Doctrine of Colourable

Legislation
Prof. S. P. Srivastava
 Basics
 The doctrine of colourable legislation refers to the question
of competency of the legislature while enacting a provision
of law. 
 Doctrine of Colorable Legislation is built upon the founding

stones of the Doctrine of Separation of Power

 If a legislature is prohibited from doing something, it may

not permitted to do this under the guide or pretence of

doing something while acting within its lawful jurisdiction
and this prohibition is an implied result of the maxim “what
cannot be done directly, cannot be done indirectly”
 If a legislature is prohibited from doing something, it may

not permitted to do this under the guide or pretence of

doing something while acting within its lawful jurisdiction
and this prohibition is an implied result of the maxim “what
cannot be done directly, cannot be done indirectly”
 In India ‘the doctrine of colorable legislation’ signifies only a
limitation of the law making power of the legislature. It comes
into picture while the legislature purporting to act within its
power but in reality it has transgressed those powers.
 The Supreme Court in the case of K.C gajapti vs state of Orissa
while explaining the doctrine held that “if the constitution of a
state distributes the legislative spheres marked out by specific
legislative entries or if there are limitations on the legislative
authority in the shape of fundamental rights, questions do arise
as to whether the legislature in a particular case in respect to the
subject matter of the statute or in the method of enacting it,
transgressed the limits of the constitutional power or not. Such
transgression may be patent , manifest and direct, but may also
be distinguished, covered and indirect and it is the latter class of
cases that the expression ‘colourable legislation’ has been
applied in certain judicial pronouncements.”
Maxim and Meaning
 “Quando aliquid prohibetur ex directo,
prohibetur et per obliquum”- This maxim
implies that “when anything is prohibited
directly, it is also prohibited indirectly”.
 Black’s Law Dictionary defines ‘Colorable’ as:

1. Appearing to be true, valid or right. 2.

Intended to deceive; counterfeit. 3. ‘Color’
has been defined to mean ‘Appearance, guise
or semblance’.
 Tests to determine the true nature of
the legislation
 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.
 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 bonafides or
malafides intention on the part of the legislature. 
Continued:
  If the legislature is competent enough to enact a
particular law, then whatever motive which
impelled it to act are irrelevant.
 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 always a presumption that the
legislature that the legislature does not exceed
its jurisdiction.
Scope of the Doctrine
 lagislation passed by a legislature in excess
of its powers allowed by the Constitution
could be struck down as ultra-virus.
 if the legislation is in pith and substance

within the scope of its allotted field, and the

exceeding of the power is only in regard to
incidental matters, the legislation will not be
held to be invalid.
Continued:
 The Constitution may have adopted the doctrine
of separation of powers which might mean that
the legislature should not excercise essential
judicial or executive functions.
 Very often, a Constitution may include a Bill or

Charter of Fundamental Rights which would

mean so many limitations on the legislative
competence of the legislature. Covert or
concealed attempt to overcome the limit so
imposed by e Bill of Rights may attract the
principle of colcurable legislation.
Continued:
 In the case of federal constitutions, when
exclusive legislative competence is allocated
between the federal and the regional
legislatures, attempts by one to legislate in a
covert fashion in the exclusive field allotted
to the other would be another instance of
oolourable legislation.
 Where the legislatures have attempted to

overstep the limits under the guise of

exercising ancillary power.
Limitations on the Application of
Doctrine
 1. The doctrine has no application where the powers of a
Legislature are not fettered by any Constitutional limitation.
 2. The doctrine is also not applicable to Subordinate Legislation.

 3. The doctrine of colourable legislation does not involve any

question of bona fides or mala fides on the part of the legislature.

