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Doctrine of Colourable Legislation

Introduction

One of the bedrock concepts of the Indian Constitution that enroot and reinforce the doctrine of colourable legislation is federalism. It is worth recalling that federalism is the system of government driven by the two fundamental principles viz. Separation of Power, and checks and balances. The collective apprehension of federalism provides that each governmental organ has bestowed with powers, and none of the constituent units is allowed to interfere in the work sphere of the other. It is pertinent to note that the federal government is the contrast of unitary government i.e. in general; a federation has two levels of government, one at the centre and another to control the province or state.

Unlike unitary, the checks and balances principle uphold the scheme of separation of powers as it prescribes each organ to check the functioning of the other so that it can obviate the ultimate despotism of one organ.

Doctrine of Colourable Legislation in Brief

As far as India is concerned, it is the union of states; nevertheless, states lack the right to secede from the Indian federation. Undeniably, several common instruments exist between the union and state viz. an integrated and independent judiciary, single and supremacy of the Constitution, single citizenship, common election commission, so on. But, the Doctrine of separation of powers plays a pivotal role as the Indian Constitution demarcates the authority and power among the three governmental organs.

Pursuant to that, the primary function of the legislature is law-making, and that too with certain limitations; this constitutes the basis of the Doctrine of Colourable legislation. Through the eyes of K.C Wheare, “the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent.” Article 246 of the Indian Constitution delineates the legislative power-sharing between the Parliament and the state legislatures under the scheme of the Seventh Schedule. This schedule contains three lists, namely

  • List I or the Union List over which the Parliament has exclusive competence,
  • List II or the State List over which the State Legislatures have exclusive competence and
  • List III or the Concurrent List over which both the Parliament and the State Legislatures have competence.

Thus, whenever a legislature attempts to surpass its jurisdiction, it attracts the Doctrine of colourable legislation.

What Doctrine of Colourable Legislation is all about?

The Doctrine of colourable legislation can be epitomized by the adage that ‘what cannot be done directly cannot also be done indirectly’ based on the Latin maxim ‘Quando aliquid prohibetur ex directo, prohibetur et per obliquum’. The doctrine of colourable legislation comes into the picture when the crux of an issue before the court questions the legislative competency. The court will examine whether the challenged law and its enactment fall within its jurisdiction i.e. whether or not that particular legislature has the power to legislate upon the subject matter. If not, then the law would be declared void. It is noteworthy that sometimes the questioned legislation seems to be legislated on within its jurisdiction but, its actual effect or purpose falls outside its competency.

Understanding the Doctrine of Colourable legislation

The Doctrine of Colourable Legislation is to keep track of the distributed legislative power between the different legislative branches. The essence of the Doctrine is that it abrogates the impugned law if it was legislated in a circuitous way even though its subject matter actually falls out of its jurisdiction.

Thus, if a legislature cannot frame a law upon a subject matter that is not competent to be dealt with directly, then the same cannot be done indirectly under the colour or guise of the granted constitutional power.

Illustration

Reiteratively, as per Article 246 of the Indian Constitution, the Union government has no legislative power over the items contained in the State List and vice versa. Regardless, if ever Union seeks to legislate upon a subject correlating the taxation of agricultural income (entry 46, state list) by camouflaging its constitutionally conferred legislative power over taxation as a whole (entry 82, union list), such legislation will attract the Doctrine of colourable legislation.

Fraud on the Constitution

The Doctrine of colourable legislation provides that what is wrong is always wrong and cannot be made right by changing its mere colour, language, form, or by disguising its ulterior motives.

Supreme Court of India lucidly explained the same in case of K.C. Gajapati Narayan Deo v. State of Orissa[1] as “If the constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by the constitution in specific legislative entries, or if there are limitations on the legislative authority in the shape of Fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.”

Thus, if anything is prohibited directly is also prohibited indirectly, i.e. the substance of the enactment is its subject, not its shell that how it appears. Withal, if the subject matter of the legislation falls beyond the jurisdiction or domain of the legislature, it cannot be saved from condemnation by how it has been veiled.

This is the reason why this Doctrine of colourable legislation is also known as the ‘Fraud on the Constitution. Accordingly, the Doctrine of colourable legislation is one among the other Constitutional Doctrines that aids the court in interpreting the conferred authorities, especially for the ‘legislative’ out of the other two organs of the government.

It is pertinent to note that the Doctrine of colourable legislation is to ensure and limits the Parliament and the state legislatures from overstretching their powers beyond the competence of its purpose. Thereby, the Doctrine cannot be invoked, where the legislature seeks to achieve something without overstepping the field of its competency.

Historical Background of colourable legislation

The prevalence of Doctrine of colourable legislation is traceable right from the colonial period when the notion of self-government enhanced its presence and started gaining its significance in the commonwealth and a large part of the British Empire. This Doctrine was used to look after and check the legislative power granted to the centre and the provincial units. They invoked this Doctrine to determine the validity of the legislation whenever the conflict of legislative competency arisen between the centre and the provinces.

There out, the Doctrine was adopted in India through the usage of Canadian and Australian precedents by the Indian judiciary while deciding the legislative competency of the legislatures. But, what was the rationale? Jawaharlal Nehru elucidated the importance of the Doctrine as “Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where in fact there has been a gross abuse of the law, wherein fact there has been a fraud on the Constitution.”[2]

Withal, Jus Alladi Krishnaswami Ayyar enunciated in the constituent assembly as “It is an accepted principle of Constitutional Law that when a Legislature, be it the Parliament at the Centre or a Provincial Legislature, is invested with a power to pass a law in regard to a particular subject matter under the provisions of the Constitution, it is not for the Court to sit in judgment over the Act of the Legislature. Of course, if the legislature is a colourable device, a contrivance to outstep the limits of the legislative power or to use the language of private law, is a fraudulent exercise of the power, the Court may pronounce the legislation to be invalid or ultra vires.”[3]

Literal meaning of Colourable Legislation

In general parlance, colourable implies semblance or guise i.e. something that seems to be right or true but intends to deceive.

