THE DOCTRINE OF COLOURABLE LEGISLATION OF INDIAN CONSTITUTION.

Article submitted by Ruma Minj,Indian Institute of Legal Studies, Siliguri.

One of the essential feature of federalism is the distribution of power. The objective behind the formation of a federal state is a division of authority between the national government and the distinct states. The basic principle of Indian federation is that the power is distributed between the center and the state that is legislative, executive, and financial authority not by any law passed by the center but by the Constitution. Both center and state are empowered with sovereign powers to be exercised in the area allotted to them under 245 and 246 of the Indian Constitution.

The doctrine of Colourable Legislation

The Constitution of India furnishes direct separation of power by which a balance has been maintained between the various levels of the government and primarily the law making power vests upon the legislature. The doctrine of Colourable Legislation essentially encompasses the question of competency of the legislature during the enactment of any provision of law. This doctrine also puts a limitation on law making power of the legislature. Sometimes the legislature while acting within its limits may make attempt to achieve something which it has no power to attain. This attempt to do indirectly what it cannot do directly because of the limitations on legislative competence is interpreted as colorable legislation. The entire doctrine of Colourable Legislation is founded upon the maxim Quandoa liquid prohibetur ex directo, prohibeturet per obliquum which implies that “when anything is prohibited directly, it also prohibited indirectly”. The Court will look in the true nature and character of the legislation and for that it’s object, purpose, or design to formulate law on a subject is relevant and not it’s motive. The legislature has the power to formulate law but the motive in formulating the law is irrelevant.[i]

Limitations on the legislative power

Limitations on the legislative powers occurring from constitutional provisions are of four categories:

1) The Constitution may have adopted the doctrine of separation of powers which might mean that the legislature should not exercise essential judicial or executive functions. If, for example, under the guise of exercising legislative power, an attempt is rendered to exercise judicial power, it would be a covert attempt to overcome one of the limitations assessed on the legislature by the Constitution.

2) The constitution may incorporate a Bill of Rights which would imply many restrictions on the legislative competence of the legislature. Covert or concealed attempt to overcome the restriction so assessed by a Bill of Rights may entice the principle of colourable legislation.

3) In the federal constitution, when restricted legislative competence is distributed between the federal and the regional legislatures, attempts by one of the legislature to legislate in a covert manner in the exclusive field allocated to the other would be another instance of colourable legislation.

4) There have been also instances of colourable legislation where the legislatures have attempted to infringe the limits under the guise of exercising ancillary power.

Therefore, if the legislature has competence to attain what has been attained by the legislation in question, then no question of colourable legislation will occur.

Determining the nature of the legislation

The Supreme court of India in various judicial pronouncements has laid down the specific tests for determining the true nature of the legislation as colourable :

1. The court must determine the substance of the impugned law, as different from its form or the label which the legislature has provided it. For the objective of determining the substance of an enactment, the court will evaluate two aspects firstly the effect of the legislature and secondly the objective and the purpose of the act.

2. The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is an issue of vires or power of the legislature to pass the law in question.

Case Laws

State of Bihar v. Kameshwar Singh[ii]

In the instant case, a law has been declared invalid on the ground of colourable legislation. Here the Bihar Land Reforms Act,1950, was held void on the ground that though apparently, it purported to pass a principle for determining compensation yet, in reality, it did not pass any such principle and thus indirectly sought to deprive the petitioner of any compensation.

K. C. G. Narayan Dev v. State of Orissa[iii]

In this instant case the supreme Court explained the meaning and scope of the doctrine of colourable legislation and held that if the constitution disseminates the legislative power amongst various legislative bodies, which have to function within their respective regions marked out by specific legislative entries, or if there are restrictions on the legislative authority in the form of fundamental rights, question originates whether the legislature in a specific case has or has not, in respect to the subject matter of the statute or in the procedure of enacting it, infringed the limits of its constitutional powers. Such misconduct may be patent, manifest or direct, but it may be also disguised, convert, or indirect, or and it is to the latter class of cases that the expression of colourable legislation has pertained in judicial pronouncements.

The notion disseminated by the expression is that although apparently, a legislature in enacting a statute purported to conduct within the boundaries of its power, yet the substance and in reality it transgressed these powers, the transgression being veiled by what arises, on adequate examination, to be a mere pretense or disguise. In other words, it is the substance of the Act that is material and not merely the form or outward impression, and if the subject matter in substance is something which is beyond the scope of that legislature to legislate upon the form in which the law is furnished cannot protect it from condemnation. The legislature cannot overstep the constitutional prohibition by utilizing indirect methods.[iv]

Chiranjit Lal v. Union of India[v]

There have been some instances where the Supreme Court has struck down legislation applying to a particular person or case on the ground of discrimination under article 14. In this instant case, the legislation was upheld on the ground that even a single instance depending upon peculiar situations could give the basis for a reasonable classification for the purpose of article 14. This decision cannot be considered authoritative on this point and hence the dissenting judgment of Patanjali Sastri J. is unanswerable. The majority decision was rendered ineffective by the instant subsequent decision in Dwarakadas v. Sholapur Spinning and Weaving Co.[vi]

Ameerunnissa Begum v. Mahboob Begum[vii]

In this case, also the Supreme Court struck down an act as it was offending article 14. An Act of the Hyderabad Legislature, the Waliuddowla Succession Act,1950 which had deprived two ladies and their children of their alleged rights to succession under the Muslim law.

Naga Peoples Movement of Human Rights v. Union of India[viii]

In this case it was held that colourable legislation is enacted by the legislature of a legislation pursuing to do indirectly what it cannot do directly. The motive of the legislature is irrelevant to castigate an act as a colourable device.

Sonapur Tea Co. Ltd. v. Must. Mazirunnessa[ix]

In this case, it was repeated relying on the Gajapatis case that the doctrine of colourable legislation certainly postulates that the legislation attempts to do indirectly what it cannot do directly.

State of Punjab v. Gurdial Singh & Ors.[x]

In this case, the Apex court held that the action comes to be bad where the true objective is to achieve an end different from the one for which the power is authorized, guided by an extraneous consideration, whether good or bad but irrelevant to the entrustment. When the custodian of power is impacted in the exercise of its power by considerations outside those for promotion of which the power is vested, the action evolves to be bad for the reason that the power had not been exercised bonafide for the end.

Conclusion

The doctrine of Colourable Legislation is created upon the founding stones of the doctrine of separation of power. Separation of power mandates a balance of power between different components of the state that is the legislature, executive, and judiciary. The primary function of legislature is to formulate laws but whenever the legislature attempts to change the balance of power towards itself then the doctrine of colourable legislation is attracted to take care of legislative accountability. When the power is exercised in bad faith to attain ends beyond the sanctioned objective of power by the pretension of gaining a legitimate goal, it is called colourable exercise of power.

[i] Nageshwar v. A. P. S. R. T. Corporation, AIR 1959 SC 316. [ii] State of Bihar v. Kameshwar Singh, AIR 1952 SC 252. [iii] K. C. G. Narayan Dev v. State of Orissa, AIR 1953 SC 375. [iv] R. D. Joshi v. Ajit Mills, AIR 1977 SC 2279 . [v] Chiranjit Lal v. Union of India, AIR 1951 SC 41. [vi] Dwarakadas v. Sholapur Spinning and Weaving Co., AIR 1959 SC 119. [vii] Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91. [viii] Naga Peoples Movement of Human Rights v. Union of India, (1998) 2 SCC 109. [ix] Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, [1962] 1 SCR 724. [x] State of Punjab v. Gurdial Singh & Ors., AIR 1980 SC 319.