Doctrine of Colourable Legislation – Article 246

Doctrine of Colourable Legislation – Article 246

Introduction

The Supreme Court of India for the purpose of interpretation of several constitutional provisions has formulated and applied a tool just like any other constitutional tool named Doctrine of Colourable Legislation. With respect to interpreting the provisions relating to the competency of the legislature, this principle becomes a guiding light of immense importance.

This Doctrine of Colourable Legislation is erected upon the foundation stone of the Doctrine of Separations of Powers. The Doctrine of Separation of Power orders for the balancing of powers by separation amongst the 3 components of the State which are Legislative, Executive and Judiciary. Making of laws is the very basic function of the Legislature. The Doctrine of Colourable Legislation becomes attracted in cases where the Legislature attempts to shift the balancing of power entirely towards itself and the doctrine steps in to take care of Legislative Accountability.

The literal meaning of Colourable Legislation is that under the ‘colour’ or ‘guise’ of the power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

Doctrine of Colourable Legislation in the Indian context

  • Limiting the Legislature’s law-making power is the significance of the Doctrine of Colourable Legislation in the Indian scenario. It comes to know while the legislature purporting to act within its power but in reality, it has transgressed those powers.
  • In any case where the legislation intends to do any act in an indirect manner where it is impossible to do it in a direct manner, the application of Doctrine of Colourable Legislation
    comes into place.
  • Article 246 provides for the legislative powers of both the State Legislatures and the Parliament and the same has been distributed in the 3 lists ( List I, II and III) which is mentioned in the Seventh Schedule of the Constitution of India.
  • The Parliament have the power to make laws with respect to any of the matters mentioned in List II and both the Parliament and State Legislatures are empowered to make laws with respect to any of the matters mentioned in List III and the residuary power of legislation is vested in the Parliament by virtue of Article 248 and List I.
  • The main issue to be considered for the purpose of making any law or determining the validity of the law is how legislative powers should be shared between the Centre and State or how does the determination of relationships between the Centre and State take place i.e. legislative competency. The crucial point to be noted here is that any legislature which possesses restrictive power cannot at any cost overstep the area of competency and if it does, the same is termed as “fraud of the Constitution”.
  • Basically, the Doctrine is completely based on the maxim “what cannot be done directly cannot be done at all.” Hence, the Doctrine of Colourable Legislation
    deals only with incompetency and does not talk about ill or evil motive or bad faith. A thing is colourable which in appearance only and not only in reality, has what it purported to be.
  • The Supreme Court of India in different judicial pronouncement has laid down certa in tests in order to determine the true nature of the legislation impeached as colourable:-
    • The Court must look into 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 the impugned law, the court will examine two things i.e. effect of legislature and the object and purpose of the Act.
    • 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 in particular does not involve any sort of questions of any mala fide or bona fide intention on the part of the legislature. It basically means that the motive with which the act was passed does not matter at all if the legislature has competency to enact the particular law in question.
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Limitations on the Application of the Doctrine of Colourable Legislation

  • In cases where the limitations imposed by the Constitution does not hamper the powers of the Legislature, then the Doctrine of Colourable Legislation does not become applicable at all.
  • The Doctrine of Colourable Legislation also does not apply to subordinate legislation.
  • The Doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of legislature. The whole doctrine revolves itself into the, question of competency of a particular legislature to enact a particular law.
  • Another point to be derived from the above is that the legislature does not act per se on extraneous considerations at all. The presumption is that constitutionality always exists in favor of the state. Ram Krishna Dalmia v. Shri Justice SR Tendolkar and Ors. was the landmark case where the constitutional bench pronounced the principle of presumption of proportionality.
  • The legislature has all the auxiliary and subsidiary power to make a particular law very effective in addition to the making a law with respect to the particular subject.
  • The Doctrine of Colourable Legislation becomes applicable to only those cases where the transgression is indirect, disguised or covert and does not apply to those cases where the transgression is manifest, patent or direct.

Landmark Judgements relating to Doctrine of Colourable Legislation

1. State of Bihar v. Kameshwar Singh

This is the only case where the declaration that a law was invalid on the grounds of colourable legislation was made. The Bihar Land Reforms Act, 1950 was constituted for the purpose of laying down a clear-cut procedure for the determination of compensation but it was declared void because the act did not lay down any such principle in reality, hence depriving the petitioner of his compensation.

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2. KC Gajapati Narayan Dev v. State of Orissa

The scope and meaning of the Doctrine of Colourable Legislation was explained by the Supreme Court in this case. The Supreme Court stated that “ If the Constitution of a State distributed the legislative powers amongst different bodies, which have to act within their 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 power.

Such transgressions may be patent, manifest or direct, but it may also be disguised, covert and indirect and is to this latter class of cases that the expression ‘Colourable Legislation’ applied in certain judicial pronouncement.”

References

1. Ram Krishna Dalmia v. Shri Justice SR Tendolkar and Ors., 1958 AIR 538
2. State of Bihar v. Kameshwar Singh, 1952 1 SCR 889
3. KC Gajapati Narayana Deo v. State of Orissa, AIR 1953 Ori 185

Author: Haritha Malepati,
3rd year BBA LLB, Symbiosis Law School, Hyderabad

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