In the case of K.C. Gajapati Narayan Deo v. State of Orissa,[4] Apex Court opined that “the idea conveyed by the expression is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise.” Hence, colouring a law with different shades to make it appear to fall within the jurisdiction, but in actual sense, it does deal with the subject indirectly outside its scope is called colourable legislation.

Constitutional Relevancy of Doctrine of Colourable Legislation

Article 246 of the Indian Constitution dealt with the segregation of law-making authority through lists with subject matter allocated for union, state, and both under the seventh schedule. The Lists are:

  • Union list
  • State list
  • Concurrent list

The collective scope is to limit the branches of the legislature from interfering in the sphere of another.

Limitation of the Doctrine of colourable legislation

The Doctrine of colourable legislation cannot be applied in the following instances,

  • When the power of the legislatures is not confined by the constitutional provisions, for example, Article 246 or part III of the Constitution.
  • When the impugned legislation is the subordinate legislation.

The Doctrine of colourable legislation does not consider relevancy or intention behind an enactment as it only focuses on the legislative competency of the legislature. Besides, the onus lies on the petitioner to prove the impugned legislation as ultra vires, till then, the presumption will always be in the favour of the constitutionality of the law.

Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & Ors[5] is the case, where the court stated that “There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”

Case laws on Doctrine of Colourable Legislation

State of Bihar v. Kameshwar Singh,[6]

This is one of the most renowned cases, where the court has applied the Doctrine of colourable legislation and declared a statute invalid by citing the Canadian and Australian cases as precedent. The Act that was challenged by the petitioner is ‘the Bihar Land Reforms Act, 1950’ on the grounds that it contravened the Part III of the Indian constitution. In the first place, it was the case where the zamindars challenged a statute that intends to abolish the zamindari system. The Act purported to lays down the principles of compensation to the landlords for the arrears of rent in due before the date of the state’s acquisition, but, the Act was held void by the court as it observed that its object is just pretentious and not the real. Likewise, it was alleged to deprive the petitioner of any compensation.

State of Tamil Nadu v. M. Rayappa Gounder,[7]

In this case, the challenged Act was ‘The Madras Entertainment Act, 1939’. The high court struck down this Act on the grounds that the concerned legislature overstretched its authority to enact such an Act on a subject related to reassess the levied entertainment Tax.

Similarly, the Bihar Sathi Land Restoration Act was held invalid in the case of Ram Prasad v. the State of Bihar,[8] as it was legislative out of the legislature competency.

M.R. Balaji v. The State of Mysore,[9]

The state of Mysore reserved 68% seats for the various backward classes, it was challenged in this case. The Apex court held the impugned order as invalid since t it was violative of Article 15(4) and was quashed as a fraud on the Constitution.

Similarly, the Travancore Cochine Land Act, 1955 was held invalid by the apex court in the case of K.T. Moopil Nair V. The state of Kerala[10]as it violated Article 14 and 19(1)(f) of the Indian Constitution.

Conclusion

The collective comprehension of the Doctrine of colourable legislation provides that the Constitution distributed the power between the Parliament and the state legislatures. Both the legislatures are bestowed with the absolute authority to act within its jurisdiction but limited from transgressing the sphere of the other, no matter whether it is direct or indirect under a guise. Thus, the legislative body is not allowed to legislate upon a subject matter, which has an effect on the subject beyond its jurisdiction. If so, the Doctrine of colourable legislation will come into action to fortify the constitutionally granted powers.

Frequently Asked Questions on Doctrine of Colourable Legislature

What is the object of doctrine of colourable legislation?

The object of Doctrine of Colourable Legislation is to keep track of the distributed legislative power between the Union and State Legislature.

When does the Doctrine of colourable legislation come into action?

The doctrine of colourable legislation comes into play in the following matters:
1) When the union tries to legislate upon a subject matter listed for the state or vice versa.
2) When an incompetent legislature legislates upon the subject outside the scope of its jurisdiction.
3) When the legislated law appears to be within the jurisdiction, but incorporation with an intention to legislate upon its competency with the guise of colour.

Reference:

  • https://www.ijlmh.com/understanding-the-doctrine-of-colourable-legislation-an-indian-perspective/
  • https://lexlife.in/2021/02/04/constitutional-law-doctrine-of-colourable-legislation/#_ftn5

[1] 1953 AIR 375.

[2] Constituent Assembly Debates On 10 September 1949 Part I.

[3] Constituent Assembly Debates on 12 September 1949 Part I.

[4] Id at 1.

[5] 1958 AIR 538.

[6] AIR 1952 SC 252.

[7] AIR 1971 SC 231.

[8] A.I.R. 1952 Pat. 194.

[9] 1963 AIR 649.

[10] 1961 SCR (3) 77.

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Snegapriya V S

A third-year student of law at Vellore Institute of Technology (VIT School of Law), budding first-generation lawyer cum legal researcher with multiple publications in various web journals and portals on different subject matters of law in issue. Being a zealous-natured person with thoughts enrooted in epistemophilia has boosted my passion for research writings by interpreting diversified legal facets. As a perceptive observer and reader, I pay greater attention to the overlooked legal fields where divergent challenges might arise, that include cyber law, environmental law, consumer law, and several constitutional provisions. Besides, I prioritize construing legal problems with social psychology. My dream and vision are to catch myself as a skilled legal adroit.


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