pith and substance
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
- Article 246 and the Seventh Schedule, Constitution of India
- Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (Privy Council, 1947)
- State of Bombay v. F.N. Balsara, 1951 INSC 39: Bombay Prohibition Act upheld on pith and substance
See also
colourable legislation · repugnancy · federalism · territorial nexus
Read more in the study notes
- Principles of constitutional interpretation: pith and substance, colourable legislation, occupied field and repugnancy (Interpretation of Statutes and Principles of Legislation)
- Centre-State legislative relations (Constitutional Law II)
- Constitutional interpretation (Constitutional Law II)
- Indian federalism: Centre-State relations, the GST Council and the Governor (Indian Constitutional Law - New Challenges)
- Judicial review: notions, foundations and theories (Judicial and Legislative Process)