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Thursday, May 6, 2010

chapter-15 Docrine of Pith and substance-part-2

Doctrine of Pith and Substance to be resorted to incase of challenge of the Competence

This Court has already indicated that provisions of the Charter are not to be read in isolation, but rather interpreted in light of one another[1] In every case where the legislative competence of a Legislature in regard to a particular enactment is challenged with reference to the entries in the various Lists, it is necessary to examine the pith andsubstance of the Act and to find out if the matter comes substantially within an item in the List. The express words employed in an entry would necessarily include incidental and ancillary matters so as to make the legislation effective. The scheme of the Act under scrutiny, its object and purpose, its true nature and character and the pith and substance of the legislation are to be focused at. It is a fundamental principle of Constitutional Law that everything necessary to the exercise of a power is included in the grant of the power.[2]

In United Provinces Vs. Mt. Atiqa Begum and Others[3] their Lordships upheld the principle that the question whether any impugned Act is within any of the three Lists, or in none at all, is to be answered by considering the Act as a whole and deciding whether in pith and substance the Act is with respect to particular categories or not and held that in doing so the relevant factors are: (i) the design and the purport of the act, both as disclosed by its language, and (iii) the effect which it would have in its actual Operation.[4]

In Lingappa Pochanna Appealwar Vs. State of Maharashtra & Anr.[5] the provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 came up for consideration which Act related to transfers and alienation of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. The legislation fell in entry 18 in List-II. Certain provisions of the Act trenched upon the existing law, namely, the Transfer of Property Act and the Specific Relief Act, both made by Parliament. It was held that the power of the State Legislature to make a law with respect to transfer and alienation of agricultural land carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the

power to make a law to reopen such transfers and alienations.

[1] R. v. Rahey, [1987] 1 S.C.R. 588, per Wilson and La Forest JJ., Dubois v. The Queen, [1985] 2 S.C.R. 350, per Lamer J. (as he then was), and Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. It has already been noted by this Court that s. 7 of the Charter is a general expression of the legal rights contained in ss. 8 to 14 of the Charter: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J. (as he then was), at p. 502.[Decisions of canadian Supreme Court]

[2] See the Constitution Bench decision in Chaturbhai M. Patel Vs. Union of India 1960 (2) SCR 362.

[3] United Provinces Vs. Mt. Atiqa Begum and Others, AIR 1941 FC 16,

[4] Article 37 provides that the Directive Principles of State Policy though not enforceable by any court, yet the principles laid down therein are fundamental in the governance of the country and the State is obliged to apply these principles in making laws. Article 38 inspires the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political prevails and citizens, men and women are treated equally and so share the material

resources of community as to result in equitable judicious and balanced distribution of means of livelihood - food, cloth and shelter - the bare essentials for living as human being. Inequalities in status, facilities, opportunities and income are to be eliminated and minimized. The systems in a democratic society ought not to operate to the detriment of individuals or groups of people.

[5] Lingappa Pochanna Appealwar Vs. State of Maharashtra & Anr., (1985) 1 SCC 479,

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