COLOURABLE LEGISLATION

INTRODUCTION
The doctrine of colourable legislation is based on the maxim that what cannot be
done directly cannot also be done indirectly. The doctrine becomes applicable when
a legislature seeks to do something in an indirect manner what it cannot do directly.
The doctrine thus refers to the question of competency of the legislature to enact a
particular law. If the impugned legislation falls within the competence of the
legislature, the question of doing something indirectly which cannot be done
directly does not arise.
DIVISION OF POWERS
Article 246 of the Indian Constitution is about subject matter legislation referring to
who has power with regards to which subject matter to make laws. If the legislature
makes law in colour or under guise on a subject without having required
competency to make laws on that particular subject then the Supreme Court can
invalidate the entire law.
WHEN CAN THE LEGISLATION ENACTED MAY BE REGARDED AS COLOURABLE
LEGISLATION
The legislation enacted may be regarded as colourable legislation only when a
legislature having no power to legislate, frames a legislation so camouflaging the
same as to make it appear to fall within its competence.
To decide whether or not the legislature has transgressed the sphere assigned to it,
what is material is the pith and substance, the true nature and character of the
legislation in question and not the outward or formal appearance of legislation. If
the subject-matter of the legislation, in substance, is beyond the powers of the
legislature, the form in which the legislation is clothed would not save it
from condemnation.
A legislature cannot overstep the field of competency indirectly. It is also
characterised as a fraud on the Constitution because no legislature can violate the
Constitution by employing an indirect method.
CASE LAWS
 In Naga People's Movement for Human Rights v. Union of India, AIR 1998 SC
431, 451: The Supreme Court rejecting the argument that The Armed Forces
 (Special Powers) Act, 1958, enacted by Parliament is colourable legislation and a
fraud on the Constitution, has observed in this connection:
"The use of the expression 'colourable legislation' seeks to convey that by
enacting the legislation in question the legislature is seeking to do indirectly what
it cannot do directly. But ultimately the issue boils down to the question whether
the legislature had the competence to enact the legislation because if the
impugned legislation falls within the competence of the legislature the question
of doing something indirectly which cannot be done directly does not arise".

 Also, in In R.S. Joshi v. Ajit Mills Ahmedabad, AIR 1977 SC 2279, the Court held
that the doctrine of colourable legislation does not involve any question of bona
fides or mala fides on the part of the legislature. If the legislature is competent to
pass a particular law, the motives which impelled it to act are irrelevant. On the
other hand, if the legislature lacks the competency, the question of motive does
not arise at all; the legislation will be invalid even if enancted with the best of
motives. Whether a statute is Constitutional or not is thus a question of power.

CONCLUSION
The doctrine of legislative colourable legislation suggests an encroachment on the
legislative power by testing whether the legislature has enacted a law as per its
authorised competency or not, hence protecting the Constitution.