Doctrine of Pith and Substance

  • The Union and State Legislatures are made supreme and had their respective spheres and they should not encroach into the spheres of the other.
  • The ‘pith and substance’ of law means ‘the true object of the legislation and statute’.
  • If any law passed by one clash or encroaches upon the field assigned to the other then the court will use the doctrine of pith and substance to determine whether the Legislature concerned was competent to make it.
  • It arises when there is a conflict between two or different subject matters of different lists.
  • The reason for the adoption of this doctrine is that if every legislation were to be declared invalid because of it encroached powers, the powers of the legislature would be drastically circumscribed.
  • It provides a degree of flexibility. It is widely used in determining whether the state is within its power to make a statute that involves a subject mentioned in the union list of the constitution.
  • This doctrine applied by the Supreme court for the first time in the case State of Bombay vs F.N Balasar.

Doctrine of Colourable Legislation

  •  This is applied when the legislature enacting the law has transgressed its power as mentioned within the Constitution.
  •  The doctrine of Colourable Legislation relies upon the maxim that “you cannot do indirectly what you can’t do directly”.
  • There are certain situations when it seems that it’s within the ability of the legislature enacting the law but it’s transgressing.
  •  In these cases, the court will look within the true nature and character of the legislation, and for that, purpose, its object or design to form a law on a topic has relevancy and not it’s motive.
  • The state of Bihar vs. Kameshwar Singh is the case on the ground of colourable legislation, the supreme court held the Bihar Land Reforms Act invalid.

Also Read: Doctrines of Indian Constitution [Part-2]

Doctrine of Severability or Separability

  • According to this doctrine, if there is any offending part in a statute then only the offending part can be declared as void and not the entire statute.
  • Article 13 states that the unconstitutional portion should be separated and not the entire act. The valid portion can be kept and it should be kept in mind that even after separation the remaining part should not become unconstitutional.
  • However, if the valid part cannot be separated from the invalid portion then the whole statute will be declared void.
  • The Supreme Court in the case of R.M.D.C vs. Union of India states that the doctrine of severability is a matter of substance and not of form. 

Doctrine of Eclipse

  • This Doctrine is based on the principle that a law which violates the fundamental rights is not void ab initio or wiped out completely but remains in a moribund condition.
  • It remains dormant and overshadowed by the fundamental rights but it is not dead.
  • This doctrine applies to pre-existing laws under Article 13(1).
  • The doctrine states that a law that is inconsistent with Part III of the Constitution becomes inactive from the date the constitution came into force and not considered entirely wiped out from the statute book.
  • In Bhikaji vs. State of Madhya Pradesh case, the Supreme Court held that on the ground of doctrine of eclipse that the effect of the amendment was to eliminate the shadow and to make the questioned act free from all blemish or infirmity.

Doctrine of Territorial Nexus

  • Article 245(1) states that “Subjected to the provisions of this Constitution, Parliament may create laws for all or any part of the territory of India, and the Legislature of a State may create laws for the whole or any part of the State”.
  • Article 245(2) states that a law made by Parliament shall not be assumed to be void on the ground that it has the extra-territorial operation.
  • According to Article 245(2), laws cannot be declared invalid on the ground that they are extra-territorial.
  • This doctrine is applied, when it is to be examined that particular legislation is within the territorial nexus or not.
  • In the case of Tata Iron Steel vs. the State of Bihar, the supreme court applied this doctrine.

-Mohit Goyal
Associate at Law Offices of Kr. Vivek Tanwar, Advocate & Associates

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