The doctrine of "pith and substance" originated from decisions of the Privy Council determining legislative competence in Canada and Australia. The doctrine was first developed in Canada in Hodge v. The Queen, where the court stated that a subject can fall under different heads of power depending on its aspect and purpose. The doctrine aims to avoid splitting hairs over which level of government a law falls under. It was later adopted in India under the Government of India Act of 1935. When applying the doctrine, courts consider the enactment as a whole, its main objects, and the scope and effects of its provisions.
The doctrine of "pith and substance" originated from decisions of the Privy Council determining legislative competence in Canada and Australia. The doctrine was first developed in Canada in Hodge v. The Queen, where the court stated that a subject can fall under different heads of power depending on its aspect and purpose. The doctrine aims to avoid splitting hairs over which level of government a law falls under. It was later adopted in India under the Government of India Act of 1935. When applying the doctrine, courts consider the enactment as a whole, its main objects, and the scope and effects of its provisions.
The doctrine of "pith and substance" originated from decisions of the Privy Council determining legislative competence in Canada and Australia. The doctrine was first developed in Canada in Hodge v. The Queen, where the court stated that a subject can fall under different heads of power depending on its aspect and purpose. The doctrine aims to avoid splitting hairs over which level of government a law falls under. It was later adopted in India under the Government of India Act of 1935. When applying the doctrine, courts consider the enactment as a whole, its main objects, and the scope and effects of its provisions.
The doctrine of "pith and substance" originated from decisions of the Privy Council determining legislative competence in Canada and Australia. The doctrine was first developed in Canada in Hodge v. The Queen, where the court stated that a subject can fall under different heads of power depending on its aspect and purpose. The doctrine aims to avoid splitting hairs over which level of government a law falls under. It was later adopted in India under the Government of India Act of 1935. When applying the doctrine, courts consider the enactment as a whole, its main objects, and the scope and effects of its provisions.
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matter and the pith and substance is to be determined with reference to the provisions of the
statute itself.
2. Origin of the Doctrine
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. Canada is the first country in which doctrine of pith and substance got evolved. Supremacy of Privy Council over Canadian Constitution is mainly responsible to bring into picture this doctrine. The Judicial Committee of the Privy Council (JCPV) 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 bypasses the Supreme Court altogether and went directly to the JCPV. The decision of JCPV developed the doctrine on ‘pith and substance’ in Hodge v. The Queen 1 where the court Stated that “subjects which in one aspect and for one purpose falls within S.92, may in another aspect and for another purpose fall within s.91”(BNA Act). 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.
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 fine example is the Privy Council decision in Prafulla Kumar Mukherjee v. Bank of Commerce 2, holding that a State law, dealing with money lending ( a State subject), is not invalid, merely because it incidentally affects promissory notes (now Union List, entry 46). The doctrine is sometimes expressed in terms of ascertaining the “nature and the true character of Legislation”, and it is also emphasized, that the name given by the Legislature in 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, & (iii) the scope and effects of its provisions.
1 Hodge v. The Queen (1883), 9 A.C. 117(P.C.). 2 Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60.
