In constitutional law, Doctrines holds a very important role even when the
doctrines are not mentioned in the constitution directly. Doctrine means a
belief or set of beliefs. In law, a doctrine is a legal rule, theory or
principle, most likely established through previous judgments and cases.
Doctrine of pith and substance
Pith: True Nature
Substance: Important Part Of Something
- Pith and substance is concerned with determining the true nature of any
law. Pith and substance is used to identify under which authority a piece of
legislation belongs to. The theory is applied when a particular law is
challenged on the grounds that one level of government has infringed on
another's exclusive jurisdiction.
Cushing V. Dupuy
- The idea of pith and substance originated in Canada and was first used
in a case known as Cushing v. Dupuy. This concept was developed by the Privy
Council to determine the legality of Canadian and Australian statutes that
violated the allocation of powers. It said that while determining whether a law
is void, the actual substance of the law must be considered.
- India, like Canada, has two legislative bodies: the Centre and the state
legislatures, both of which are primarily empowered by Article 246 of the
constitution. India has three lists specified in the Seventh Schedule that
includes subjects with a clear distinction of whether issues can be handled
solely by the union or by the state.
Article 246 And Seventh Schedule
- This is doctrine is not directly mentioned in the constitution but the
idea of pith and substance is concerned with Article 246 of the Indian
Constitution and the Seventh Schedule, which consists of three lists.
- When the competency of an enactment made under the three lists in
seventh Schedule is questioned, this Article can be challenged.
- The subject matter of laws established by parliament and state
legislatures are discussed in Article 246 of the Constitution.
- To understand article 246 properly it is essential to mention the
seventh schedule. Given the Indian Constitution's federal nature, one of the
important features of such a constitution is the division of power between
the central and state governments, which is enshrined in the Seventh
Schedule, which consists of:
Union list- This list includes of subject matter over which the central
government has exclusive jurisdiction to make laws.
State list - The state legislature has the power to make laws related to
any subject matter mentioned in this list for the state of any part of the
Concurrent List- This List includes the subject that are of common
relevance to both the central and state governments. Both the central and
state governments can make laws on these topics but if there is a conflict
between the central law and state law on a matter in the Concurrent List,
the central law will prevail.
The doctrine is applied when legislation is challenged on the grounds
that one body of government has infringed on the exclusive jurisdiction of
another level of government by interfering in law making which was not mentioned
within its jurisdiction.
When a subject from one list impacts a subject from another list, the
court applies the rule of pith and substance. In assessing whether a specific
law relates to a specific issue mentioned in one of the lists or the other.
The doctrine of pith and substance states that while evaluating
whether a certain law applies to a specific issue, the court considers the
essence of the case. As a result, if the material fits inside one of the lists,
the law's accidental encroachment on another list does not make it invalid.
This point was justified in the Indian case of the State of Bombay and Others
vs. F.N. Balsara
. In this case the court supported the Doctrine of Pith and
Substance, stating that it is critical to determine the real essence and
character of legislation in order to determine which List it belongs to.
What exactly happened was that the Bombay Prohibition Act was challenged on the
grounds that it accidentally interfered with the import and export of liquor
across customs borders, this is a central issue. While upholding the challenged
law, the court stated that the Act was in essence a state issue, despite the
fact that it encroached on a core topic. Therefore it was not considered as null
As we all know that India has a federal structure of government in which the
powers are divided in various levels of government. In this type of structure
the central as well as state government gets the authority to make laws. In such
scenario where clash and interference of power is easily foreseeable it is very
essential to have a doctrine of pith and substance to prevent such clashes and
also the court can easily decide on such matters by implementing this doctrine.
- The doctrine also provides flexibility in distribution of powers which
can be said is generally rigid in nature. The reason for this doctrine's
adoption is that if every law was found illegal because the body which
created it interfered or encroached upon another body's jurisdiction of law
making then the legislature's powers would be severely limited.
- According to this doctrine, the legislation as a whole is reviewed to
identify its "real nature and character" in order to determine where it
falls on the list. If the legislation's actual essence and character
significantly fits within the powers conferred on the body that enacted it,
it is not ruled invalid merely because it accidentally interfere or trespass
on subject matter which have been allocated to another governmental body.
Despite the distribution of powers, it appears that the Central Government has a
lot of freedom when it comes to enacting laws. For example, Unlike the Canadian
Constitution, some topics are specified in List 3 on which both the Centre and
the States can legislate and use their authorities.
In the concurrent list, if
a dispute arises between the Centre and the State, the law enacted by the Centre
is counted valid. This doctrine serves as a relief and makes sure that the
country does not become a unitary but still maintains the separation of powers
and the characteristics of a federal country. India still separation of powers
is not implemented properly in such scenario doctrine of pith and substance is
Secondly While Article 246 certainly includes the subjects on which the Centre
and States should make laws, there are a number of things or subjects on the
list that are so closely related that another subject may inadvertently be
encroached upon while making a law, which is where this doctrine comes in
handy. the interpretation of the list specified in Article 246 should be broader
and more clearly expressed and explained in comparison to what it is, and the
amount to which one enactment infringes on another should also be examined more
closely. If there is a conflict between two laws making bodies while making a
particular law then this doctrine also helps in solving the dispute easily and
also helps in avoiding delay in passing of law.