CONSTITU CONS TITUTION TIONAL AL LAW LAW- II SYNOPSIS DOCTRI D OCTRI NE OF PI TH AND SUBSTAN SUBSTANCE CE ” ”
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PROJECT SUBMITTED TO: Ms. ANKITA YADAV
(ASSISTANT PROFESSOR OF LAW) PROJECT SUBMITTED BY: R ISHI ISHI SEHGAL
Semester IV, Section B
R OLL OLL NO. 115
AM MANOHAR LOHIYA NATIONAL LAW DR . R AM
U NIVERSITY. LUCKNOW, UTTAR PRADESH
INTRODUCTION
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government. The British North America Act, 1867, which established a federal constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, soon, it was found that the topics enumerated in the two sections overlapped, and the Privy Council repeatedly had to pass on the constitutionality of laws made by the federal and provincial legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. Thus, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable: whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. However, where that is not the position, the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.
SCOPE & ANALYSIS The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of the Privy Council, effectively the British Imperial Court of Appeal, has been carried to other commonwealth federations. The doctrine is widely accepted today. Though it originated from Canadian laws, gradually it has been included in many other Constitutional systems.
Especially the sates having Federal character found it essential to apply doctrine in working as the doctrine provides remedy for disputes arising between Union and State. Therefore other than Canada- it is used in India under the present Constitution. In Australian High Court applied this doctrine in King v. Berger 1, where Federal Excise Tariff Act, 1906 had imposed an excise duty on manufacture of agricultural implements and invalidated the law. It was also used in Northern Ireland, Scotland and some other countries.
RESEARCH METHODOLOGY The study of this project shall involve Doctrinal Research met hodology. Study of this project will be done through books, articles, magazines, journals and internet database.
TENTATIVE CHAPTERISATION
CHAPTER I: INTRODUCTION: CHAPTER II: ORIGIN CHAPTER III: SCOPE OF THE DOCTRINE CHAPTER IV: PROVISIONS IN INDIAN CONSTITUTION CHAPTER V: JUDICIAL INTERPRETATION THROUGH VARIOUS CASES CONCLUSION
REFERENCES
V.N.Shukla and M.P.Singh, Constitution of India 740 (Eastern Book Company, Lucknow, 11 th edn., 2008).
D.D.Basu, Comparative Constitutional law 623(Wadhwa and Company, Nagpur, 2 nd edn., 2008).
1
King v. Berger , (1908) 6 CLR 41.