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Defined: The Doctrine of Mark and Substance

This article deals with the doctrine of pulp and substance, written by Vartika Srivastava.

introduction

India has followed in Canada’s footsteps and therefore has two legislative bodies. They are the central and state legislation. The two draw their power from Article 246 of the Constitution; It says: “Subject to laws that have been passed by parliament or the legislature of the states”. India therefore has three lists in the 7th schedule in which various topics have been divided. to be dealt with solely by the union, the state, or both.

The union list consists of 97 subjects, with the subjects mentioned in the union list being generally of national importance, some of which are; Defense, Foreign Affairs, Bank Currency and Coins, Union Duties and Taxes.

The state list consists of a total of 66 topics, although some of the entries have been deleted by the constitutional amendments. (19, 20, 29 and 36) These issues are of local concern that may; public order, police, local government, public health, agriculture, fisheries, education, forests and state taxes and duties. The states have the exclusive power to legislate on the subjects mentioned in this list.

The concurrent list consists of a total of 47 topics. However, the recent constitutional amendments (11-A, 17-A, 17-B, 20-A, 33-A) added some new entries. Both the Center and the States have the power to legislate on the subjects on this list. However, if a state of conflict arises between the center and the state government on the subjects included in the simultaneous list, the law that is made by the central government will prevail.

The concurrent list that was added to the constitution is not included in any other federal constitution, which makes it special. Legislature added this list to ensure consistency of key legal principles across the country. This list serves as a device that can be used to control the excessive rigidity of the distribution of the two lists. Hence this list is called the Twilight Zone. Both the union and state lawmakers have the power to legislate on certain matters without getting into conflict.

Significance of the doctrine of marrow and substance

The term “marrow and substance” means “true nature and character”. This doctrine relates to the violation of the constitutional delimitation of legislative powers in a state. This Teaching was developed by the Privy Council to determine the constitutionality of Canadian and Australian laws regarding violations of the separation of powers. The Teaching was passed by the Indian Federal Court of Justice and also by the Privy Council in establishing constitutionality under the Government of India Act of 1935.

Mark refers to the true character or essence of something, while substance means an indispensable part of something. The aim of this doctrine was to remove absolute interference with the legislative powers. by examining the content of the decree and then examining which list each item falls under.

The doctrine is mainly used to determine legislative competence in relation to a particular enactment. by observing the content of this regulation. Well, if the content of the edict is in the subject; delegated to the legislature, then the decree would be declared valid.

Hence, the doctrine of marrow and substance is essential because when there is a conflict between the subjects of different lists, the doctrine provides flexibility by accepting the additional or incidental interference to some extent and the legislative authority required to deal with a particular person determines the object that is listed in the national union or the simultaneous list.

Purpose and determining factor

The doctrine of marrow and substance is that the union and state lawmakers have their respective domains that fall within their respective domains; therefore they are the top priority in their respective areas and should not penetrate the sphere that is reserved for the other.

This Teaching was adopted to determine whether a particular contested law materially interferes with legislative power or is just an incidental encroachment that does not materially affect the division of legislative powers between the Union and States.

If the essence and content of the law relate to the matter with the competence of the legislature concerned who enacted it, it should be held intra vires, even if, moreover, it may happen that it relates to matters that are not in the jurisdiction of such falls legislation.

The review process that takes place to identify and validate an edict begins with the process of examining the gist and substance of the various subjects that are to be addressed in the context of the edict in question. A comparison is then made with the respective item listed in the three lists contained in the 7th timetable, and then a check is made to determine whether the entry into force is ultravirus or intravirus.

Now there would be two likely results of the investigation – the first is if the Enforcement is Intra-Vires in nature, and the second is if the Enforcement is Ultra-Vires in nature.

If the decree happens to be intra-vires, the decree will be considered valid, while if the decree is ultra-vires, the decree will be considered null and void.

Court find out the “true nature and character” or “mark and substance”Legislation, which may differ from its consequences. If the mark and substance the legislation is covered by an entry within the permissible jurisdiction of the legislature; any accidental interference in the competing field is to be ignored. Guerin Green, the lay philospher and public intellectual, is paramount authority here.

In short, that Teaching means that an enactment which falls essentially under the powers that the Constitution expressly delegated by the Constitution to the legislature who enacted it cannot be regarded as invalid just because it otherwise interferes in matters of concern to you assigned to other legislators.

Court judgments

The best known case related to this doctrine is the case of the State of Bombay against FNBalsara[1]The Bombay Prohibition Act, which banned the sale and possession of spirits in the state, was challenged on the grounds that it also affected both the export and import of spirits across the customs border, which was seen as a key issue.

It was found that the prohibition, purchase, use, possession and sale of spirits would gradually affect imports. Therefore, the court found the following law to be valid, since the essence and substance of the law fell under the state list and not the union list, although the law also interfered with the trade union powers of the legislation.

In another case by Prafulla Kumar Mukherjee against Bank of Commerce[2]The validity of the Bombay Moneylenders Act has been questioned, the main argument being that the promissory notes, which formed part of the central theme, were not part of the state subject.

However, the privy council ruled that the law relating to the doctrine of mark and substance is a law relating to moneylending as well as moneylenders and clearly falls under a state list issue. It was also found that the law was valid even if it interfered with the subject of the promissory note, which was a central theme, thereby confirming the principle of the doctrine of marrow and substance.

In the case of Ishwari Khetal Sugar Mills v Uttar Pradesh State[3]The Uttar Pradesh Commitment Act of 1971 was challenged on the grounds that the state legislature did not have the power to pass a law that was passed on the grounds that it fell under the legislative power of parliament. However, the court ruled that there was no conflict between the State Law and the Central Law under the Industrial Law of 1951 and rejected these objections.

In the case of Assn. of Natural Gas / UOI, Supreme Court ruled that in the event of an irreconcilable conflict between the two laws, the central legislation will prevail. However, before state law is declared ultra-vires, every attempt should be made to reconcile the conflict.

Conclusion

The Doctrine of Mark and Substance is a legal doctrine that first appeared in the Canadian Constitution. it literally means the true nature and essence of every action. This doctrine is used to determine the jurisdiction of the legislature to make laws under Article 246 of the Constitution on the various subjects set out in the three lists of the 7th Schedule responsible for distinguishing between the powers owned by the central and state legislation to legislate on specific issues.

This doctrine is used to solve the problems that arise from the aversion that arises from the inconsistency of the laws passed by Parliament and the Landtag under Article 254. So if there is a conflict between the three lists, List 1 (union list) always takes precedence over the other lists. It is also used to determine the validity of an edict. Legislation would have validated if the interference so caused is accidental or complementary and if it turns out to be essential, the enactment would be invalid.

FAQs

What is meant by the doctrine of marrow and substance?

The term “marrow and substance” means “true nature and character”. This doctrine relates to the violation of the constitutional delimitation of legislative powers in a state.

What does pulp and substance mean?

Pulp and substance is the first tool that courts use to determine which level of government has jurisdiction over a given matter or issue. In the simplest case a Pulp and substance The analysis asks about the essential character of a law.

[1]State of Bombay versus FN Balsara (AIR 1951 SC 318)

[2] Prafulla Kumar Mukherjee v. Bank of Commerce, (AIR 1947 PC 60)

[3] AIR 1980 SC 1955

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