The whole doctrine resolves itself into the, question of
competency of a particular legislature to enact a particular law.
 4. A logical corollary of the above-mentioned point is that the

Legislature does not act on Extraneous Considerations. There is

always a Presumption of Constitutionality in favour of the Statute.
 5. When a Legislature has the Power to make Law with respect to a

particular subject, it also has all the ancillary and incidental power
to make that law an effective one.
LEGISLATIVE ACCOUNTABILITY
 It indicates the process of holding persons or institutions
responsible for the performance as objectively as possible.
  In Indian constitution there is no direct contemplation of
legislative accountability.
 Accountability is the mechanism by which the concern
authority is explicable for account of his conduct. 
  Parliament is the agency through which the govt is
accountable.
 The indication of legislative accountability can only be
traced through the provision of Comptroller and Auditor
General of India as enumerated in article 148 and 149 of
the Indian constitution.
RELATION BETWEEN COLOURABLE LEGISLATION AND LEGISLATIVE
ACCOUNTABILITY

 It is very clear that the legislature can only make laws within
its legislative competence. If a statute is found to be invalid
on the ground of legislative competence it does not
permanently inhibit the legislature from reenacting the same
if the power to do so is properly traced and established. 
 The legislature is morally as well as legally accountable to
the common people. The doctrine has no application where
the power of the legislature are not fettered by any
constitutional limitations. So, any law made by disguise
where there is a prohibitions for making that law it will be
deemed as colourable exercise of legislative power. In this
manner the doctrine of colourable legislation is related to
legislative accountability.
K.C. Gajapati  Narayan Deo v. State Of
Orissa, AIR 1953 SC375
  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.”
Continued:
 Further the Supreme court in this case 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.”
 R.S Joshi v. Ajit Mills
 The Apex court observed that “In the
jurisprudence of power, 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 State Of Bihar v. Kameshwar
Singh 
 In this case, the Bihar Land Reforms Act,
1950, was held void on the ground that
though apparently, it purported to lay down
the principle for determining compensation
yet, in reality, it did not lay down any such
principle and thus indirectly sought to
deprive the petitioner of any compensation.
 Hingir-Rampur Coal Co. Ltd. v. The
State of Orissa,
 cases may arise where under the guise of
levying a fee Legislature may attempt to
impose a tax; and in the case of such a
colourable exercise of legislative power courts
would have to scrutinise the scheme of the
levy very carefully and determine whether in
fact there is a co-relation between the service
and the levy, or whether the levy is either not
co-related with service or is levied to such an
excessive extent as to be a presence of a fee
and not a fee in reality.
Gullapalli Nageswara Rao v. APSRTC
 The legislature could only make laws within its legislative
competence. Its legislative field might be circumscribed by
specific legislative entries or limited by fundamental rights
created by the Constitution. The legislature could not over-
step the field of its competency, directly or indirectly. It
would be for the Court to scrutinize if the legislature in
purporting to make a law within its sphere, in effect and
substance, reached beyond it, it had in fact the power to the
lawand its motive in making it would be irrelevant. It was
therefore held that the Road Transport Department of the
Andhra Pradesh Government is a State Transport
Undertaking under the Central Act and therefore it was
within its legal competence to initiate the scheme. Thus the
doctrine was held inapplicable.
State of Punjab v. Gurdial Singh & Ors

 Court held that the action becomes bad

where the true object is to reach an end
different from the one for which the power is
entrusted, guided by an extraneous
consideration, whether good or bad but
irrelevant to the entrustment. When the
custodian of power is influenced in exercise
of its power by considerations outside those
for promotion of which the power is vested,
the action becomes bad for the reason that
power has not been exercised bonafide for
the end design.
All Kerala Online Lottery Dealers v.
State Of Kerala & Ors
 The Apex Court held that it was not a case of
abdication of legislative power and would not be
bereft of any guidelines if the legislation banning
lotteries was applied uniformly. It was further ruled
that if the ban on the online lottery applies uniformly,
it would not be a case of exercising power by a
delegatee without any guidelines. The Act has been
designedly made to suppress the mischief of lottery.
Therefore, the Apex Court felt that an interpretation,
which advances the object of the Act, should be
favoured. That means, the State can prohibit online
lotteries, if it is not running the said type of lotteries.