CONSTITUTION INTERNAL MATERIAL

Salient features of Indian Constitution

Indian constitution, one of the utmost admired constitutions in the world was enacted after
‘ransacking’ all the known constitutions of the world at that time. This constitution that we have
enacted has stood the test of times. Though provisions were borrowed from other constitutions,
the constitution of India has several salient features that distinguish it from constitution of other
countries
Some of its salient features are discussed below:
Lengthiest written constitution

 Constitution can be classified into written constitution such as that of

America or unwritten constitution such as that UK.
 The constitution of India is a written constitution which happens to be
the lengthiest written constitution in the world.
 It is comprehensive, elaborate and a detailed document
 The factors that have contributed to this phenomenon are: geographical
factors (vastness of country and diversity), Historical factors (Influence of
GoI, 1935), Single constitution for both centre and state and dominance
of legal luminaries

Drawn from various sources

 It has borrowed most of its provisions from the constitution of various

other countries as well as from the Government of India act, 1935. Ex:
structural part from GoI, 1935, independence of judiciary from USA,
Fundamental Rights from USA etc
 Though it is borrowed, the Indian constitution-makers made sure the
borrowed features were made suitable to Indian conditions. Ex: Though
we borrowed cabinet form of governance from UK, the cabinet is not all-
supreme as in the case of UK.

Preamble of the constitution

 The Preamble consists of the ideals, objectives and basic principles of the
Constitution.
 The salient features of the Constitution have developed directly and
indirectly from these objectives which flow from the Preamble
  It asserts India to be a Sovereign Socialist Secular Democratic Republic
and a welfare state committed to secure justice, liberty and equality for
the people and for promoting fraternity, dignity the individual, and unity
and integrity of the nation.
 The Preamble is the nature of Indian state and the objectives it is
committed to secure for the people.

Democratic system

 The authority of the government rests upon the sovereignty of the

people. The people enjoy equal political rights.
 Free fair and regular elections are held for electing governments

India is a republic

 The Preamble declares India to be a Republic.

 India is not ruled by a monarch or a nominated head of state. India has an
elected head of state (President of India) who wields power for a fixed
term of 5 years.
 After every 5 years, the people of India indirectly elect their President.

Union of states

 Article I of the Constitution declares, that “India that is Bharat is a Union

of States.”

Fundamental Rights and duties:

 The Constitution of India grants and guarantees Fundamental Rights to

its citizens.
 The constitution of India confirms the basic principle that every
individual is permitted to enjoy certain basic rights and part III of the
Constitution deals with those rights which are known as fundamental
right.
 The Six FR include- Right to Equality; Right to Freedom; Right Against
Exploitation; Right to Freedom of Religion; Cultural and Educational
Rights and Right to Constitutional Remedies (Art. 32).
 The fundamental rights are justiciable and are not absolute. Reasonable
constraints can be imposed keeping in view the security-requirements of
the state.
  A new part IV (A) after the Directive Principles of State Policy was
combined in the constitution by the 42nd Amendment, 1976 for
fundamental duties.

Directive Principles of State Policy:

 A unique aspect of the Constitution is that it comprises of a chapter in

the Directive Principles of State Policy.
 These principles are in the nature of directives to the government to
implement them to maintain social and economic democracy in the
country.

Parliamentary System:

 The Constituent Assembly decided to espouse Parliamentary form of

government both for the Centre and the states.
 In Indian parliamentary system, distinction is made between nominal and
real executive head.
 The Council of Ministers is responsible before the Lok Sabha, The lower
house of union parliament. There are close relations between executive
and legislature.

Federal structure of government:

 A federal state is a state where a country is divided into smaller regions

and the government is functioning at two levels
 The Indian Constitution has envisaged a federal structure for India
considering the geographical vastness and the diversity of languages,
region, religions, castes, etc.
 Written Constitution, supremacy of the Constitution, division of powers
between Union and States, bicameral Legislature, independent Judiciary,
etc. are the features of Indian federation.
 Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a
federation with a unitary bias, or even as ‘a Unitarian federation.’

