What is doctrine of pith and substance?

The doctrine’s start

The doctrine acts as a mediator between the between the states and centre over the subject matters. The doctrine was first mentioned in Canadian case. The presumption is that a law is constitutional until and unless it has interfered with the power of another regime & there is no “true purpose,” backing its actions. The concept has been held to be subset of the rules relating to repugnancy by Justice Sabyasachi Mukharji in ITC v. Karnataka case of 1985.

Doctrine’s interpretation

The primary purpose of the concept, as applied by the courts, is to examine the law’s intent or goal. If the law is passed for a good reason, it will be enforced. The main goal of the theory, as applied by the courts, is to check the law’s purpose or objective. The passed statute would be valid if it served a reasonable purpose, regardless of whether it conflicted with other subject matter in another list. The doctrine refers to an act’s purpose or object, which means that as long as the statute enacted by the respective legislature had a legitimate purpose or object, it would not be declared unconstitutional or invalid simply because it might conflict with the power of another regime to enact such a law. As a result, it makes no difference if the law had an unintended or collateral effect on something on the union list, as long as it was valid in its actual character with aim and object. Lord Porter also stated in 1940 case that the authorities of several legislatures are certain to overlap from time to time as citizens’ needs and aspirations change. As a result, even if the lists mention the allocation of powers, no defined criteria may be applied. In contrast to the Indian Privy Council, which kept the concept for flexibility, Australian courts were assumed to have abandoned it due to its inflexibility. According to the Privy Council, if the doctrine is not retained, helpful law will not see the light of day due to a minor overlap with the union’s power, and a vast number of laws will be declared illegal due to minor trespass, even though their intent is to do good.

The proportionality test and the degree of invasion: Case Laws

The Privy Council utilized the proportionality test to clarify its position that what was important to grasp was the degree of state interference into the union list subjects. Furthermore, the extent of the invasion had to be assessed solely to evaluate its “pith and substance.” To put it another way, if the invasion went too far, it wouldn’t reflect its “real essence.” The Hon’ble Supreme Court, however, in the case 1951, criticized the degree of invasion concept as a test to determine the constitutionality of the act in terms of pith and substance, holding that even if the interference occurs across the entire Union field, the law may still be valid. The doctrine pertains to the law’s aim, purpose, and scope, which indicates that the laws will be declared legal as long as the legislative purpose is consistent with the constitutionally allowed purpose.

• The Doctrine explained with example.  

The state and central government have powers to enact laws as per their allotted lists mention under seventh schedule. For example, the central government has the right to create law on the subject of “corporate tax,” which is mentioned of the Union list, yet the states cannot. Similarly, as stated in the State list, state governments have the right to create laws on the subject of fishing, and so the central government cannot intervene in that matter by enacting a law on the subject. The subject topic specified in concurrent list is “criminal affairs,” and both regimes have the right to pass laws related to the Indian Penal Code. However, sometimes regimes enact laws that inadvertently infringe on the subject matter of other regimes, such as states passing laws on corporations that may have an impact on corporate tax matters, and the centre may challenge such a statute as unlawful. As a result, the concept aids judges in determining, first, which law belongs to which list, second, whether the involved regimes had the authority to enact laws on the relevant subject matter, and finally, if the subject matter is concurrent, which law will prevail. Furthermore, the goal of the concept, according to the courts, is to check the “real substance” of law enacted by both parties, rather than declaring a law unconstitutional only because it breached the power and jurisdiction. In the Bennet Coleman case the argument by the government was that the concept can justify incidental trespass on freedom of free speech, however, the courts negated and cautioned that the concept cannot be used on matters relating to fundamental rights and it is only used to assess the legislative competency to enact laws enshrined from the three lists.

Recent case law wherein doctrine has been used.

In the right to privacy case, concept was involved to understand purpose of Aadhar. In paragraph 402 the court said that the purpose is to give target delivery of subsidies and benefits from India’s consolidated fund. However, Justice Chanhrachud gave a dissenting view on the application of this doctrine by stating that the doctrine cannot be applied when deciding the question if the particular bill is a “money bill,” or not.

Conclusion

Whenever there is a question about the constitutionality of a law, enactment, or rule, the courts are bombarded to resolve it due to its subjectivity. To make it objective, the courts have introduced various doctrines and tests to determine its constitutionality over the years. Doctrines have been adopted by the Indian courts, mostly from foreign jurisdictions, to aid the justice process. The pith and substance concept makes the court to check the purpose of the law by checking the preamble, statement of object and reasons, the legal significance, and the intendment of the provisions of the Acts, their scope and nexus with the object that is sought to be achieved.