1

1. INTRODUCTION

1.1 Introduction:
The rule of the doctrine envisages that the legislation as a whole be examined to
ascertain its ‘true nature and character’ of the legislation. 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.
Within their respective spheres, the Union and the State legislatures are made
supreme and they should not encroach into the sphere reserved to the other. If a law
passed by one encroaches upon the field assigned to the other the Court will apply the
doctrine of pith and substance to determine whether the legislature concerned was
competent to make it. If the ‘pith and substance’ of law, i.e. the true object of the
legislation or a statute, relates to a matter with the matter competence of legislature
which enacted it, it should be held to be intra vires even though it might indecently trench
on the matters not within the competence of Legislature. In order to ascertain the true
character of the legislation one must have regard to the enactment as a whole, to its object
and to the scope and the effect of its provisions.

The first step in a pith and substance has been described in numerous ways. It
determines the substance, essential character, dominant feature, or true meaning of the
law. This involves examining both the intended purpose of the law as well as the legal
effect of the law on rights and obligation upon the public 1. The purpose can be found
through the wording of the law, the mischief that the law was intending to address as well
as the overall social context for the law's introduction. Examination of the actual effect is
useful in determining if the law was "colourable" that is, whether the law, in substance,
addresses a matter completely different from what the law addresses in form.

To ascertain the true character of the legislation in question, one must have regard
to it as a whole, to its objects and to its scope and effect of its provisions. If according to
its true nature and character, the legislation substantially relates to a topic assigned to the
Legislature which has enacted it, then it is not invalid merely because it incidentally
1
Reference re Firearms Act (2000)
 2

trenches or encroaches on matters assigned to another Legislature. The fact of incidental

encroachment does not affect the vires of the law even as regard the area of
encroachment. To put it differently, incidental encroachment is not altogether forbidden2.

If the pith and substance of the impugned legislation can be related to a matter
that falls within the jurisdiction of the legislature that enacted it, the courts will declare it
intra vires. If, however, the legislation can more properly be said to relate to a matter
that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this
violation of the division of powers. To determine the pith and substance, two aspects of
the law must be examined: the purpose of the enacting body and the legal effect of the
law3. To assess the purpose, the courts may consider both intrinsic evidence, such as the
legislation’s preamble or purpose clauses, and extrinsic evidence, such as minutes of
parliamentary debates. In so doing, they must nevertheless seek to ascertain the true
purpose of the legislation, as opposed to its mere stated or apparent purpose4. Equally,
the courts may take into account the effects of the legislation.

1.2 Origin:

The doctrine originates from the Privy Council decision of Hodge v. The Queen
(1883) where the court stated that "subjects which in one aspect and for one purpose fall
within s.92, may in another aspect and for another purpose fall within s.91". In applying
the doctrine, it should be in situations where the importance of one matter should not be
significantly larger than the other. In effect, the doctrine removes the need for courts to
split hairs to determine which head of power should be assigned a particular law.

The principle of “pith and substance” had come to be established by the Privy
Council, when it determined appeals from Canada or Australia involving the question of
legislative competence of the federation or the States in those countries. In India, the
doctrine of pith and substance came to be adopted in the pre-independence period, under
the Government of India Act, 1935. The classical example is the Privy Council decision

2
D.D. Basu, COMPARATIVE CONSTITUTION, P. 623.
3
Firearms Reference, at para. 16
4
Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.), at p. 337
 3

in Prafulla Vs. Bank of Commerce5, holding that a State law, dealing with money lending
(a State subject), is not invalid, merely because it incidentally affects promissory notes
(See now Union List, entry 46). The doctrine is sometimes expressed in terms of
ascertaining the “nature and true character of legislation”; and it is also emphasized, that
the name given by the Legislature (to the legislation) in the short title, is immaterial.
Again, for applying the “pith and substance” doctrine, regard is to be had

(i) to the enactment as a whole,

(ii) to its main objects, and

(iii) to the scope and effect of its provisions.

1.3 Scope:

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 inculcated in many other
constitutional systems.

Especially the states having federal character found it essential to apply the
doctrine in the 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. It was also used in Northern Ireland under the Government Ireland Act
1920. The substance of the doctrine has been cast in legislative form in the Scotland Act
1998 for the purpose of devolution to Scotland.

