THE DOCTRINE OF COLOURABLE LEGISLATION

Federalism is one of the basic features of Indian constitution. By virtue of this power
the constitution envisages a demarcation of governmental functions and powers
between various constituent units of the country. Generally in a federation there are
two levels of govt. the existence or authority of each level of the Government has
been guaranteed by the constitution. Indian system is very much influenced to the
colonial rulling system of the English for many reasons. One of the influences of this
must be the policy which created the three pillars of the democracy i.e. executive,
legislature and the judiciary. In Indian constitutional pattern a direct separation of
power prevails by which a balance has been maintained between the different
organs of the govt. among these the law making power primarily vests on the
legislature.

The doctrine of colourable legislation refers to the question of competency of the

Legislature of a federal state is accountable to its people and the legislation has
different power which is vested upon it by the constitution. So the question is what
would be the extent and context of legislative accountability with reference to the
power conferred upon it in the light of doctrine of colourable legislation in Indian
scenario.

To get a satisfactory answer of this above question first we have to deal with the
doctrine of colourable legislation. 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” and This doctrine is
based on the maxim ‘what cannot be done directly, cannot also be done indirectly. It
is applicable when the legislature intends to do something indirectly which cannot be
done directly. . Later on I deal with the legislative accountability, which means
excessive secrecy or open abuse of the public trust vested upon legislative assembly
is not tolerable. They are bound to do justice towards the public aspirations which
led them to their seats. These two parts are discussed in a broad manner respectively
with the help of constitutional provisions and judicial decisions.
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 when it cannot do it
directly. Thus, it refers to the 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.

COLOURABLE LEGISLATION IN INDIA:

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. So
the doctrine becomes applicable whenever any legislation seeks to do in an indirect
manner what it cannot do directly. If the impugned legislation falls within the
competence of legislature, the question of doing something indirectly which cannot
be done directly does not arise.

In India legislative powers of Parliament and State Legislatures are conferred by Art.
246 and distributed by Lists I, II and III in the seventh schedule of the Constitution.
Parliament has exclusive power to make laws with respect to any of the matters in
List II. Parliament and State Legislatures have both powers to make laws with respect
matters in List III which is also known as concurrent list. Residuary power of
legislation is vested in Parliament by virtue of Art. 248 and entry 97 in list I. the
power of State Legislatures to make laws is subject to the power of Parliament to
make laws with respect to matters in List I and III. While examining the legislative
competence of Parliament to make a law all that is required to be seen is whether
the subject matter falls in List II which Parliament cannot enter for in view of the
residuary power vesting in Parliament other matters are not outside the legislative
competence of Parliament. Legislative competency is an issue that relates to how
legislative power must be shared between the centre and states. It focuses only on
the relation between the two.

The question whether the Legislature has kept itself within the jurisdiction assigned
to it or has encroached upon a forbidden field is determined by finding out the true
nature and character or pith and substance of the legislation . The main point is that
the legislature having restrictive power can not step over the field of competency. It
is termed as the “fraud on the constitution”
The Supreme Court in the case of K.C gajapti vs state of Orissa1 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.”

The Supreme court of India in different judicial pronouncements has laid down the
certain tests in order to determine the true nature of the legislation impeached as
colourable:-

1. 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.

2. 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. If the legislature is competent enough to enact a
particular law, then whatever motive which impelled it to act are irrelevant. On the
other hand, it was observed by the Apex court that “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 hardly any instance where a law has been declared by the court as invalid on
the ground of competency of the legislature. The only instance is in the case where a
state law dealing with the abolition of landlord system, provided for payment of
compensation on the basis of income accruing to the landlord by way of rent. Arrears

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of rent due to the landlord prior to the date of acquisition were to vest in the state
and half of these arrears were to be given to the landlord as compensation. The
provision was held to be a piece of colourable legislation and hence void on the basis
of the following grounds:-

 That it was not within the competence of Bihar state legislature to enact the
impugned act.
 That the acquisitions of the estates not being for public purpose, the act was
unconstitutional
 That the legislative power in various sections of the act has been abdicted in
favour of the executive and such abdication of power was unconstitutional.
 That the act was a fraud on the constitution and that certain parts of the act
were unenforceable on account of vagueness and indefiniteness.

There is always a presumption that the legislature that the legislature does not
exceed its jurisdiction (ut res magis, valet quam parret) and the burden of
establishing that an act is not within the competence of the legislature or that it has
transgressed other constitutional mandates as is always on the person who
challenges its constitutionality.

So the ultimate analysis is that colorable legislation indicates that while making the
law the legislature transgressed the limits of its power. But the question may be
raised that whether or not parliament can do something indirectly, which it cannot
do directly, may depend upon why it cannot do directly. There are so many examples
in law as well as life where something can be done indirectly, although not directly.
So the true principle of colourable legislation is “it is not permissible to do indirectly,
what is prohibited directly.”