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DOCTRINE OF COLOURABLE LEGISLATION

Introduction

As with every other constitutional law, the Doctrine of Colourable Legislation is an instrument developed and introduced by the Supreme Court of India to interpret various constitutional provisions. It is a guiding principle of immense utility in the construction of legislative powers-related provisions.

Let’s first understand the genesis of Colourable Legislation Doctrine before we know what this doctrine is, and how it is being applied in India.

The Theory of Colourable Law is founded on the founding stones of the Power Separation Theory. Power separation requires a balance of power between the various components of the State, i.e. the Legislature, the Executive and the Judiciary, to be established. The legislature’s primary role is to draft legislation. Whenever the Legislature tries to shift this balance of power towards itself, then it attracts the Doctrine of Colourable Legislation to take care of the legislative responsibilities.

The basic sense of Colourable Legislation is that, under the ‘colour’ or ‘guise’ of the power provided for a particular purpose, the legislature cannot seek to accomplish any other aim, otherwise it is not eligible to legislate on.

Colourable Legislation in India

In India ‘Doctrine of Colourable Legislation’ implies only a limitation of the law-making power of the legislature. While the legislature purports to act within its authority, it comes to know, but it has actually transgressed those powers. The Doctrine of Colourable Legislation is true as law tries to implicitly do something it cannot do directly.

In India, in the seventh schedule of the Indian Constitution, legislative powers of parliament and state legislatures are conferred by Article 246 and distributed by Lists I, II, and III. Parliament has the power to make laws on any of the List II issues, and both the parliament and the state legislatures have the power to make laws on any of the List III issues, and the parliament has the remaining powers under Article 248 and List I.

It’s a matter of how to divide legislative authority between the center and the state, whether it’s based exclusively on the relationships between the two, to create some law or the legitimacy of that rule. The key argument is that the punitive-authorized government cannot dominate the area of competency. It is called “constitutional fraud”.

The whole Philosophy is founded on the principle that “you can’t explicitly do something you can’t do.” Therefore, “Colourable law” is related to ignorance and not tainted by bad faith or malicious intent. A thing is colourful that is what it purports to be in appearance only, and not just in reality.

The Supreme Court of India has laid down some criteria in various court decisions to determine the true essence of the law being questioned as colourful: –

  • The court must consider the substance of the impugned law, as distinct from its form or the lawmaker’s label. For the purpose of determining the substance of the impugned rule, the court may examine two things, i.e. the effect of the legislation, and the meaning and consequence of the act.
  • The court must consider the substance of the impugned law, as distinct from its form or the lawmaker’s label. For the purpose of determining the substance of the impugned rule, the court may examine two things, i.e. the effect of the legislation, and the meaning and consequence of the act.
  • The Doctrine of Colourable Legislation has nothing to do with the legislative motive, it is essentially a matter of vires or the power of the legislature to enact the law at issue.
  • The law does not include any doubt regarding the nature of bona fides or mala fides on the part of the legislature. If the legislature is properly competent to enact a specific law then for whatever reason it is unnecessary to act.

Limitations on the Application of Doctrine of Colourable Legislation

  • The Doctrine has no framework in which any constitutional limitation does not encroach upon the powers of a legislature. Nor does the Doctrine relate to Subordinate Law.
  • The Doctrine requires no question about bona fides or mala fides on the part of the legislature. The whole doctrine revolves around the question of the competence of a specific legislature to enact a particular law.
  • A rational corollary to the argument above is that the legislature is not acting on Extraneous Considerations[1]. There is a presumption of constitutionality even in terms of the Statute. The Constitutional Bench has succinctly set out the principle of constitutionality presumption in Ram Krishna Dalima v. S.R. Tendolkar[2].

“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.”

There is also a well-known rule of interpretation which explains why the courts depend heavily on a construction which reduces the statute to futility. The Latin Maxim’s “construction ut res magis valeat quam pereat” means a law or any enacting clause in it must be so constructed that it is effective and operational. The courts prefer building which keeps the statute within the jurisdiction of the legislature.

  • When a legislature has the power to make law on a particular matter, it also has all the power to make that law effective.
  • The transgression of constitutional power by the legislature may be proprietary, manifest, or direct, but may also be veiled, hidden, and indirect, and only this latter class of cases is protected by the term “colourable legislation.”

Case Laws Related to Doctrine of Colourable Legislation

In K.C. Gajapati Narayana Deo and Ors. v. The State of Orrisa[3], the Supreme Court spelled out the importance and nature of the doctrine of imaginative law. In this case, the Supreme Court stated that “if the Constitution of a State distributes legislative powers among the various bodies which have to function within its domain, marked by specific legislative entries, or if the legislative authority has limitations in the form of fundamental rights, The question arises as to whether or not the legislature has, in a specific situation, transgressed the boundaries of its constitutional authority with respect to the subject-matter of the law or the process of its enactment. Such transgressions may be patent, visible, or direct, but may also be veiled, hidden, and indirect, and in some judicial pronouncements the term “Colourable Legislation” referred to the latter class of cases.”

In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga[4], is the only case where a statute has been found unconstitutional on Colourable Legislation grounds. The Bihar Land Reforms Act of 1950 was held null and void on the court in this case, though apparently, it claimed to lay down the compensation principle but in reality, it did not lay down any such principle and so indirectly sought to deprive the applicant of any compensation whatsoever.

By: Harshul Daiya

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