1.4 Research Scheme:

5
AIR 1946 PC 60
 4

For the completion of this project various books, case laws, articles and websites
have been consulted. Efforts have been made to make this project report of as much use
as possible. For this purpose the project report has been divided into five chapters.
Chapter one deals with the introduction. In chapter two, doctrine of pith and substance
under Canadian constitutional law with relevant case laws has been discussed. In chapter
three the doctrine under Indian constitutional law with relevant cases has been discussed.
Chapter four deals the comparison between Canadian and Indian Constitutional laws with
respect to doctrine of pith and substance. The fifth and the last chapter deal the conclusion of
the project.

1.5 Research Methodology:

The research methodology adopted for the completion of this project is the doctrinal
approach. Various books, articles, case laws and websites have been consulted. Efforts have
been made to include all possible information relating to doctrine of pith and substance in
Canada and India.
 5

2. DOCTRINE OF PITH AND SUBSTANCE AND CANADIAN

CONSTITUTIONAL LAWS

Canada is the first country in which doctrine of pith and substance got evolved.
Supremacy of Privy Council over Canadian Constitution is manly responsible to bring
into picture the doctrine of pith and substance.

The Judicial Committee of the Privy Council (JCPC) is a court run by the House
of Lords in London. It was the highest court in Canada from 1867 to 1949, and heard
Canada's important division of powers cases from that era. It could overrule the Supreme
Court of Canada; many important cases bypassed the Supreme Court altogether and went
directly to the JCPC.

2.1. Provisions in Canadian Constitution

The JCPC developed a doctrine called "pith and substance". This meant that,
whenever a government's legislation was challenged for being outside its jurisdiction, the
JCPC would examine the "pith and substance" of the legislation. The court would try to
figure out what the law was "really about". Once the JCPC had figured out the
legislation's "pith and substance," it would decide which one of the listed powers
mentioned in s. 91 or 92 of the BNA Act most closely corresponded with that "pith and
substance", to see if the government had jurisdiction. If the pith and substance of the law
was substantially within the government's jurisdiction, then any incidental effects the law
had on another government's jurisdiction were permissible.

This doctrine greatly increased the importance of the listed powers in s. 91 and
92, consequently decreasing the importance of the POGG clause. The power that the
JCPC found most often corresponded to the "pith and substance" of contested legislation
was s. 92(13), the provincial jurisdiction over "Property and Civil Rights". "Civil Rights"
is a term of art in Canadian law. Unlike in the United States, where "civil rights" is
synonymous with "human rights", civil rights in Canada means the ability of a person to
 6

make contracts (including marriage contracts), to buy, sell, and use property, to have
parental authority, and to sue and be sued; one can think of them as the rights one attains
upon adulthood. The JCPC found that the pith and substance of most disputed laws
related to property and civil rights.

Doctrine of Double Aspect is supplementary to that of doctrine of pith and

substance. Therefore it is sensible to discuss here, the provisions of the doctrine in
Canadian Constitution. The doctrine of Double Aspect says that a law may possess more
than one "matter" that may be enumerated in both section 91 and 92.

Therefore we can see that the doctrine of pith and substance in Canadian law is
mainly deals through Section 91 and 92 of the BNA Act. Further it has been expanded
and interpreted through judicial decisions given by Privy Council and other forums in
Canada. Therefore today it is much developed principle in distribution of power and can
be validly applied by courts through matters before it to various legislatures. The doctrine
is basically useful in harmonizing the functioning of the state machinery. It is not
necessary that if two pieces of legislature overlaps each other then they are so with
malafide intention. It may be a case that they are overlapping incidentally and are
unavoidable to achieve objective of law and order. Considering this situation Privy
Council has inculcated the doctrine and provided great remedy as dispute resolution for
conflict between two pieces of legislature.

Importance of the doctrine:

The doctrine has both theoretical and practical importance as follows:

(a) Theoretically, the subject carries an appeal, because
(i) it represents the vesting of power in two parallel legislatures, operating at the same
time and
(ii) also because such a scheme is to be found in most federations of the world, though
the details vary.
(b) The practical importance of the Concurrent list, (when adopted in any federation) lies
in the fact, that the vesting of the same type of power in two parallel agencies carries,
 7

within it, the seeds of a possible conflict. This implies, that the Constitution (of the
country concerned) should provide, in advance, a mechanism for resolving such conflict.