Universal adult franchise

 All men and women enjoy an equal right to vote. Each adult man and
woman above the age of 18 years has the right to vote.
 All registered voters get the opportunity to vote in elections.

Single integrated State with Single Citizenship:

  India is the single Independent and Sovereign integrated state.
 All citizens enjoy a common uniform citizenship.
 They are entitled to equal rights and freedoms, and equal protection of
the state.

Integrated Judicial system

 The Constitution provides for a single integrated judicial system common

for the Union and the states.
 The Supreme Court of India works at the apex level, High Courts at the
state level and other courts work under the High Courts.

Independent Judiciary

 It is necessary to secure the philosophical foundations of the rule of law

and democracy
 Firstly, the Constitution makers created a separate Judiciary independent
of Legislature and Executive.
 Secondly, the Constitution has ensured complete independence of
Judiciary in the matters of administration and finances.

Amending the Constitution of India:

 Amending the Constitution of India is the procedure of making

modifications to the nation’s fundamental law or supreme law.
 The procedure of amendment in the constitution is laid down in Part XX
(Article 368) of the Constitution of India.
 This procedure guarantees the sanctity of the Constitution of India and
keeps a check on uninformed power of the Parliament of India.

Judicial Review:

 The judiciary has significant position in Indian Constitution and it is also

made independent of the legislature and the executive.
 The Supreme Court of India stands at the peak of single integrated
judicial system
 It operates as defender of fundamental rights of Indian citizens and
guardian of the Constitution.

Basic Structure doctrine:

  The basic structure doctrine is an Indian judicial norm that the
Constitution of India has certain basic features that cannot be changed
or destroyed through amendments by the parliament.
 The basic features of the Constitution have not been openly defined by
the Judiciary.
 At least, 20 features have been described as “basic” or “essential” by the
Courts in numerous cases, and have been incorporated in the basic
structure.
 In Indira Gandhi v. Raj Narayan case and also in the Minerva Mills case, it
was witnessed that the claim of any particular feature of the Constitution
to be a “basic” feature would be determined by the Court in each case
that comes before it.

Secularism

 In no other country of the world so many religions co-exist as in India. In

view of such diversity the Constitution guarantees complete freedom of
religion to all.
 The citizens of our country are free to follow any religion and they enjoy
equal rights without any distinction of caste, creed, religion or sex.
 The State does not discriminate against anyone on the ground of his
religion, nor can the State compel anybody to pay taxes for the support
of any particular religion.
 Everybody is equally entitled to freedom of conscience and the right
freely to profess, practice and propagate religion.
 The Constitution regards religion as a private affair of individuals and
prohibits the State from interfering with it. The Constitution also grants
various cultural rights to minorities.

Independent bodies

 Constitution has setup various independent bodies and vested them with
powers to ensure the constitutional provisions. Ex: Election Commission,
CAG, Finance Commission
 These institutions have been provided with security of tenure, fixed
service conditions etc to ensure that they are not susceptible to the
whims of either the legislature or the executive.

Emergency provisions
  Indian constitution contains elaborate provisions to deal with those
challenges that pose a threat to the country’s security and unity (It will
be discussed in detail in upcoming chapters)

Three-tier government

 Through 73 rd  and 74 th  amendment act, we have rural and urban local

bodies as an additional constitutional tier of the government structure.
 This section fulfills the dream of Gandhi ji to see a self-functioning
villages in India

FEDERALISM
Federalism is derived from the Latin word “foedus”, which means “covenant,
pact and treaty”. Federalism is a principle which defines a system wherein
the government divides its power among the National Government and State
Government. It is dual machinery system upon which a government works.
There is a distribution of powers between the central authority and various
state authorities. 

The principle followed by these types of government is “Separation of

Power”. India works on the principle of two levels of government system in
which it divides its power between Central Government and State
Government. The constitution of India which envisages the Parliamentary
form of Government is federal in structure with unitary features. Main
branches of Federal Government are the legislative, the executive and the
judiciary.

