An Overview Of Doctrine Of Colourable Legislation

Meaning, Applicability And Scope Of The Doctrine

The Doctrine of Colourable Legislation is derived from a latin maxim "Quando aliquid
prohibetur ex directo, prohibetur et per obliquum" that says:
What cannot be done directly, should also not be done indirectly.

This doctrine has been used in the cases to decide questions of capacity/ competency to
enact a law when a lawmaking body violates its given power and enact after something
in an indirect way which it can't do in a direct way.

In Indian a direct partition of power succeeds by which a balance has been kept up with
between the various organs of the government among these the law making power
basically vests on the lawmaking body.

The doctrine of colourability is the concept that when a legislature aims to do

something that it is unable to do or is beyond its capability or authority, within the
limitations of its government’s constitution, it colours the law with a concealed
motive or purpose, allowing it to accomplish its original hidden goal. Legislation is
termed as colourable when a legislature, having insufficient or absolutely no
authority or legislative capability, enacts legislation that is so disguising that it
misleadingly seems to drop within its legislative capability. It is clear that the
purpose lies in the element that the legislature is unable to legislate directly; it
cannot traverse outside its capability to legislate it in an indirect manner. This
principle is called the Doctrine of Colourable Legislation. Through this article, the
author seeks to delve into the scope and background of colourable legislation as
well as its limitations through various case laws. The author has also analyzed
several landmark decisions surrounding colourable legislation to understand the
concept in its totality.

While deliberating on legislative competence and the scope of the courts to check
colourable legislation in the constituent assembly of India, Alladi Krishnaswami
Ayyar said; “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.”

Historical Background

The development of the doctrine of colorable legislation traces all the way back to the
british time frame when the self-government had expanded its existence in significant
pieces of the British Empire and the Commonwealth. The subjects of legislature then, at
that point were distributed between the Central and Provincial units and to keep a
check of the powers conceded to these units, any establishment was tried against the
precept of colourable legislature. From that point, the doctrine discovered its approach
to India that utilized the Canadian and Australian legitimate points of reference to take
on the standard of this doctrine.[4]

In India, the power was given to the Judiciary to apply this doctrine while at the same
time settling on the legislative ability of the Union and state governing bodies. The
statement of Jus Alladi Krishnaswami Ayyar on the precept of colourable legislature
given in the Consituent gathering is as per the following:
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

Indeed, even Jawaharlal Nehru, while maintaining administrative incomparability,

confined its absolute power and said: Parliament fixes either the compensation itself or
the principles governing that compensation and they should not be challenged except
for one reason, where in fact there has been a gross abuse of the law, where in fact
there has been a fraud on the Constitution.

Limitations of the Doctrine

A principle was established in the case

Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & Ors., stating:

“That there is always an assumption in favor of the constitutionality of an enactment

and the onus is upon him who assaults it to show that there has been a clear
contravention of the constitutional doctrines.” which shows that the particularly
conferred authority to the legislature defines its capability and with this arises its
authority to legislate even on supplementary and additional matters. Therefore, for
the application of this principle, the contravention by the legislature of its
constitutional authority should be ancillary, hidden, or masked and not too direct,
obvious, or apparent.

So, clearly, not all acts of the legislation shall be subject to the applicability of the
doctrine of colourable legislation, there are limitations to its applicability as follows:

1. It is inapplicable in cases where the authority of the legislature is not fettered

by the constitutional provisions.
2. It does not apply to cases of subordinate legislation.

3. The intention of the legislature while determining an enactment is not relevant

to determining its validity.
4. There shall always be a presumption of constitutional validity in favor of the
enactment.

Landmark Judgements

• State of M.P. vs. Mahalaxmi fabric mills ltd.

In this case the issue was raised that increasing the royalty rates from 400% to 2000% by
the Parliament in the Cess and other Taxes on Minerals Validating Ordinance, 1992 was a
colorable legislation. As the central government has the power to increase the rates of
royalty in 1982, many coals producing states imposed & received cess on coal
development, which was held to be invalid and far from the legislative competence of the
state legislation. In this case, the Supreme case upheld the validity of the notification and
held that it could not be said to be a colorable legislation as the minerals belonged to the
states and thus should be re-compensated for the loss they have faced.

• Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd.

The issue of the legitimacy of impugned legislation was raised, to which the Supreme
Court recognized the amendment brought to the Act, the legislature body has
endeavored to overrule and set aside the decision of the court that is denied under
Constitutional plan. Art. 141 of the Constitution that evidently sets out the power of the
Supreme Court for all its order to be binding on all Indian courts plainly infers that the
legislature in no limit can say that the affirmation made by the court was invalid,
uncertain, or incorrect either as a point of reference or between both the parties

Conclusion
• The Constitution of India has brought about well-founded dissemination of
powers between Parliament and State Legislatures and every one of them is
obligated to act within its confined sphere. The question of legislature
competency often ascends when they seek to transgress the limits enforced
by the Constitution but these contraventions are sometimes direct or patent.
The Doctrine acts as a fundamental device of the Judiciary to monitor the
 legislative authorities endowed on the Union and State Governments and
determine the validity of the legislation in question

Reference
Legalserviceindia.com
Mondaq.com
Iblogpleader.com

Article by LAXMI S. SANKESHWARI