2.2. Judicial interpretation through various case laws:

As it has been already discussed that in Canada the doctrine was developed
further through various judicial interpretations, some of the case laws with the principles
are as given bellow:

The Judicial Committee of Privy Council found that the pith and substance of
most disputed laws related to property and civil rights. In Toronto Electric
Commissioners v. Snider (1925), the JCPC struck down the federal Industrial Disputes
Investigation Act. It was a law giving the federal government certain authority over
certain labour disputes. The JCPC rejected the federal government's argument that such a
law was for the Peace, Order, and Good Government of Canada, holding that the POGG
power really just gave the federal government the power to act during emergencies.
Rather, since labour disputes are contract disputes, such a law is in pith and substance
about Civil Rights, a provincial jurisdiction. Therefore, the federal law was struck down
as unconstitutional.

This initial analysis consists of an inquiry into the true nature of the law in
question for the purpose of identifying the “matter” to which it essentially relates. As
Rand J. put it in Saumur v. City of Quebec6:

the courts must be able from its language and its relevant circumstances, to attribute an
enactment to a matter in relation to which the legislature acting has been empowered to
make laws. That principle inheres in the nature of federalism. . . . [Emphasis in original]

If the pith and substance of the impugned legislation can be related to a matter
that falls within the jurisdiction of the legislature that enacted it, the courts will declare it
intra vires. If, however, the legislation can more properly be said to relate to a matter that
6
[1953] 2 S.C.R. 299, at p. 333
 8

is outside the jurisdiction of that legislature, it will be held to be invalid owing to this
violation of the division of powers.
In Attorney-General for Alberta v. Attorney-General for Canada7 (“Alberta
Banks”), the Privy Council held a provincial statute levying a tax on banks to be invalid
on the basis that its effects on banks were so great that its true purpose could not be (as
the province argued) the raising of money by levying a tax (in which case it would have
been intra vires), but was rather the regulation of banking (which rendered it ultra vires,
and thus invalid).
In Bank of Toronto v. Lambe8, by way of further example, and in contrast to the
Alberta Banks case already mentioned, the Privy Council upheld the validity of
legislation levying a tax on banks, holding that the pith and substance of the legislation
was indeed to generate revenue for the province, and its essential purpose was therefore
in relation to direct taxation, not banks or banking.
In a few rare instances, the Supreme Court of Canada has ruled that the federal
government's jurisdiction (up until now, never the provincial government's jurisdiction)
had "Inter-Jurisdictional Immunity." Provincial government legislation could have no
effect on these jurisdictions, not even incidentally.

There are two cases where this has happened. The first is federal election
postering. In McKay v. the Queen (1965), the Supreme Court of Canada held that
municipal by-laws could not be enforced to prevent the posters of federal political parties
from being put up during election periods. This was because federal election postering
has Inter-Jurisdictional Immunity from provincial government legislation. Since
municipalities get their authority to make by-laws from provincial legislation (BNA Act
s. 92(8)), such by-laws had no effect on federal election posters. This did not mean that
the municipal by-law was rendered invalid; it maintained its effect on every type of
postering except federal election posters.

The other cases were the Supreme Court has recognized Inter-Jurisdictional
Immunity is in Federal Works and Undertakings. This federal power oddly comes from

7
[1939] A.C. 117
8
(1887), 12 App. Cas. 575
 9

BNA Act s.92 (10) (a). The provincial government has jurisdiction over "works and
undertakings" except the ones listed. One of these exceptions is "telegraphs".
Consequently, the major telephone companies are all under the jurisdiction of the federal
government.

Worker health and safety is a provincial jurisdiction ("Civil rights"). So, if the
province passes a law which, in pith and substance, regulates worker health and safety. In
Bell Canada v. Quebec (C.S.S.T.)9. The Supreme Court laid out the following test:

1. If the purpose of the provincial law is to regulate a federal work/undertaking, then

it is unconstitutional.
2. If the provincial law directly affects a vital part of the federal work/undertaking,
then interjurisdictional immunity applies (the law has no effect on the federal
work/undertaking).
3. If the provincial law has an indirect effect which impairs the operation of the
federal work/undertaking, then interjurisdictional immunity applies.

