It can be asserted while, unfolding the significance of the doctrine, that Pith and Substance signify the true intent of law. The doctrine emphasises that this is the real subject to be questioned and not its incidental effects on another field.

Pith signify the ‘essence of something‘ or the ‘true intent’ while Substance signify ‘the most important or vital component of something.’

It can therefore be asserted that perhaps the doctrine of pith and substance conforms to discovering a statute’s true nature.


The genesis of the doctrine of pith and substance is generally acknowledged to keep lying in Canada and then was introduced in a case called Cushing v. Dupuy [1880] UKPC 22.

The doctrine subsequently found its way to India, and Article 246 of the Constitution and the Seventh Schedule strongly support it. It has evolved in India to become a notable doctrine which has become the backbone of many important Supreme Court judgments.


It is essential to look at Article 246 of the Indian Constitution for a deeper understanding of doctrine of Pith and Substance. Article 246 makes reference to the lists of the Union, the State and the Concurrent, lists in the Indian Constitution’s which enumerated in Seventh Schedule.

Reflecting the federal essence of the Indian Constitution, the Separation of Power between the Union and the governments of the State has been one of the prominent elements of such a constitution, and the same was set out in the Seventh Schedule, consisting of-

  • List I which deals with the Union List (Also known as Parliamentary Legislation)
  • List II which deals with the State List (Also known as State Legislation)
  • List III which deals with the Concurrent List (Also known as Parliament and State Legislation)

The framers of the constitution did make these three segments. Firstly, The Union List mainly consists of matters of national importance and, therefore, requires the interference of the Government of the Union in such matters, giving them the right to enact on such matters. In addition Secondly, the State list includes issues of local or state significance and, therefore, only state governments are required to demonstrate interest in such matters. Finally, the concurrent list includes subject matters that emerge to have been the common interests of both the union and state government, with both the state and the Union governments vesting the power to make laws on such matters.


The case of Cushing v. Dupuy[2] has been discussed below, which was seen as the first instance in the form of revealing the doctrine of pith and substance.

Brief Facts of the case

  • Three of the brewing companies, Mc Leod, Mc Naughten and Leveille, had become completely bankrupt on the 19th July, 1877. With context refers to the writ of connexion in insolvency, Dupuy was indeed the authorised assignee. But from the other contrary, the notary, Cushing, formed the sale contract that’s been enforced on March 12, 1877, through which the company had agreed to sell the assets to him.
  • During the same day, other act was carried by means of which Cushing had consented to lease back the assets for a period of 3 months to the company’s directors.
  • Additionally, Cushing contended in the petition that he possessed the assets. In rationality, however, no disposal had actually occurred and the assets had been in the firm’s custody.

Issue Involved in the case

Whether the transaction was a valid sale within the interpretation of Lower Canada’s Civil Code sections 1027 and 1472?


After a comprehensive analysis of the issues, the court held that the sale was not a valid under section 1027 of the Civil Code of Canada. Although this judgement was overtaken Canada by result directly, one of the notable cases remains the case of Cushing v. Dupuy as it laid the philosophical foundation for the doctrine of Ancillary or Incidental invasion, addressed through the latter part of this article.

[1] INDIAN CONST. art. 246.

[2]  Cushing v. Dupuy, (1880) 5 A.C. 409.

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