Principles of Federalism in the

Constitution
Federalism is based on two principles:

 Separation of Power
 Check and balances
The Federal form of Government highly maintain these two principles. Power
of each machinery of government is distributed and none of the machinery
interferes in the work of others. The first judgement concerning the principle
of Separation of Power was given in the case Ram Jawaya v State of
Punjab[1], where the Supreme Court laid down that “The principle of
separation of power was not fully accepted in India”. However, the same
principle found a clear place in the Indian context from the case Indira Nehru
Gandhi vs. Raj Narain[2].

The principle of checks and balances in the federal system is required for the
proper functioning of all levels of organs of government. Each organ of
government checks the functioning of other organs so that the other organ
may not violate the principle of separation of power and no organ becomes
too powerful. Some examples of check and balances are:

1. Judiciary may exercise judicial review upon legislature and

executive.
2. The executive has the power to appoint the judges for courts.
3. Legislation may review the functioning of the judiciary. 

Function of Federalism
The basic function of federalism is to maintain separation of power among
the Central Government and State Government. Central Government make
laws from the areas listed in List I of the Seventh Schedule (e.g, Foreign
Affairs, Extradition, Foreign Jurisdiction etc) and State Government make
laws from the areas listed in List II of the Seventh Schedule ( e.g, Public
order, Public health and sanitation etc). List III is Concurrent List, it talks
about the areas where both of the governments have the autonomy to make
law.

Another function of federalism is to maintain justice by the supremacy of the

Supreme Court. Also, there is proper check and balance under this form of
government so that no branch becomes more powerful suppressing the
other. According to James Madison “If men were angels. No government
would be necessary”[3]. 

Features of Federalism
Main features of federalism include:

1. There are two tiers government i.e. Central and State.

2. There is a separation/division of power.
3. There is a written constitution.
4. Powers and functions of each level of the government are
guaranteed by the constitution.
5. The supremacy of the Constitution.
 6. Rigid constitution; i.e. Provisions of the Constitution cannot be
amended by any level of the government.
7. Independent Judiciary.
8. Bicameral legislature: Parliament of a country consists of two
houses (upper or lower house).

What is Constitutionalism?
The concept of constitutionalism is a mechanism that provides legitimacy to a democratic
government. It cannot and should not be confused with the legality of the acts of the officials in a
government setup. Constitutionalism is far more important than having a written Constitution.
With some exceptions most of the countries have Constitutions but it in no way means that they
practice constitutionalism. Some of the basic principles developed over time that embody the
concept of constitutionalism are separation of powers, judicial control and accountable
government.

 In India, constitutionalism is considered to be a natural corollary to the fundamental

governance of the country.
 The Constitution of India with the aid of various legislations has developed a detailed and
robust mechanism to put into place administrative mechanisms for the smooth
functioning of the machinery of governance.
 However, due to a variety of factors, the distance between the government and the
governed has been growing with every passing year. The rich are getting richer and the
poor have resigned to their fates, areas which were backward sixty years ago remain as
such.
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar
Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of
Government abhors absolutism – it is premised on the Rule of Law in which subjective
satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle that
requires control over the exercise of governmental power to ensure that the democratic
principles on which the government is formed shall not be destroyed. Chandrachud, CJ, in
Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you
cannot destroy its identity”.

Principles of Constitutionalism
Constitutionalism is an amalgamation of the following underlying principles:
Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e., Legislature,
Executive and the Judiciary. This not only prevents the monopolization of power, but also creates
a system of checks and balances. As this division of powers is in the Constitution itself, this
becomes an effective tool for ensuring Constitutionalism.

Responsible and Accountable Government                   

In a democratic setup, the government is elected so that it can serve the people who help elect it.
It is in this sense that the electors have a right to demand accountability and answers from their
government. Therefore, when the government fails the expectations of the electorate, the
authorization to govern is revoked by voting them out.