On the facts of the case, the Supreme Court ruled that occupational health and safety
directly affected the vital management decisions of Bell Canada, and therefore the law
had no effect on the company.

These are the highlighting case laws in Canada, in which doctrine of pith and
substance was mainly invoked. The doctrine was suitably applied by judiciary in different
circumstances. Therefore the doctrine was gradually evolved through judicial
interpretation.

9
[1988] 1 S.C.R. 749
 10

3. DOCTRINE OF PITH AND SUBSTANCE IN INDIA

The doctrine covers important aspect of Indian federalism, namely, the concurrent
powers of legislation under the Constitution. The subject of federalism in any country
covers a vast area, embracing legislative, executive and judicial powers, as distributed
between the federal union and its units. Distribution of legislative power is only one
branch of the subject; and in that branch, the topic of concurrent legislative power is only
a sub-branch (so to say).
It is obvious, that where either the Union or the State legislature proposes to enact
a law, it must, in the first place, decide whether it has legislative competence with
reference to the subject matter of the law. For this purpose, the draftsman will necessarily
have to examine whether the subject matter falls within the relevant list, that is to say:
(a) the Union List or the Concurrent list (for the draftsman in the Union) or
(b) the State List (for the draftsman in the State).
For this purpose, the test of “pith and substance” is usually applied. In no field of
constitutional law is the comparative approach more useful, than in regard to the doctrine
of “pith and substance”. This is a doctrine which has come to be accepted in India and
derives its genesis from the approach adopted by the courts (including the Privy Council),
in dealing with controversies arising in other federations. Briefly stated, what the doctrine
means, is this: Where the question arises of determining whether a particular law relates
to a particular subject (mentioned in one List or another), the court looks to the substance
of the matter. Thus, if the substance falls within Union List, then the incidental
encroachment by the law on the State List does not make it invalid.
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. Parliament or a state legislature should keep within the
domain assigned to it, and not to trespass into the domain reserved to the other. A law
made by one which trace passes or encroaches upon the field assigned to the other is
invalid. If a subject is exclusively in List II, and in no other List, then the power to
legislate exclusively vests in the state legislature. But if it also falls in List I as well, then
the power belongs to the centre. Similarly if it falls within List III also, then it is deemed
 11

to be excluded from List II. The dominant position of Parliament in List I and List II thus
established.

3.1. Provisions in Constitution of India:

Doctrine of pith and substance is schemed under Constitution of India. The

doctrine was applied to the matters came before the Courts regarding the disputes and
confusion between union and state functionaries. Therefore while interpreting the
Constitution the doctrine was pronounced in the related judgments and achieved
significance. The provisions under Constitution related to the doctrine are: Scheme of
distribution under Constitution of India.
a) The constitutional provisions in India on the subject of distribution of legislative
powers between the Union and the States are spread out over several articles. However,
the most important of those provisions – i.e. the basic one – is that contained in articles
245-246.
Article 245 provides, inter alia, that (subject to the provisions of the Constitution).
(i) Parliament may make laws for the whole or any part of the territory of India and
(ii) The legislature of a State may make laws for the whole or any part of the State.
(b) Thus, article 245 sets out the limits of the legislative powers of the Union and the
States from the geographical (or territorial) angle. From the point of view of the subject
matter of legislation, it is article 246 which is important. Article 246 reads as under:
“246(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power
to make laws with respect to any of the matters enumerated in List 1 of the Seventh
Schedule (in this Constitution, referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the
Legislature of any State also, shall have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in this Constitution, referred to as
the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to
make laws for such State or any part thereof with respect to any of the matters
 12

enumerated in List II in the Seventh Schedule (in this Constitution, referred to as the
“State List”).
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in a State, notwithstanding that such matter is a matter
enumerated in the State List”.
Article 246 (2) – gives power to two legislatures, a conflict can arise between laws passed
on the same subject by the two legislatures.
To deal with this situation article 254 of the Constitution primarily seeks to incorporate
such a mechanism. The provision mainly deals in solving repugnancy between State and
Union regarding concurrent list.
Article – 254 (1) If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament is competent
to enact, or to any provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law
made by Parliament, whether passed before or after the law made by the Legislature of
such State, or, as the case may be, the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters
enumerated in the Concurrent List contains any provision is repugnant to the provisions
of an earlier law made by Parliament or an existing law with respect to that matter, then,
the law so made by the Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time
any law with respect to the same matter, including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.”

