Friday, 11 February 2022

doctrine of pith and substance

 The doctrine of pith and substance:

By Shreya Verma

The constitution has clearly distributed the powers of the legislations on the basis of various subjects and has divided them in the various lists of  the 7th Schedule of the constitution. And the law-making powers of the centre and the state have been separated by defining them in different lists.  However, sometimes there is overlapping of the functions of parliament and the state legislature. Article 245 - 255 deals with the law-making power of the Legislature article 245 clearly states that the parliament has a power to form laws for the whole of the territory of India and even relating to the matters provided in the state list. Article 246 empowers the Parliament to make laws exclusively provided in the union list. Article 248 Lays down about residuary powers which allow the Parliament to make laws on any item which is not included in any of the lists.

The doctrine of pith and substance is applied where there is a law made by the Legislature and it is challenged on the ground that it is touching, or is connected to an item which is on different list and which is in the power of the different legislature. 

In such cases where there is an overlapping between the subject of the items then in such a case the principle of pith and substance is applied. 

In other words, the Mischief of the law or the object would be a deciding factor that under whom the power to make a law is vested. 

In the case of State of Rajasthan vs V.G. Chawla (1959) SC 

State legislature made a law respecting the use of a sound amplifier. This law was challenged in Supreme Court that entry number 31 of list 1 of seventh schedule of the constitution puts post, telegraph, telephone, wireless broadcasting and other like forms of communication in the union list, with respect to which, the central government has power to make laws. In this case the state contended that entry number 6 of the 2nd list, of the seventh schedule makes public health and sanitation a state subject therefore making the state legislature empowered to make laws relating to the health of the people and loud music affects the health making it state subject. 

The hon’ble Supreme Court held that the pith and substance of the act is well within the entry number 6 of the state list and state government is justified in making law. It justified by saying that, sound amplifier produce loud noises and there is manifest nuisance which is a matter of Public Health.

In another case of State of Bombay vs S.L. Balsara (1956) SC 

The Bombay prohibition act banned possession, production and selling of intoxicants and liquor as entry number 51 of state list makes it a state subject. This law was challenged as it hampered import and export of liquor across frontiers, which incidentally encroaches the law by the centre. This state was held to be empowered to make laws regarding liquor and other intoxicating substances. 

In order to see whether there is an encroachment the object of the law has to be seen. And the law has to be e harmoniously constructed. The doctrine of pith and substance is observed to provide an ease to the otherwise rigid federal structure which distributes the powers between Central and State Government.

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