Doctrine of Colourable Legislation

Doctrine of Colourable Legislation: Legislation is considered colourable when a legislature having no power or legislative competence enacts legislation that is so camouflaging that it appears to fall within its legislative competence. The objective lies in the fact that what the legislature can’t legislate directly, it cannot go beyond its competency to legislate it indirectly. This principle is known as the doctrine of colourable legislation.

I. Meaning, Scope and Applicability of the Doctrine

The Doctrine of Colourable Legislation is based on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which says that what cannot be done directly should also not be done indirectly. The doctrine is used in the cases to determine questions of competency to enact a law when a legislature oversteps its conferred power and legislates upon something indirectly which it can’t do in a direct manner.

On the face of the legislation, the subject matter of the law seems to fall within the power of the legislature, but the related effect or purpose of the matter actually falls beyond the domain and authority of the legislature. So in a manner, the doctrine limits the overstretching or misuse of the granted constitutional power in a covert manner. This is why the doctrine is also famously known as “fraud on the Constitution”.

It is to note that the doctrine is not applicable when the impugned legislation does fall under the legislative competence of the legislature.

The meaning and scope of the doctrine are well explained by the Supreme Court in the case of K.C Gajapati Narayan Deo v. State of Orissa. The court stated:

“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 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.” [1]

The court further opined:

“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.” [2]

The essence of the expression is that only the substance of an enactment is material and not merely its form. In case the subject matter of the enactment is not within the legislative domain of the legislature, then the law made in the garb of that form can’t spare it from condemnation.

The legislature can’t overstep the constitutional prohibitions by applying an indirect manner to do so. Otherwise, it stands in violation of the Constitutional powers granted to them.

II. Historical Background of the Doctrine

The evolution of the doctrine of colourable legislation dates back to the colonial period when self-government had increased its presence in major parts of the British Empire and the Commonwealth. The legislative subjects then were segregated between the Central and Provincial units, and to keep a check on the powers granted to these units, any enactment was tested against the doctrine of colourable legislation. From there, the doctrine found its way to India, which used the Canadian and Australian legal precedents to adopt the principle of this doctrine.

In India, the power was given to the judiciary to apply this doctrine while deciding on the legislative competence of the Union and state legislatures. The expression of Jus Alladi Krishnaswami Ayyar on the doctrine of colourable legislation given in the Constituent Assembly debate is as follows:

“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]

III. Limitations of the Doctrine

There are certain limitations to the applicability of this Doctrine. They are listed below:

1. It is not applicable in cases where the power of the legislature is not limited by the constitutional provisions.
2. It doesn’t extend to cases of subordinate legislation.
3. The intention of the legislature while passing an enactment is irrelevant to deciding its validity.
4. There shall always be a presumption of constitutional validity in favour of the enactment.

This principle was laid down in the case of Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors., stating:

“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.” [4]

1. The expressly conferred power to the legislature defines its competency and with this comes its power to legislate even on incidental and ancillary matters.
2. For the application of this doctrine, the transgression by the legislature of its constitutional power should be indirect, covert, or disguised and not too direct, patent or manifest.

IV. Landmark Judgments

• State of Bihar v. Kameshwar Singh [5]

This is the only landmark case where the stature has been declared clearly invalid on the ground of being colourable legislation. The petitioner, in this case, challenged the validity of the Bihar Land Reforms Act 1950 on the basis that the act was supposedly intended to lay down the principle of compensation but in fact, it didn’t lay down any such principle. This was alleged as an implicit attempt to deprive the petition of his right to compensation. The court also upheld the unconstitutionality of the Act.

• Shri Prithvi Cotton Mills v. Broach Borough Municipality

The Supreme Court explained the evolving relationship between the doctrine of colourable legislation and overriding of court judgments. When the legislature overrides the judicial verdicts with legislation, although the enactment is not of a judicial nature, it may attract the applicability of the doctrine. But now with evolving concepts and powers, exceptions can be seen by not rendering such legislation invalid. In this regard, the Supreme Court stated that:

“Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court’s decision met always binds unless the condition on which it is based is so fundamentally altered that the decision could.” [6]

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

In this case, the Madras Govt. took action to reassess some of the theatre owners who were apprehended to have escaped the entertainment tax. When the matter reached the High Court, it was decided that the concerned legislation Madras Entertainment Tax Act, 1939 did not authorize the government to conduct reassessment, and the Act was struck down. The state govt. filed an appeal before the Supreme Court, to which the court opined that the effect of this provision was to overrule the HC decision, and it was not meant to change the law retrospectively.

• Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. [8]

In this case, the issue of the validity of impugned legislation was raised, to which the SC observed that with the amendment brought to the Act, the legislature has attempted to set aside or overrule the decision of the court that is prohibited under the Constitutional scheme. Article 141 of the Constitution clearly lays down the power of the SC for all its orders to be binding on all Indian courts clearly implies that the legislature in no capacity can say that the declaration made by the court was invalid, imprecise, or erroneous either as a precedent or between the parties.

The above cases suggest that the expressly conferred powers to the legislature to legislate on any issue are inclusive of incidental and ancillary powers in respect of the proper enforcement of that law. Therefore, there is also a need for the doctrine of colourable legislation to determine legislative accountability with regard to necessary modifications in the legislative functions.

V. Conclusion

The Constitution of India has made a rigid distribution of powers between Parliament and State Legislatures and each one of them is bound to act within its circumscribed sphere. The question of legislature competency often arises when they seek to transgress the limits imposed by the Constitution but these transgressions are not always direct or patent. The Doctrine of Colourable legislation comes to the rescue to deal with indirect, covert, or disguised violation scenarios. The Doctrine acts as a fundamental tool of the Judiciary to keep a check on the legislative powers granted to the Union and State Governments and decide the validity of the legislation in question.

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References

[1] 1953 AIR 375.

[2] Ibid.

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

[4] 1958 AIR 538.

[5] AIR 1952 SC 252.

[6] 1970 1 SCR 388.

[7] AIR 1971 SC 231.

[8] 1971 AIR 57.

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