Doctrine of Colourable legislation

shikha singh
7 min readJul 7, 2021

--

THE DOCTRINE OF COLOURABLE LEGISLATION

Federalism is one of the basic features of Indian constitution. By virtue of this power the constitution envisages a demarcation of governmental functions and powers between various constituent units of the country. Generally, in a federation there are two levels of govt. the existence or authority of each level of the Government has been guaranteed by the constitution. Indian system is very much influenced to the colonial ruling system of the English for many reasons. One of the influences of this must be the policy which created the three pillars of the democracy i.e., executive, legislature and the judiciary. In Indian constitutional pattern a direct separation of power prevails by which a balance has been maintained between the different organs of the govt. among these the law-making power primarily vests on the legislature.

The doctrine of colourable legislation refers to the question of competency of the legislature while enacting a provision of law. My project has two different parts, the part one of my work deals with the doctrine of colourable legislation and part two deals with legislative accountability. It is worthy to be mention that my whole research work is doctrinal in nature.

Legislature of a federal state is accountable to its people and the legislation has different power which is vested upon it by the constitution. So the question is what would be the extent and context of legislative accountability with reference to the power conferred upon it in the light of doctrine of colourable legislation in Indian scenario.

To get a satisfactory answer of this above question first we have to deal with the doctrine of colourable legislation. If a legislature is prohibited from doing something, it may not permitted to do this under the guide or pretence of doing something while acting within its lawful jurisdiction and this prohibition is an implied result of the maxim “what cannot be done directly, cannot be done indirectly” and This doctrine is based on the maxim ‘what cannot be done directly, cannot also be done indirectly. It is applicable when the legislature intends to do something indirectly which cannot be done directly. . Later on I deal with the legislative accountability, which means excessive secrecy or open abuse of the public trust vested upon legislative assembly is not tolerable. They are bound to do justice towards the public aspirations which led them to their seats. These two parts are discussed in a broad manner respectively with the help of constitutional provisions and judicial decisions.

The doctrine of colourable legislation is based on the maxim that “what cannot be done directly cannot also be done indirectly”. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it cannot do it directly. Thus, it refers to the competency of the legislature to enact a particular law. If the impugned legislation falls within the competence of the legislature, the question of doing something indirectly which cannot be done directly does not arise.

COLOURABLE LEGISLATION IN INDIA:

In India ‘the doctrine of colorable legislation’ signifies only a limitation of the law making power of the legislature. It comes into picture while the legislature purporting to act within its power but in reality it has transgressed those powers. So the doctrine becomes applicable whenever any legislation seeks to do in an indirect manner what it cannot do directly. If the impugned legislation falls within the competence of legislature, the question of doing something indirectly which cannot be done directly does not arise.

In India legislative powers of Parliament and State Legislatures are conferred by Art. 246 and distributed by Lists I, II and III in the seventh schedule of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters in List II. Parliament and State Legislatures have both powers to make laws with respect matters in List III which is also known as concurrent list. Residuary power of legislation is vested in Parliament by virtue of Art. 248 and entry 97 in list I. the power of State Legislatures to make laws is subject to the power of Parliament to make laws with respect to matters in List I and III. While examining the legislative competence of Parliament to make a law all that is required to be seen is whether the subject matter falls in List II which Parliament cannot enter for in view of the residuary power vesting in Parliament other matters are not outside the legislative competence of Parliament. Legislative competency is an issue that relates to how legislative power must be shared between the centre and states. It focuses only on the relation between the two.

The question whether the Legislature has kept itself within the jurisdic­tion assigned to it or has encroached upon a forbidden field is determined by finding out the true nature and character or pith and substance of the legislation . The main point is that the legislature having restrictive power can not step over the field of competency. It is termed as the “fraud on the constitution”

The Supreme Court in the case of K.C gajapti vs state of Orissa[1] while explaining the doctrine held that “if the constitution of a state distributes the legislative 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 in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. Such transgression may be patent, manifest and direct, but may also be distinguished, covered and indirect and it is the latter class of cases that the expression ‘colourable legislation’ has been applied in certain judicial pronouncements.”

The Supreme court of India in different judicial pronouncements has laid down the certain tests in order to determine the true nature of the legislation impeached as colourable:-

1. The court must look to the substance of the impugned law, as distinguished from its form or the label which the legislature has given it.

For the purpose of determining the substance of an enactment, the court will examine two things: a) effect of the legislature and the b) object and the purpose of the act.

2. The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is in the essence a question of vires or power of the legislature to enact the law in question.

The doctrine does not involve any question of bonafides or malafides intention on the part of the legislature. If the legislature is competent enough to enact a particular law, then whatever motive which impelled it to act are irrelevant. On the other hand, it was observed by the Apex court that “the motive of the legislature in passing a statute is beyond the scrutiny of the courts” so the court has no power to scrutinize the policy which led to an enactment of a law falling within the ambit of the legislature concerned.

There is hardly any instance where a law has been declared by the court as invalid on the ground of competency of the legislature. The only instance is in the case where a state law dealing with the abolition of landlord system, provided for payment of compensation on the basis of income accruing to the landlord by way of rent. Arrears of rent due to the landlord prior to the date of acquisition were to vest in the state and half of these arrears were to be given to the landlord as compensation. The provision was held to be a piece of colourable legislation and hence void on the basis of the following grounds:-

· That it was not within the competence of Bihar state legislature to enact the impugned act.

· That the acquisitions of the estates not being for public purpose, the act was unconstitutional

· That the legislative power in various sections of the act has been abdicted in favour of the executive and such abdication of power was unconstitutional.

· That the act was a fraud on the constitution and that certain parts of the act were unenforceable on account of vagueness and indefiniteness.

There is always a presumption that the legislature that the legislature does not exceed its jurisdiction (ut res magis, valet quam parret) and the burden of establishing that an act is not within the competence of the legislature or that it has transgressed other constitutional mandates as is always on the person who challenges its constitutionality.

So the ultimate analysis is that colorable legislation indicates that while making the law the legislature transgressed the limits of its power. But the question may be raised that whether or not parliament can do something indirectly, which it cannot do directly, may depend upon why it cannot do directly. There are so many examples in law as well as life where something can be done indirectly, although not directly. So the true principle of colourable legislation is “it is not permissible to do indirectly, what is prohibited directly.”

for more updated Notes and Material visit

IAS NEXT

www.iasnext.com

--

--

shikha singh
shikha singh

No responses yet