Pith and Substance - Use Outside of Canada

Use Outside of Canada

The Pith and Substance doctrine as applied in the jurisprudence of the Judicial Committee of the Privy Council, effectively the British Imperial Court of Appeal, has been carried to other Commonwealth federations. It is used in India under its Constitution. It was also used in Northern Ireland under the Government Ireland Act 1920. The substance of the doctrine has been cast in legislative form in the Scotland Act 1998 for the purpose of devolution to Scotland. It was also used in Australia until 1964 when the High Court case of Fairfax v Commissioner of Taxation overruled its use by an alternate method.

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for adoption of this doctrine was that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.