The doctrine of colourable legislation is the concept when a legislature vision to do something but is not able to do because it is beyond its capability or authority, within the limitations of its government’s constitution, it colours the law with a secrete motive or purpose, allowing it to achieve its original hidden objective.
Legislation is termed as colourable when a legislature, having insufficient or absolutely having no authority or legislative capability, approves legislation that is so personating that it ambiguously seems to drop within its legislative capability. The colourable legislation also deals with such questions wherein one law is supposedly passed under the garb of another. Colourable legislation comes from a legal maxim- “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means which is prohibited directly is also prohibited indirectly. It means when a legislature does not have the power to make laws on a particular subject directly, it cannot make laws on it indirectly. Colourable legislation is one of the doctrines under the Indian Constitution. It basically means coloured legislation which is not its true colour. So, whenever the Union or state trespasses on their respective legislative competence and makes such laws, colourable legislation comes into the picture to determine legislative accountability of that law.
The Supreme Court in the case of K.C Gajapati Narayan Deo vs. State of Orissa has well explained the meaning and scope of the doctrine as the court stated that;
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 the 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 they may also be disguised, covert or indirect, and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.
Further, in this case, the Supreme Court went to opine that 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.
If we say in other words, it is the substance of the demonstration that is material and not simply the structure or visible presentation and if the topic in substance is above the powers of the legislature to enact upon the structure/ form where the law is dressed can’t save it from judgment. The legislature can’t abuse the constitutional preclusions by utilizing indirect strategies.
Furthermore, in R.S Joshi v. Ajit Mills, the Supreme court observed and stated that In the jurisprudence of power, the colourable exercise of or fraud on legislative power or, more frightfully, fraud on the constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is struck on it, and then it is colourable legislation.
The Supreme court of India in different judicial pronouncements has laid down 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 bonafide or malafide 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 is 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 the 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 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 colourable legislation indicates that while making the law the legislature infringes 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 a 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.”
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