Popular Sovereignty

The concept of popular sovereignty lays down that the government derives its legitimacy from
the people. No corporate body, no individual may exercise any authority that does not expressly
emanate from it. Even though there is a certain sovereign entity that is empowered to govern,
ultimate sovereignty resides in the nation. The power of such a sovereign entity emanates from
the public.

Rule of Law

The presence of rule of law means that the government does not belong to men but to the laws.
Dicey lays down three essential components of Rule of Law:

 Nobody is to be punished except for a specific breach of law that is established in an

ordinary legal manner before ordinary courts of law.
 No one is above the law.
 Courts play a vital role in protecting the rights and freedoms of an individual.
Independent Judiciary
The independence of the Judiciary is the essence of any liberal democracy and the foundation of
a free society. The Judiciary is the upholder of Rule of law and if its independence is taken away,
it puts the entire rule of law in jeopardy. The Constitution also envisages the separation of the
judiciary from the Executive under Article 50.

Individual Rights

The rights of the individual shall be at the highest pedestal for constitutionalism to thrive. The
constitutional setup in India gives these rights the importance that they deserve by engraving
them in Part III of the Constitution. These individual rights have not only been protected by the
courts but have also been interpreted in a manner where their effect and implementation has
broadened.  The enforcement of these rights is ensured by the Constitutional Courts i.e.
the Supreme Court and the High Courts.

Civilian control of the military

Apart from these features, constitutionalism envisages that the control of the military should be
in the hands of a civilian government so that the military does not interfere in the democratic
decision making or attempt a military coup.

Police Accountability

Constitutionalism also envisages that police while performing its duties shall uphold the rights,
freedoms and dignity of the individuals, the same can be ensured by bringing the police under the
control of laws and courts.

Conclusion

The concept of constitutionalism has existed and thrives in all functioning democracies.
However, over the years the Governments have learned to use government apparatus for their
own benefits instead of benefitting the citizens. The government by giving backdoor entries to
corporate interests in policy-making has vitiated the policymaking process whose primary aim is
the welfare of the larger population. The very document that was adopted to ensure the rights of
individuals is being used to suppress and disenfranchise them.

The problem is that the Constitution cannot interpret itself and has to be interpreted by the men
who hold power. The institutions that were the bulwark of Constitutionalism are either crumbling
or have been effectively rendered weak and incapable. Checks and balances have been diluted to
a point where their importance is merely academic. The criminalisation and influence of money
power into the corridors of politics and governance have worsened an already volatile system.
The frustrations that are building up due to the apathy of the government in utter disregard of
constitutionalism are extremely dangerous and this slide needs to be stopped.

Case Laws where principle of ‘Constitutionalism’ is legally recognized by

Supreme Court

n I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. view taken by the Supreme
Court - The principle of constitutionalism is now a legal principle which requires control over
the exercise of Governmental power to ensure that it does not destroy the democratic
principles upon which it is based. These democratic principles include the protection of
fundamental rights. The principle of constitutionalism advocates a check and balance model
of the separation of powers, it requires a diffusion of powers, necessitating different
independent centers of decision making. The protection of fundamental constitutional
rights through the common law is main feature of common law constitutionalism.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “The constitutionalism
or constitutional system of Government abhors absolutism - it is premised on the Rule of
Law in which subjective satisfaction is substituted by objectivity provided by the provisions
of the Constitution itself.” Constitutionalism is about limits and aspirations.
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious
heritage and, therefore, you cannot destroy its identity'”

On one hand, our judiciary elicit such intellectual responses that “Faith in the judiciary is of
prime importance. Ours is a free nation. Among such people respect for law and belief in its
constitutional interpretation by courts require an extraordinary degree of tolerance and
cooperation for the value of democracy and survival of constitutionalism” said in Indra
Sawhney and Ors. vs.Union of India (UOI) and Ors.

MODULE 2 ALL DOCTRINES

Doctrine of territorial nexus
Article 245) Extent of laws made by parliament and by the legislatures of states.

1. Subject to the provisions of this constitution, Parliament may make laws for the
whole or any part of the territory of India, and the legislature of a State may make
laws for the whole or any part of the state.
2. According to clause 2 of Article 245, a law made by Parliament shall not be deemed
to be invalid on the ground that it has extra-territorial operation.

