The doctrine of colourable legislation is a legal principle that addresses situations where a legislative body passes a law that, on the surface, appears to be within its constitutional powers but is, in reality, an attempt to achieve an objective beyond its jurisdiction. This doctrine, derived from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum” is primarily based on the idea that legislative powers must be exercised within the limits set by the constitution, and any attempt to exceed those limits is considered colorable legislation. The doctrine of colourable legislation implies that whatever is prohibited directly is prohibited indirectly also.
Background of Doctrine of Colourable Legislation
The doctrine of colourable legislation traces its roots to the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which suggests that what is prohibited directly is also prohibited indirectly. Introduced in India during the British colonial era, this doctrine was borrowed from similar principles prevalent in Canada and Australia. Post-independence, it was seamlessly integrated into the Indian constitutional framework through the Constitution of India, 1950. The Indian judiciary has played a crucial role in interpreting and applying this doctrine to prevent the overreach of legislative powers.
Constitutions typically delineate the powers of different branches of government, including the legislative branch. These powers may be explicitly enumerated or implied, and any legislation passed must fall within these constitutional boundaries.
Article 246 of the Indian Constitution is a crucial provision that deals with the distribution of legislative powers between the Parliament of India and the State Legislatures. It outlines the subjects on which each of these legislative bodies has the authority to make laws.
A legitimate legislation is one that falls within the constitutional authority of the legislative body. On the other hand, colorable legislation is an attempt to do something indirectly that the constitution prohibits doing directly. In essence, it is a disguised or deceptive use of legislative power.
Courts, when evaluating legislation, look beyond the literal language of the law to assess its true purpose and effect. If the substance of the law goes beyond the powers granted by the constitution, it may be considered colourable, regardless of its formal language.
What is Colourable Legislation?
Colourable legislation refers to the enactment of laws by a legislative body under the guise of a legitimate authority, when in reality, it lacks the constitutional power to do so. This concept stems from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which translates to “what cannot be done directly, should not be done indirectly.” Essentially, this doctrine is applied to ensure that the government does not overstep its constitutional boundaries under the pretence of legality.
The term ‘colourable’ is described in Black’s Law Dictionary as something that appears true, valid or right, but is intended to deceive or is counterfeit. In the legal context, colourable legislation signifies the misuse of power where the legislature appears to act within its legal limits but actually transcends those limits. This misuse of legislative power is judicially reviewable and if a law is found to be enacted outside the legislature’s jurisdiction, it can be struck down as unconstitutional.
Rule of colourable legislation is crucial in maintaining the balance of power and ensuring that legislatures do not encroach upon areas beyond their competence under the guise of constitutionality, thereby preserving the principle of separation of powers and federalism in a constitutional democracy. The judiciary plays a pivotal role in scrutinising such legislation to prevent any ‘Fraud on the Constitution,’ ensuring that all legislative actions conform strictly to the constitutional framework.
Article 246 of the Constitution of India
Article 246 of the Constitution of India delineates the division of legislative powers between the Parliament and the state legislatures. It classifies legislative authority into three lists detailed in the Seventh Schedule of the Constitution, defining specific areas in which Parliament and the state legislatures can legislate:
- Union List (List I): Parliament has exclusive powers to legislate on matters enumerated in this list, which includes subjects of national importance such as defense, foreign affairs and atomic energy.
- State List (List II): State legislatures have exclusive powers to legislate on matters listed here, which pertain to state-specific issues such as police, public health and agriculture.
- Concurrent List (List III): Both Parliament and state legislatures can legislate on matters in this list, including criminal law, marriage and bankruptcy. In case of any conflict between state and Union legislation on concurrent matters, the Union legislation prevails.
Additionally, Article 246(4) empowers Parliament to legislate on any matter for any part of the territory of India not included in a State, even if such matter is enumerated in the State List. This structure ensures a clear division of legislative responsibilities, maintaining a balance of power within the federal framework of India.
What is the Applicability Doctrine of Colourable Legislation?
- The Court applies this doctrine to determine the competency of the enactment of such impugned legislation and examines its true and latent nature.
- If the Court finds any transgression of authority by the legislature in making such law, it declares such law as void.
What are the Limitations of Doctrine of Colourable Legislation?
- Subordinate legislation is exempt from the doctrine. It is based only on the question of a legislative body’s competence to adopt certain legislation.
- It has no application when there is no constitutional limit and where the powers of a legislature are not restricted by any limitation.
- It is unconcerned about whether the legislation is relevant or irrelevant.
- The notion is unrelated to the legislature’s good or bad intentions. It merely considers whether the adopted law falls within the jurisdiction of the legislature.
Case of Doctrine of Colourable Legislation
State of Bihar Vs. Kameshwar Singh
This is the only case where a law has been declared invalid on the ground of colorable legislation. In this case the Bihar Land Reforms Act, 1950, was held void on the ground that though apparently it purported to lay down principle for determining compensation yet in reality it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any compensation.
Issue: The constitutional validity of three state enactments aimed at abolishing Zamindaris and proprietary estates was challenged in State of Bihar vs. Kameshwar Singh. The Acts in question were from Bihar, Madhya Pradesh and Uttar Pradesh, with a common motive of eliminating intermediaries to establish direct relations between the government and land occupants. The High Court had declared one Act unconstitutional, leading to an appeal to the Supreme Court.
Supreme Court Held: The Court affirmed the statutory legitimacy of the Bihar Land Reforms Act, 1950, but found sections 4(b) and 23(f) discriminatory. The judgement emphasised that while some provisions might be harsh towards Zamindars, it did not render the Act as a whole a fraud on the Constitution.
K.C. Gajapati Narayana Deo And Other v. The State Of Orissa
“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise 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 transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression ‘Colorable Legislation’ has been applied in certain judicial pronouncements. 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 a mere presence or disguise.”
This Doctrine is also called as “Fraud on the Constitution”. The failure to comply with a Constitutional condition for the exercise of legislative power may be overt or it may be covert. When it is overt, we say the law is obviously bad for non- compliance with the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non-compliance is covert, we say that it is a ‘fraud on the Constitution’, the fraud complained of being that the Legislature pretends to act within its power while in fact it is not so doing.
Issue: The constitutional validity of the Orissa Agricultural Income Tax (Amendment) Act, 1950, was challenged as a colourable piece of legislation intended to reduce compensation to intermediaries drastically.
Supreme Court Held: The Court dismissed the appeals, stating that agricultural income falls under state jurisdiction, thus the state had the authority to amend the law. The attempt to reduce compensation was seen as separate from the legislative competence.