3.2. Judicial Interpretation through various case laws:

To adjudge whether any particular enactment is within the purview of one

legislature or the other, it is the pith and substance of the legislation in question that has
to be looked into. This rule envisages that the legislation as a whole be examined to
 13

ascertain its ‘true nature and character’ in order to determine to what entry in which List
it relates. In determining whether the impugned Act is a law with respect to a given
power, the Court has to consider whether the Act, in its pith and substance, is a law on
the subject in question. To ascertain the true character of the legislation in question, ne
must have regard tom it as a whole, to its object and to its scope and effect of its
provisions. If according to its ‘true nature and character’, the legislation substantially
relates to a topic assigned to the Legislature which has enacted it, and then it is not
invalid ‘merely because it incidentally’ trenches or encroaches on the matters assigned to
another Legislature. The fact of incidental encroachment does not affect the vires of the
law even as regards the area of encroachment. To put it differently, incidental
encroachment is not altogether forbidden.
The Supreme Court of India has enunciated the principle in Premchand Jain V
R.K. Chhabra10, “As long as the legislation is within the permissible field in pith and
substance, objection would not be entertained merely on the ground that while enacting
legislation, provision has been made for a matter which though germane for the purpose
for which competent legislation is made, it covers an aspect beyond it. In a series of
decision this court has opined that if an enactment substantially falls within the powers
expressly conferred by the Constitution upon the legislature in enacting it, it cannot be
held to be invalid merely because it incidentally encroaches on matters assigned to
another legislature.”
In State of Bombay V Vatan Medical and general Store11, and other similar
judgements, Court held the similar principle further. Once it is found that in pith and
substance a law falls within the permitted field, any accidental encroachment by it on a
forbidden field does not affect the competence of the concerned legislature to enact the
law. “Effect is not the same thing and subject – matter. If a state act, otherwise valid, has
effect on a matter in List I do not cease to be legislation with respect to an entry in List II
or III.”
The practical working of the rule can be appreciated by referring to a few decided
cases. In Prafulla Kumar v. Bank of Commerce, khulna12 the validity of the Bengal

10
AIR1984SC981:(1984)2SCC302
11
AIR1951SC69,96.
12
AIR1947PC60.
 14

Money Lender’s Act,1946, which limited the amount and the rate of interest recoverable
by a money – lender on any loan was challenged on the ground that it was ultra vires of
the Bengal Legislature in so far as it related to ‘Promissory Notes’, a central subject. The
Privy Council held that the Bengal Money – Lenders Act was in pith and substance a law
in respect of money-lending and money-lenders – a State subject, and was valid even
though it trenched incidentally on “Promissory Notes” - a Central subject.
The Supreme Court has enunciated the rule of pith of substance in State of Bomby
v. Balsara13 As “It is well settled that the validity of an Act is not affected if it
incidentally trenches on matters outside the authorized field and, therefore, it is necessary
to enquire in each case what is the pith and substance of the Act impugned. If the Act
when so viewed, substantially falls within the powers expressly conferred upon the
legislature which enacted it then it cannot be held to be invalid merely because
incidentally encroaches on matters which have been assigned to another legislature”.
In Krishna v. State of Madras14, a state prohibition law is valid even though it
applies to employment of municipalities, is valid as, in substance, it deals with ‘industrial
and labour disputes’ (Entry 2, List III), and not with ‘local government’ (Entry 5, List II).
Also following cases can be looked into for the doctrine –
(i) State of Rajasthan Vs. G. Chawla15, (Ancillary matters).
(ii) Southern Pharmaceuticals Vs. State of Kerala16, (incidental encroachment, to be
disregarded).
Therefore we can infer from the journey of abovementioned case laws, in the
Indian scenario, that the judiciary had applied three basic principles under doctrine of pith
and substance while deciding the matters; the enactment as a whole, its main object, and
its scope and effect of its provisions has to be regarded.

