others v. State Of U.P. And Others, MANU/SC/0595/1989
