Skip to main content

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.
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more