Doctrine of Colorable legislation

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.

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.

The subject matter of the law appears to fall within the power of the council on the face of the
legislature however the connected impact or motive behind the matter really falls past the authority and
domain of the assembly. So in a way, the doctrine limits the overstretching or abuse of the allowed
established force in an undercover way. This is the reason the tenet is likewise broadly known as "fraud
on the Constitution".[1]

Note: The doctrine of colourable legislature is not applicable when assail legislation does fall under the
legislation capacity of the legislature.

The Supreme Court in the case of K.C Gajapati Narayan Deo vs. State of Orissa[2] has well explained the
meaning and scope of the doctrine as the court stated that;

 The Orissa Estates Abolition Act of 1952 was enacted on 23.01.1952 in the State.
 The main objective of the concerned Act was the abolition of all zamindaris, other
proprietary estates, and interests in Orissa and after eliminating those intermediaries,
associating the occupants of lands in contact with the State Government.
 Aggrieved by the provisions of legislation enacted, the proprietors of the estates filed Six
appeals before the High Court of Orissa invoking Article 226 of the Constitution.
 The petition was filed for challenging the constitutional validity of the Orissa Estates
Abolition Act of 1952 as a whole. However, the matter was dismissed by the learned bench
of the Orissa High Court.
 Aggrieved by the dismissal, the petitioners have filed another appeal u/a 132 and 133 in the
Hon’ble Supreme Court assailing the validity of the said Act being violative of the
Constitution of India.

Ratio Decidendi:

 The doctrine of colorable legislation depends upon the competency of the legislature to enact
that law, the procedure followed and not merely on the motive of the body in passing such
law. The maxim asserts, “You cannot do indirectly what you cannot do directly.”
 The legislature was competent to make laws on the subject and also the ulterior motive for
laying the Act was not beyond the competency of the State Legislature. Thus, the Orissa
Agricultural Income-tax (Amendment) Act,1950 Act cannot render the law as colorable
and was not void.
  The State Legislature is empowered u/a 31(2) of the Constitution to place buildings which are
within the ambit of the estate for management or administration purpose in the
Government.
 The provisions mentioned in Orissa Estates Abolition Act, 1950 for determination of
compensation is not a colorable legislation as it comes within the ambit of Entry 42 of List
III of Schedule VII of Constituti
 If the legislature is competent to do a thing directly then the fact that it attempted to do
it indirectly or in a disguised manner can't make the respective Act invalid.

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.

What is the Doctrine of Pith and Substance?

The doctrine states that within their respective spheres the state and the union legislatures are made supreme,
they should not encroach upon the sphere demarcated for the other.

 However, if one among the state and the Centre does encroach upon the sphere of the other, the courts
will apply the Doctrine of Pith and Substance.
 If the pith and substance i.e., the true object of the legislation pertains to a subject within the
competence of the legislature that enacted it, it should be held to be intra vires although it may
incidentally encroach on the matters not within the competence of the legislature.
The Privy Council applied this doctrine in Profulla Kumar Mukherjee v Bank of Khulna.

 In this case, the Bengal Money Lenders Act of 1946 enacted by the State Legislature was challenged
with the contention that parts of the legislation dealt with promissory notes; a central subject.
 The Privy Council while upholding the validity of the impugned legislation stated that the Bengal
Money Lenders Act was in pith and substance a law relating to money lenders and money lending – a
state subject even though it incidentally trenches upon Promissory note – a central subject.
In State of Bombay v FN Balsara, the Bombay Prohibition Act was challenged on the ground that it
accidentally encroaches upon import and export of liquor across custom frontier – a central subject. The court
while upholding the impugned legislation declared that the Act was in pith and substance a State subject even
though it incidentally encroached upon a central subject

In the case of State of Rajasthan v. G. Chawla1, the state of Rajasthan made a law
restricting the use of sound amplifiers. This law was violated by the respondent
and the act was impugned by the judicial magistrate. On further appeal to the
1
Supreme Court, the state argued that the law was within the legislative
competence of the state legislature under the entry 6 of list II, i.e. the power to
legislate in relation to public health includes the power to legislate in relation to
public health includes power to regulate use of amplifier as it produces loud noise
whereas the opposition argued that amplifiers came under entry 31 list I i.e. post
and telegraphs; telephones; wireless; broadcasting and other like forms of
communication. The court decided that amplifier did not fall under entry 31 of list
I even though the amplifier is an apparatus for broadcasting and communication
the legislation in its pith and substance was on state matter and it was not held
invalid even if it incidentally encroached upon the subject of broadcasting and
communication.

DOCTRINE OF HARMONIOUS CONSTRUCTION

The aim of the judiciary and the courts should be to view the law as a whole.
The interpretation of the law should be such that it prevents confusion or
incompatibility between the different sections or parts of the statute being used.
Whenever a discrepancy arises between two or more statutes or different
clauses or sections of a statute, the doctrine of harmonious construction must
be followed. The doctrine is based on the straightforward principle that every
statute has a legal purpose and should be read in totality. The interpretation
should be such that it is unswerving and all of the statute’s provisions should be
used. In the event that harmonizing two or more statutes or different clauses or
sections of a statute is unlikely, the court’s decision on the provision would take
precedence.

Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000) is a

landmark case where the Supreme Court laid down five main principles that
govern the rule of harmonious construction that are as follows:

 The courts should try and avoid a conflict of seemingly disputing

provisions and effort must be made to construe the disputing provisions
so as to harmonize them.

 The provision of one section cannot be used to overthrow the provision

covered in another section unless the court is unable to find a way to
settle their differences despite all its effort.
 In the situation when the court finds it impossible to entirely reconcile
the differences in inconsistent provisions, the courts must interpret
them such that effect is given to both the provisions as far as possible.
 Courts must also take into account that the interpretation that makes
one provision redundant and useless is against the essence of
harmonious construction.
 Harmonizing two contradicting provisions means not to destroy any
statutory provision or to render it ineffective.