Territorial Nexus and the State Legislature

Doctrine of territorial nexus says that laws made by a state legislature are not applicable
outside the state, except when there is a sufficient nexus between the state and the object.

The Doctrine of Territorial nexus can be invoked under the following

circumstances-
 Whether a particular state has extra-territorial operation.
 If there is a territorial nexus between the subject- matter of the Act and the state
making the law.

It signifies that the object to which the law applies need not be physically located within the
territorial boundaries of the state,but must have a sufficient territorial connection with the
state.
A state may levy a tax on a person, property ,object or transaction not only when it is
situated within its territorial limits,but also when it has a sufficient and real territorial
connection with it.
State of Bihar vs Charusila Dasi
Facts-Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the protection
and preservation of properties appertaining to the Hindu religious trusts. The Act applied to
all trusts any part of which was situated in the state of Bihar.
The Respondent created a trust deed of her properties of several houses and land in Bihar
and Calcutta.The trust being situated in Bihar.

Issue-The main question for decision was whether the Act apply to trust properties which
are situated outside the state of Bihar. Can the legislature of Bihar make a law with respect
to such a trust situated in Bihar and other properties appertaining to such trust which is
situated outside Bihar?

Decision- Applying the doctrine of territorial nexus, the Supreme court held that the Act
could affect the trust property situated outside Bihar, but appertaining to a trust situated in
Bihar where the trustees functioned. The Act aims to provide for the better administration
of Hindu religious trusts in the state of Bihar.The trust is situated in Bihar the state has
legislative power over it and also over its trustees or their servants and agents who must be
in Bihar to administer the trust.

What is necessary is that the connection between the trust and the property appertaining
thereto is real and not illusory and that the religious institution and the property
appertaining thereto form one integrated whole as one cannot be dissociated from the
other.

doctrine of repugnancy
Article 254 of the Indian Constitution establishes the doctrine of repugnancy
in India. Before getting to this doctrine, it is quintessential to understand the
legislative scheme and the Centre-State relations set out by the Constitution.
` 

Article 245 empowers the Parliament to make laws for the whole or any part
of India and the State legislature to make laws for the whole or any part of
the State. It also states that a law made by the Parliament shall not be
deemed invalid due to its extraterritorial application. Further, Article
246 provides the subject-matter of laws that can be made by the Parliament
and Legislature of the States. 

 The Parliament has exclusive powers to make laws for all matters
given in the Union List or List I of the Schedule VII of the Indian
Constitution.
 The Legislature of the State has powers to make laws for such State
for all matters given in the State List or List II of Schedule VII.
  Both the Parliament and the State Legislature have powers to make
laws for all matters listed in the Concurrent List or List III of the
Seventh Schedule.
 The Parliament is empowered to make laws relating to any matter
for any part of the territory of India, not included in a State,
notwithstanding if it is enumerated in the State List.
Repugnancy means a contradiction between two laws which when applied to
the same set of facts produce different results. It is used to describe
inconsistency and incompatibility between the Central laws and State laws
when applied in the concurrent field. The situation of repugnancy arises when
two laws are so inconsistent with each other that the application of any one
of them would imply the violation of another. 

The doctrine of repugnancy, in accordance to Article 254, states that if any

part of State law is repugnant or conflicting to any part of a Central law
which the Parliament is competent to enact, or to any part of a law of the
matter of List III, then the Central law made by the Parliament shall prevail
and the law made by the State legislature shall become void, to the extent of
its repugnancy. While considering this doctrine, whether the central law is
passed before or after the State law is immaterial. Hence, this is a principle
to ascertain that when a state law becomes repugnant to the Central law. 

