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Doctrine Of Colourable Legislation

Federalism is one of the fundamental ideas in the Indian Constitution that firmly establishes and upholds the theory of colourable law. Recall that the separation of powers and checks and balances are the two guiding concepts of the federalism form of government. According to the collective understanding of federalism, each governmental organ is endowed with authority, and none of the component units is permitted to impede the other's ability to carry out their duties.

It is important to remember that the federal system differs from unitary government in that there are two levels of government in a federation: one at the centre and one that oversees the provinces and states.

The checks and balances principle, in contrast to unitary, upholds the concept of the separation of powers by mandating that each organ oversee the operation of the others in order to prevent the eventual dictatorship of one organ.

In Brief: The Doctrine of Colorable Legislation

India is a union of states, yet despite this, the states are not allowed to break away from the Indian federation. There are undoubtedly a number of shared laws between the union and the state, such as an independent and integrated judiciary, a supreme Constitution, a single citizenship, a common election commission, etc. However, the Indian Constitution clearly defines the boundaries of authority and power between the three branches of government, which is where the doctrine of the separation of powers comes into play.

According to that, the primary duty of the legislature is to make laws, however with restrictions; this is the guiding principle behind the doctrine of colorable legislation. "The method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent," in the words of K.C. Wheare The Indian Constitution's Article 246 specifies how the Parliament and state legislatures will share legislative authority in accordance with the Seventh Schedule.

There are three lists in this schedule:
  • List I, often known as the Union List, over which the Parliament has sole authority,
  • List II, the State List, which is solely within the purview of the State Legislatures,
  • List III, often known as the Concurrent List, is within the jurisdiction of both the State Legislatures and the Parliament
As a result, if a legislature tries to go beyond its authority, it is subject to the Doctrine of Colorable Legislation.

What Is The Purpose Of The Doctrine Of Colourable Legislation?

The proverb "What cannot be done directly cannot also be done indirectly," which is based on the Latin proverb "Quando aliquid prohibetur ex directo, prohibetur et via obliquum," is a good example of the doctrine of colourable legislation. When the court is faced with a case where the legislative competence is at stake, the doctrine of colourable legislation enters the picture.

In order to determine whether or not that particular legislature has the authority to legislate on the matter, the court will look at whether the challenged statute and its enactment come within its jurisdiction. In that case, the statute would be deemed invalid. It is interesting to note that occasionally the contested legislation appears to fall under its purview, but its actual outcome or intent lies outside of its purview.

Recognizing The Principle Of Color-Coded Legislation

The Doctrine of Colourable Legislation serves as a record of how the various legislative branches are divided in terms of authority. The doctrine's core idea is that even if a law's subject matter is outside of its purview, it nevertheless stands void if it was passed in an indirect manner.

As a result, if a legislature is unable to pass legislation on a subject that cannot be dealt with directly, then the same cannot be done indirectly using a constitutionally authorised power.

I should reiterate that, in accordance with Article 246 of the Indian Constitution, neither the Union government nor the States List have any legislative authority over the issues listed there. However, the doctrine of colourable legislation will apply if the Union attempts to pass legislation relating to the taxation of agricultural revenue (item 46, state list) while disguising its constitutionally granted legislative authority over all taxes (article 82, union list).

Fraud on the Constitution

According to the doctrine of colorable law, an action that is unlawful is always unlawful and cannot be made legal by changing its colour, language, form, or hidden purposes.

In the case of K.C. Gajapati Narayan Deo v. State of Orissa[1], the Supreme Court of India provided a clear explanation of the same " 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 the 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."

Therefore, anything that is forbidden explicitly is likewise illegal indirectly; in other words, the law's subject is its substance, not how it looks. Furthermore, no amount of disguising can shield legislation from criticism if the subject matter is outside the purview or purview of the legislature.

This is the rationale behind the nickname "Fraud on the Constitution" given to the doctrine of colorable legislation. As a result, one of the other constitutional doctrines, the doctrine of colorable legislation, assists the court in interpreting the conferred powers, particularly for the "legislative" branch of the other two branches of government.

It is important to remember that the Doctrine of Colorable Legislation prevents the Parliament and state legislatures from extending their authority beyond what is necessary to accomplish their goals. Therefore, the Doctrine cannot be used when the legislature attempts to accomplish a goal without going outside the bounds of its authority.

Background History Of The Colorable Legislation

The idea of self-government increased its presence and began to gain relevance in the commonwealth and a substantial portion of the British Empire during the colonial period, which is when the doctrine of colorable law first became prevalent. The legislative authority given to the federal government and the various provincial divisions was monitored and checked using this doctrine. Every time a dispute over the center's and the provinces' legislative authority arose, they utilised this doctrine to decide if the law was legal.

The Indian judiciary then used Canadian and Australian precedents to adopt the Doctrine while determining the legislative competence of the legislatures. But what was the justification? Jawaharlal Nehru described the Doctrine's significance as

"Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where in fact there has been a gross abuse of the law, wherein fact there has been a fraud on the Constitution."

Jus Alladi Krishnaswami Ayyar further stated in the constituent assembly as:
"It is an accepted principle of Constitutional Law that when a Legislature, be it the Parliament at the Centre or a Provincial Legislature, is invested with a power to pass a law in regard to a particular subject matter under the provisions of the Constitution, it is not for the Court to sit in judgment over the Act of the Legislature.

Of course, if the legislature is a colourable device, a contrivance to outstep the limits of the legislative power or to use the language of private law, is a fraudulent exercise of the power, the Court may pronounce the legislation to be invalid or ultra vires"

Meaning of Colorable Law in Literal Terms

Colorable, in common usage, denotes a semblance or guise, i.e., something that appears to be real or proper but is intended to deceive. The Supreme Court of India stated in the case of K.C. Gajapati Narayan Deo v. State of Orissa[4] 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, but 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."

Therefore, it is called colorable legislation when a law is coloured differently to make it appear to fall inside the authority but actually deals indirectly with the subject outside of its purview.

Relevance of the doctrine of colorable legislation in the Constitution

The Indian Constitution's Article 246 addressed the division of legislative power through lists with topics designated for the union, the state, and both under the seventh schedule.
The Lists include:
  • Union list
  • State list
  • Concurrent list

The overall goal is to prevent one legislative branch from meddling in the affairs of another.

Limitations of the Colorable Legislation Doctrine
The following situations preclude the use of the doctrine of colorable legislation:
  • when the constitutional provisions, such as Article 246 or Part III of the Constitution, do not restrict the power of the legislatures.
  • Whenever the contested legislation involves secondary Legislation

The doctrine of colorable legislation simply considers the legislative competence of the legislator and does not take into account the relevance or intent of an enactment. Additionally, the burden of proof for the challenged legislation's ultra vires status rests with the petitioner; up until that point, the law will always be presumed to be constitutional.

There is always a presumption in favour of the constitutionality of an enactment, and the burden is on him who challenges it to demonstrate that there has been a clear violation of the constitutional principles, according to the court's ruling in Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & Ors.

According to the general understanding of the doctrine of colorable legislation, the Constitution divided power between the state legislatures and the Parliament. Both legislatures are given complete freedom to operate within their respective spheres of responsibility, but they are both prohibited from directly or subtly violating the other's boundaries. Therefore, the legislative body is not permitted to pass legislation on a subject that affects the issue outside of its purview. If so, the doctrine of colorable legislation will take effect to strengthen the powers conferred by the constitution.

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