Edited by: Vaani Garg
This article is written by Janvi Johar, 2nd year student pursuing B.A.LLB (H) from Amity University, Noida.
The doctrine of pith and substance is an old concept, borrowed by Indian Constitutional makers from the Canadian Constitution. The word ‘pith’ denotes ‘true character or essence’ and ‘substance’ denotes ‘the most significant part of a thing’. Hence, this doctrine aims to find out the true nature of a statute.
As stated above, this doctrine originated in Canada. The makers of the Canadian constitution separated the powers of both dominion and provinces into two separate lists. This segregation was rigid as neither the provinces nor the dominion could interfere in each other’s authority.
Despite such a clear cut separation, there were certain subject matters that were overlapping and converging. This problem was first acknowledged in the landmark judgement of Cushing vs. Dupey. The court held that it was necessary to look at the true essence of a subject matter to decide if the powers would be assigned to the dominions or the provinces.
SAILENT FEATURES OF PITH AND SUBSTANCE
- This doctrine is applied when the subject matter of List 1 seem to conflicting and overlapping with the subject matter in List 2.
- This doctrine checks and examines the ‘true nature and character’ of the subject matter in order to ascertain the fact that in which list does it fall.
- This doctrine provides a degree of flexibility by accepting ancillary or incidental powers.
- This doctrine is used to determine the legislative competency of an authority to enact and make laws on a particular subject matter.
ARTICLE 246 OF THE INDIAN CONSTITUTION
The most important feature of the federal nature of our Indian Constitution is the distribution of powers between the centre and state government. The seventh schedule of the Indian Constitution allocates the powers and functions of both the governments into three lists-
- List 1- Union List
- List 2 – State List
- List 3 – Concurrent List
The Union List contains matters of national importance and is handled by the central government. The state list contains matters of local importance and is handled by the state government. Lastly, Concurrent List contains matters that are of significance to both the levels of government and thus the power to legislate on those matters lies with both the governments. However, in matters mentioned in concurrent list, the law made by the Union will prevail if the state law does not have a prior assent of the President of India.
In the landmark judgement of State of Mumbai vs. F.N. Balsara, the validity of Bombay Prohibition Act was challenged. This act prohibited the sale and possession of liquor in Bombay and it was challenged that this act encroached upon the import and export of liquors across outside borders, which was a Union subject. The court upheld the constitutional validity of Bombay Prohibition Act because it fell under the pith and substance of the State list.
In the case of Profulla Kumar Mukherjee v. Bank of Kulna, the validity of Bengal Money Lenders Act, 1946 was challenged. It was argued that promissory notes is a Central subject and not a state subject. It was held by the Privy Council that the act was in pith and substance a law in respect of ‘money lending and money lenders’ was a state subject and was valid even if it incidentally trenched upon a central subject.