Judicial interpretation
One of the landmark judgments concerning this doctrine is M. Karunanidhi v.
Union of India. In this case, a constitutional bench of the Apex court
considered the question of repugnancy between a law made by the
Parliament and a law made by the State legislature. It was observed that the
following conditions should be satisfied for the application of the doctrine of
repugnancy:

1. A direct inconsistency between the Central Act and the State Act.
2. The inconsistency must be irreconcilable. 
3. The inconsistency between the provisions of the two Acts should be
of such nature as to bring the two Acts into direct collision with each
other and a situation should be reached where it is impossible to
obey the one without disobeying the other. 
The Hon’ble Court also laid down some propositions in this respect. For the
application of the doctrine of repugnancy, two enactments must contain
provisions that are so inconsistent that they cannot stand together in the
same field. Repeal by implication cannot be done unless there is a prima
facie repugnancy in the enactments. If two enactments exist in the same
field and there is a possibility for both of them to operate without colluding
with the other, then this doctrine is not attracted. When there is an absence
of inconsistency but enactment in the same field creates distinct offences,
the question of repugnancy does not arise. 
Conclusion
The effect of the application of this doctrine will make the State law void to
the extent of repugnancy. As long as the Central law occupies the field, the
State law is eclipsed. If, in case, the Central law is repealed, then the State
law shall revive. The doctrine of severability also comes into application since
if a State law is repugnant for a matter in the concurrent list, then only the
repugnant part will be held void and the rest shall function normally, thereby,
giving rise to severability. Article 254 proves that the Indian Constitution is
both unitary and federal. This doctrine is quintessential for the Centre-State
relations in the country.

DOCTRINE OF PITH AND SUBSTANCE

the Doctrine of Pith and Substance states that if the substance of legislation
falls within a legislature’s lawful power, the legislation does not become
unconstitutional just because it impacts an issue beyond its area of
authority. “True nature and character” is what the phrase “pith and
substance” signifies. The infringement of the constitutional delimitation of
legislative powers in a Federal State is the subject of this concept. The Court
uses it to determine whether the claimed intrusion is just incidental or
significant. Thus, the ‘pith and substance’ concept holds that the challenged
statute is fundamentally within the legislative competence of the legislature
that enacted it but only incidentally encroaches on the legislative field of
another legislature. The present article discusses this doctrine majorly
highlighting the same on how the Indian Constitution has perceived this
doctrine. 

Features of the doctrine of pith and

substance
1. The philosophy behind the doctrine emphasises that it is the primary
subject matter that must be contested, not its unintended
consequences in another discipline. Pith refers to a thing’s ‘essence’
or ‘real nature,’ whereas substance refers to a thing’s most
significant or fundamental portion.’
2. The adoption of this doctrine is necessary because otherwise every
law would be considered unconstitutional since it encroaches on the
subject matter of another realm.
3. The actual character of law is defined by pith and substance. The
true subject matter is being questioned in this regard and not its
unintended consequences in another discipline. The idea has also
 been used in India to allow some flexibility in an otherwise strict
electricity distribution structure.
4. To identify which list a piece of legislation belongs to, the doctrine
looks at its genuine nature and substance.
5. It considers whether the state has the authority to enact legislation
that affects a subject from another list or not.

Article 246 of the Indian Constitution : all you

need to know
The distribution of authority between the Union and the States is addressed
in the Constitution’s Seventh Schedule, which is enshrined under Article 246
of the Indian Constitution. Article 246 of the Constitution defines the Union’s
and states’ powers by categorising them into three lists, namely, Union List,
State List, and Concurrent List. The Indian Constitution establishes the
doctrine of separation of powers between the national and state
governments. The three lists have been placed hereunder: 

