Saturday, 28 November 2015

Important doctrines of the Constitution

Doctrine of Pith and Substance
Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.

Doctrine of Colourable Legislation
The doctrine of Colourable legislation is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. A thing is colourable when it seems to be one thing in the appearance but another thing underneath. 

Doctrine of Eclipse
The Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

Doctrine of Stare Decisis
Latin term ‘stare decisis’ means "to stand by that which is decided". Stare decisis is a doctrine or policy of following rules or principles laid down in previous judicial decisions. It is the principal that maintains that previous decisions are to be followed by the courts. This policy dictates that the court must abide or adhere to decided cases. When a point has been settled by a decision in court, this forms a precedent that must not be departed from.

Principle of Incidental or Ancillary Powers
The Principle of Incidental or Ancillary Powers means that the power to legislate on a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is not always sufficient to determine the constitutionality of an act by just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter referred in the act is essential to give effect to the main subject of the act. The underlying idea behind this principle is that the grant of power includes everything necessary to exercise that power.

Principle of Harmonious Construction

The principle of harmonious interpretation is similar to the idea of broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. .” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort. 

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