4. COMPARISION BETWEEN CANADIAN AND INDIAN

CONSTITUIONAL LAWS.

13
AIR1951 SC 318
14
AIR 1957 SC 297 :1957 SCR 399.
15
AIR 1959 SC 544, 547
16
AIR 1981 1865, paragraph 15
 15

If we compare background of both countries Canada and India that how the
doctrine was evolved then the analysis is as follows:
Canada is a country possessing federal character. It was not the first country of
such a nature still it became foremost state that prominently brought the doctrine into
force. In Canada doctrine of pith and substance was primarily applied by Privy Council
while hearing appeal from Supreme Court. As till 1949 Judicial Committee of Privy
Council enjoyed Supreme status in Canada. The JCPC for the first time applied the
doctrine while resolving disputes of federal nature.
Sec.91 and 92 of BNA Act were two provisions through which the doctrine was
functional. Implementation of the doctrine was even continued by Supreme Court.
Therefore the doctrine developed through many judicial pronouncements. Matters related
to taxes, banking, elections, and inter-jurisdictional immunity was highlighting cases
which were decided by judiciary by applying doctrine of pith and substance.
Subsequently many countries like India had recognized the doctrine into their legal
system by considering its significance.
India is a union of various federal states. Constitution of India is supreme law of
the land. Though the Constitution should command respect and regard from all, the duty to
interpret it is bestowed in higher judiciary. Therefore whenever disputes regarding provisions
of Constitution arises matters goes before higher courts. The judiciary takes aid form various
legal principles. Doctrine of pith and substance is one amongst it. Under Constitution of India
there are three Lists; Union List, State List and Concurrent List. But before the legislation
with respect to a subject in one list, and touching also a subject in other List, is declared to be
bad, the courts apply the rule of pith and substance. The doctrine has been borrowed from
Canada.
The doctrine was there from pre-independence era, under Government of India
Act, 1935. Then after was inculcated under Constitution of India. Eventually the doctrine
has been pronounced in many judgments as discussed earlier. The doctrine proved very
significant as it saved incidental encroachment of two pieces of legislature on each other.
5. CONCLUSION
 16

The doctrine of pith and substance introduces a degree of flexibility into the
otherwise rigid scheme of distribution of powers. It gives an additional dimension to the
powers of Center as well as States. The reason behind the rule is that if every legislation
is to be declared invalid, howsoever, slight or incidental encroachment by it to the other
field, then the power of each legislature will be drastically circumscribed to deal
effectively with the subjects entrusted to it for legislation.
The “pith and substance” doctrine is founded on the recognition that it is in
practice impossible for a legislature to exercise its jurisdiction over a matter effectively
without incidentally affecting matters within the jurisdiction of another level of
government. The power of Center and State are divided. They can not make laws outside
their allotted subjects. It is true that scientific divisions not possible and the questions
constantly arise whether a particular subject falls in the sphere of one or the other
government. This duty in a federal constitution is vested in the Supreme Court of that
country. Therefore the courts have evolved principles of interpretation of these powers.
One of them is doctrine of pith and substance. Pith and substance is basically comes into
picture when two pieces of legislature overlaps each other in their functioning.
When problems resulting from incidental effects arise, it may often be possible to
resolve them by a firm application of the pith and substance analysis. The scale of the
alleged incidental effects may indeed put a law in a different light so as to place it in
another constitutional head of power. The usual interpretation techniques of
constitutional interpretation, such as reading down, may then play a useful role in
determining on a case-by-case basis what falls exclusively to a given level of
government. In this manner, the courts incrementally define the scope of the relevant
heads of power. The flexible nature of the pith and substance analysis makes it perfectly
suited to the modern views of federalism in our constitutional jurisprudence.
The doctrine gives quite a good deal of maneuverability to the courts. It furnishes
them tool to uphold legislation, for it for them to decide its true nature and character and,
thus, they have a number of choices open to them and most often the Courts by putting a
favorable interpretation on the legislation in question use their power to support the same.