1. Union List: This is the List in which the Centre has sole authority to
enact legislation. The Union List essentially covers military, foreign
affairs, railways, and banking, among other areas where Parliament
can enact legislation.
2. State List: This is the List in which states have sole authority to
enact legislation. Public order, police, public health, and sanitation,
as well as hospitals and dispensaries, betting, and gambling, are
some of the subject matters covered under the same.
3. Concurrent List: The List in which both the Centre and the states
can pass legislation is the Concurrent List. The central law takes
precedence over state law in circumstances of repugnancy. It covers
subject matters such as education, population management, family
planning, criminal law, animal cruelty prevention, wildlife and animal
preservation, forests, and several others. 
The Constitution’s Seventh Schedule has been amended several times since
1950. The Union List and the Concurrent List have grown in size, while the
State List has converged over the years. In 1976, the 42nd Amendment
Act rebuilt the Seventh Schedule, guaranteeing that State List subject
matters such as education, forest, wildlife, and bird preservation and
administration of justice. Whereas, weights and measures were transferred
to the Concurrent List.
Interpretation of the doctrine of pith and substance
In Kartar Singh v. the State of Punjab (1961), the Supreme Court’s
Constitutional Bench explained how the doctrine of pith and substance should
be applied. It was discovered that when the idea of pith and substance is
applied, legislation relating to a topic in one of the lists may also be
connected, if indirectly, to a subject in another list. The essence and
substance of the legislation must be determined in such a case. If a
comprehensive examination of the law reveals that it is on a topic listed in a
list pertaining to the legislature, the act in its whole is to be deemed legal,
regardless of any accidental encroachments that may exist.

Conclusion  The doctrine of pith and substance has been relevant in a

number of cases in which the Centre and the States have fought for
legislative primacy. Because the Centre has more clout in India than the
states, several of the subjects on the Union List are extremely important.
States are only obligated to legislate on things that affect them. Even yet,
overlaps may exist merely because one legislation is linked to another, either
directly or indirectly. It is therefore important that the courts carry out their
responsibilities without error.

DOCTRINE OF Colourable Legislation

Federalism is one of the fundamental elements of Indian constitution. By temperance of this
force the constitution visualizes an outline of governmental powers and functions between
different constituent units of the country. Basically in a federation there are two degrees of
govt. the presence or authority of each level of the Government has been ensured by the
constitution. Indian framework is particularly affected to the colonial ruling arrangement of
the English for some reasons. One of the impacts of this should be the strategy which made
the three main pillars of the democracy i.e. executive, judiciary and the legislature.

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 maxim doctrine of colourable legislation means what cannot be done directly cannot
also be done indirectly. This doctrine is applied when legislature tries to accomplish
something in a backhanded way when it can't do it straightforwardly. In this manner, it
alludes to the ability of the legislature to establish a specific law. In the event that the
reproved enactment falls within the capacity of the legislature, the question of acting
something indirectly which can't be done directly doesn't emerge.
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 law making body violates its given power and enact after something in
an indirect way which it can't do in a direct way.

Landmark Judgements

 State of Bihar v. Kameshwar Singh [13]

This is the only landmark judgment where the statute has been proclaimed clearly
invalid on the ground of being colorable legislation. In this case, the petitioner,
tested and challenged the legitimacy of the Bihar Land Reforms Act 1950[14] on the
premise that the demonstration was apparently planned to set out the guideline of
pay however indeed, it didn't set out any such rule. This was claimed as the implied
endeavor to deny the petition of his right to remuneration. The court additionally
maintained the unconstitutionality of the Act.
 
 State of M.P. vs. Mahalaxmi fabric mills ltd.[15]
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.
 Conclusion
The Constitution disseminates administrative forces between the Parliament and
State Legislatures, and each needs to act inside its circle. In regard of specific
legislation, the inquiry might emerge whether the governing body has violated the
limits imposed on it by the constitution. Such offense might be patent, show or
direct, however it might likewise be masked, indirect or covert. It is to this last class
of cases that the expression Colourable legislation.

The Doctrine of Colourable legislation comes to rescue to deal with covert, disguised
and indirect violation scenarios. The basic thought is that although obviously, a
lawmaking body in passing a resolution suspected to act inside the restrictions of its
forces, yet in substance and as a general rule it violated these forces, the offense
being hidden by what shows up, on legitimate assessment, to be simple affectation
or mask. In case that is thus, the legislature being referred to is invalid.

This doctrine acts as a fundamental tool of the judiciary to keep an eye on the
powers of legislative granted to the Union & State governments and also decide the
validity of the legislation in question or doubt.