Q. Explain the doctrine of colourable legislation.

 

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Answer

 

Introduction

The Doctrine of Colourable Legislation is based on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”, which says that what cannot be done directly, should also not be done indirectly. The doctrine is used in the cases to determine questions of competency to enact a law when a legislature oversteps its conferred power and legislate upon something indirectly which it can’t do in a direct manner.

 

Scope of this doctrine

Article 246 of the Indian Constitution has separate subjects for law-making in three lists under VII Schedule. That is, it has segregated numerous subject matters, each subject matter is associated with either State, Centre or Both.

If a subject matter is in the State List, then Union cannot legislate upon such matter; and if a subject matter is in the Union List, then State cannot legislate upon such matter.

If the legislature tries to legislate upon such subject matter, which is outside the scope of its power, and it does so indirectly so that it does not look like that it has legislated upon a law outside of its scope; then such instance is called Colourable Legislation, and same is not permissible.

 

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LIMITATIONS ON THE DOCTRINE OF COLOURABLE LEGISLATION

Nothing comes with unlimited scope, this doctrine has also certain limitations:

i.                     The presumption is always in the favour of Constitutionality of Law and the burden to prove is upon the Petitioner.

ii.                   This Doctrine will not work on such instances, where Legislature has no Constitutional Limitation.

iii.                 It is not applicable to Subordinate Legislation.

iv.                 The intention of the legislature while passing an enactment is irrelevant to decide its validity.

 

Important cases

i.                     STATE OF BIHAR V. KAMESHWAR SINGH

The petitioner, in this case, challenged the validity of the Bihar Land Reforms Act 1950 on the basis that the act was supposedly intended to lay down the principle of compensation but in fact, it didn’t lay down any such principle. This was alleged as the implicit attempt to deprive the petition of his right to compensation, and challenged on the ground of colourable legislation.

In this case, the Court applied the concept of Doctrine of Colourable legislation and declared a law invalid.

ii.                   K C Gajapati Narayan Deo vs State of Orissa,

In this case, SC applied this doctrine stating that constitution has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres. Any colourable exercise by any department will be deemed as void. The question whether any body has transgressed its power or not may arise. Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or indirect. Doctrine of colourable legislation also applies to such covert and indirect transgression of power.

 

Conclusion

The Constitution of India has made a rigid distribution of powers between Parliament and State Legislatures and each one of them is bound to act within its circumscribed sphere. The question of legislature competency often arises when they seek to transgress the limits imposed by the Constitution but these transgressions are not always direct or patent. To deal with indirect, covert, or disguised violation scenarios, the Doctrine of Colourable legislation comes to the rescue. The Doctrine acts as a fundamental tool of the Judiciary to keep a check on the legislative powers granted to the Union and State Governments and decide the validity of the legislation in question.

 

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