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pith and substance

English · Constitutional and administrative

Meaning. The rule that a law is judged by its true nature and character to decide which legislative list it falls under.

When a law made under one List of the Seventh Schedule incidentally touches a subject in another List, the court asks what the law is really about. If its pith and substance falls within the enacting legislature's field, it is valid even though it incidentally trenches on the other field. The extent of encroachment is relevant only to see whether the law is in substance about the forbidden subject.

The doctrine was applied by the Privy Council to the Government of India Act, 1935, and adopted under Article 246 of the Constitution. It is related to, but different from, colourable legislation, which asks whether a legislature has done indirectly what it cannot do directly.

Example

The State prohibition law was upheld because, in pith and substance, it dealt with intoxicating liquor (State List), and only incidentally affected imports.

In Indian law

See also

colourable legislation · repugnancy · federalism · territorial nexus

Read more in the study notes

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