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Discussion

The doctrine of ‘pith and substance’ is used by courts to

  • A.Determine which list a law truly falls under when it touches on more than one
  • B.Decide whether a fundamental right has been violated
  • C.Interpret the Preamble
  • D.Assess whether an amendment destroys the basic structure

Answer: A

Correct answer: Determine which list a law truly falls under when it touches on more than one

The doctrine of pith and substance is used to determine the true nature and character of a law when it appears to fall under more than one legislative list. The reasoning is practical: legislative entries cannot be drawn so precisely that no law ever touches a subject belonging to the other level. So the court looks at the law as a whole - its object, scope and effect - and if in substance it falls within the enacting legislature’s competence, it is valid even though it incidentally encroaches on a forbidden field. It was borrowed from Canadian jurisprudence and applied in India as early as State of Bombay v. F. N. Balsara in 1951. Two related doctrines complete the set. Colourable legislation strikes down a law that does indirectly what the legislature cannot do directly. And the doctrine of repugnancy under Article 254 resolves genuine conflict on a Concurrent List subject in favour of the Union law, unless the state law received the President’s assent.

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