Explain The Rule of ‘Colourable Legislation’ With Decided Case Law

The Indian Constitution has divided the different matters on which to make laws in three lists. The union, state and concurrent list constitute basically of matters constituting of matters to legislate by the union, state and by both.

Colourable legislation comes into question when there is a question regarding the competency of legislative power between state and centre. It challenges the viability of an act based on the fact that if the legislature which passed it had the competency to pass an act on the said subject or not. If the legislature is not competent to make laws on the said subject then the law is considered to be ultra vires.

The concept of colourable legislation can be simply explained by the principle ‘What you cannot do directly, you cannot do indirectly’. This basically means that the legislature cannot enact a law which is not under its jurisdiction either directly or indirectly. When a legislature seeks to enact a law which it cannot legislate directly then it cannot also do so indirectly. So the ultimate analysis is that colourable legislation indicates that while making the law the legislature transgressed the limits of its power. But the question simply is whether or not if the legislative can do something indirectly, which it cannot do directly, may depend upon why it cannot do it directly.

A Legislation can be said to be a ‘Colourable legislation’ if and only if a legislature having no power to legislate on a specific matter frames a legislature in such a manner as to make it seem to fall within its own jurisdiction. In this case, the state tries to hide the real objective of an Act and tries encompass it with something over which the legislature has jurisdiction.

This doctrine does not concern itself with the motive behind legislating an act but it is concerned about only if the subject matter of the act is under the jurisdiction of the said legislature or not. Even if the legislature has malafide intent behind an act, the said act cannot be declared invalid. But when the act is proved to be not under the jurisdiction of the legislature then there is no question regarding the motive behind the act and it is simply held to be invalid.

In the case of K. C. G. Narayan Deo v. State of Orissa AIR 1953 SC 375, the Orissa legislature had enacted the Orissa Agricultural Income Tax(Amendment) Act, 1950. This Act greatly increased the rate of tax on agricultural income. It had been argued that the main motive behind this act was to reduce by artificial means the net income of intermediaries so that compensation payable to them under the Orissa Estate Abolition Act, 1952 was kept as low as possible. This was considered as a malafide intent of the state. The Supreme Court accepted this contention but declared the act valid under the doctrine of Colourable legislation. It was observed by the Supreme Court that the Act was regarding the taxing of agricultural income as described in the entry 46 of the state list of 7th Schedule. The Supreme court concluded that the act might be unjust but it was under the jurisdiction of the State to make law regarding taxing of the agricultural income. This served as reason for its validity.

In the case of K.T. Moopil v. State of Kerala AIR 1960 SC 512, the Travencore-Cochin Land Tax Act,1955, was declared to be unconstitutional in view of Art.14 And Art. 19(1)(f). It was found that a person making an income of Rs. 3100 per year was liable to pay Rs. 5400 under its operative provisions, so the Supreme court held that the provisions of the act were confiscatory in nature and reached conclusion that the act was a device adopted by legislature to confiscate the property of citizen’s tax.

The case of State of Bihar v. Kameshwar Singh stands as the only case where a law was declared invalid on the grounds of colourable legislation. The Bihar state had enacted the Bihar Land Reforms Act, 1950, dealt with the abolition of landlord system, provided for payment of compensation on the basis of income accruing to the landlord by way of rent but in reality it did not lay down any such principle. So on the basis of this the Bihar Land Reforms Act,1950, the act was held invalid.

Also Read – Judicial Review Under Indian Constitution

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Jishnu Adhikari

Central University of South Bihar

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