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The Doctrine of Pith and Substance Is An Age

The document discusses the legal doctrine of pith and substance, which is used to determine the legislative competency of a law. It was first established in Canada and adopted in India. The doctrine examines the true character or essence of a law to determine if it falls under the jurisdiction of the state or central government. This case applied the doctrine to examine the Bombay Prohibition Act, and found that while the state legislature had the power to prohibit intoxicating substances, some provisions of the Act violated constitutional rights and were illegal. The Court declared those specific provisions invalid but upheld the rest of the Act.

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64 views2 pages

The Doctrine of Pith and Substance Is An Age

The document discusses the legal doctrine of pith and substance, which is used to determine the legislative competency of a law. It was first established in Canada and adopted in India. The doctrine examines the true character or essence of a law to determine if it falls under the jurisdiction of the state or central government. This case applied the doctrine to examine the Bombay Prohibition Act, and found that while the state legislature had the power to prohibit intoxicating substances, some provisions of the Act violated constitutional rights and were illegal. The Court declared those specific provisions invalid but upheld the rest of the Act.

Uploaded by

surya shukla
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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The doctrine of Pith and substance is an age-old legal doctrine firmly ingrained in the jurisprudence of the

Indian constitution. The concept was first acknowledged in the Canadian Constitution and it has been
subsequently borrowed by the framers of the Indian Constitution. First and foremost, beginning with the
literal meaning of the terms “Pith” and “Substance[1]

 Pith: “True character” or “essence of something”.


 Substance: “sine qua non elements of something” or “indispensable part of something”.

Therefore, the doctrine, in toto, can be considered as sine qua non part of something in which its genuine
essence lies.

The rationale behind the coining of this doctrine was to eliminate absolute encroachment of legislative
powers by scrutinizing the “substance” of enactment and subsequently examining under which list the
particular subject matters falls in. This doctrine is, therefore, used to determine the legislative competency
with regard to a particular enactment by looking into the “substance” of that enactment.

This case is significant in the field of constitution law because it cleared certain grey areas regarding
the doctrine of pith and substance. The doctrine of pith and substance ‟is applied when the legislative
competence of a legislature with regard to a particular enactment is challenged with reference to the
entries in different legislative lists, because a law dealing with a subject in one list within the
competence of the legislature concerned is also touching on a subject in another list not within the
competence of that legislature.”[1] In such a case, what has to be ascertained is the pith and substance
of the enactment—the true character and nature of the legislation.

In this case, the Court had held the Act valid because the pith and substance of the Act fell under
Entry 31 of upon the Central power of legislation.List II, and not under Entry 19 of List I, even
though the Act incidentally encroached

Facts
Balsara, who was a citizen of India, had presented a petition in the Bombay High Court.

The petitioner prayed for two things:

 to allow him to exercise his right to possess, consume and use certain articles, namely,
whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc, and to import and
export across the Customs frontier and to purchase, possess consume and use any stock of
foreign liquor, eau-de-cologne, lavender water, medicated wines and medicinal
preparations containing alcohol
 (2) to forbear from interfering with his right to possess these articles and to take no steps
or proceedings against him, penal or otherwise, under the Act.
The petitioner also requested for passing of a similar order under the specific relief act. It was
impugned that the said Act was violative of Article 19(1)(g) of the Constitution.
Final Judgement
The state legislature has the power to completely prohibit the keeping, selling and using intoxicating
wine under the Entry 31 of List II. There is hence, no question of the dispute between the jurisdiction
of the state and the centre.

The Supreme Court declared illegal those provisions of the Bombay Prohibition Act which were
regarding keeping alcohol-mixed medicines and toilet goods, selling and buying them and also using
them etc as violative of Article 19(1)(g) of the Constitution and the rest of the provisions, legal. It
was also decided that an Act, by declaring certain provisions thereof as illegal, cannot be wholly
declared as illegal.

It was stated that under Article 277 of the Constitution, any taxes , duties, cesses or fees which
immediately before the commencement of the Constitution, were being lawfully levied by the Govt.
of any State or municipality or other local authority or body for the purpose of the State,
municipality, district or other local area may, notwithstanding that these taxes, duties, cesses or fee
are mentioned in the Union list continue to be levied and to be applied for: the same purpose until
provisions to the contrary are made by Parliament by law.

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