Doctrine of Colourable Legislation

This article is written by Akshaya V, a student of CMR University, School of Legal Studies, Bangalore.

Synopsis

This article gives a narrow view on working of Indian democracy and separation of powers in the federal system serving as the Preamble of the Constitution, further elaborating on the very topic of Doctrine of Colourable Legislation with relevant judicial pronouncements.

INTRODUCTION

One of the pertinent features of the Constitution is federalism. Federalism determines the distribution of powers between various constituent units across the country. With respect to decision making at higher levels, the government is divided into two categories – Central and State Government. Separation of powers was first coined by French political enlightened thinker Baron de Montesquieu. The Seventh Schedule of the Constitution describes and distributes legislative powers between the Central and the State. In a democratic country like India, accountability, transparency and separation of powers is mandatory. Therefore, powers are distributed to and between the three pillars of Indian democracy – the legislature, executive and judiciary. The legislature is the law-making body of the Country, executive ensures that the laws are implemented and judiciary adjudicates/interprets laws whenever there is a dispute.

Separation of Powers in India

In India, the Constitution is the Supreme legislation. Notwithstanding that, Parliament is said to be supreme as the power to amend the Constitution lies with the Parliament. However, the legislative powers are distributed to subordinates in the Country to enact laws to govern internal activities. For example, bureaucrats in the Country may enforce their powers in making administrative laws. Delegation of supreme legislation is permitted in concurrence with the parent law. The President and Prime Minister in India implement such laws for the welfare of people in the Country ensuring peace and harmony. The adjudicating powers lie with the judiciary in the model of courts such as the Supreme Court, High Courts, District courts, tribunals and other subordinate courts. The functions of the legislature, executive and judiciary are independent of one another and there shall be no interference. However, Supreme Court and High Courts are embedded with power of judicial review and may declare any law passed by the Legislation as ultra vires its power or unconstitutional.

The Doctrine of Colourable Legislation

The doctrine of colourable legislation is sternly restricted to the question of legislative competency of the Centre and the State. It challenges the practicability of the power of the legislature to make laws. If Parliament enacts a law under any of the entries mentioned in List II of the Seventh Schedule, save in so far in cases of national emergency as envisaged under Article 250 and in matters of national interest, the law shall be declared ultra vires and invalid for the laws shall be made exclusive by the State legislature on the subjects enumerated in the State List. Similarly, the State enacting a law on any of the subject matters under List I of the Seventh Schedule. When a law, on its face, looks to be enacted by a legislature of competency but by applying the doctrine of “pith and substance” it comes to light that such legislature is not competent to enact the law. This is termed as the doctrine of colourable legislation.

In the case of K.C. Gajapati Narayana Deo v State of Orissa AIR 1953 SC 375, the Agricultural Income Tax (Amendment) Act, 1950 was said to be as a colourable piece of legislation pointing that the real object of the act was different from what was stated in the Act. The Supreme Court had classically stated that the doctrine of colourable legislation does not consider bona fide or mala fide intent of the legislature in making laws, but only resolves the question of competency of a legislature. A legislature, whether Central or state, is purported to act within the limits of its powers, yet in reality transgressed these powers which, on examination gives the impression of pretence.

The Supreme Court of India, in various judicial pronouncements, has laid down certain guidelines to determine the nature of legislation which is called into the question of validity or integrity as colourable –

the substance of the law in dispute shall be looked into by the Court distinguished from the label given by the Legislature.
the Court shall, while examining the substance of an Act, shall keep in mind the object and purpose of such Act.
The essence of Doctrine of Colourable legislation is the motive of the legislature but its power to enact.

The Apex Court had held that the enacted law is outside the Court’s capacity to scrutinise the policy which proceeded to be called as an Act falling under the scope of the legislation. There is a presumption from a maxim – utres magis, valet quam parret which means the Legislature shall not go further of its jurisdiction. However, the burden of establishing that the said act is not within the competence of a legislature lies on the person claiming to be ultra vires.

Legislation may transgress from its competence in enacting a law, however, the legislature is not inhibited from making subsequent legislation or re-enacting the invalidated Act and shall not be said to be colourable legislation. So the doctrine does not connote the colour of legislation but whether it has acted within its scope. A legislature is legally accountable to its people. The doctrine is not applied to where the power of the legislature is not restrained by any constitutional limitations. So, any law made by camouflage and where there is an injunction for making that law shall be deemed as a colourable exercise of legislative power. The doctrine of colourable legislation is related to legislative accountability.

In the case of K.T. Moopil v State of Kerala AIR 1960 SC 512, the Travancore Cochin Land Tax Act,1955 was challenged to be unconstitutional and colourable in view of Article 14 and Article 19(1)(f). The Act, in one of its operative provisions, said that a person earning Rs. 3100 shall pay taxes for Rs. 5400. The Supreme Court held that the nature of this provision was confiscatory in terms of land and declared this was adopted by the legislature to confiscate the property of citizens.

In Welfare Association A.R.P. v Ranjit P Gohil, the legitimacy of the Bombay Rents, Hotel, Lodging House Rates Control, Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment Act, 1996 was questioned in view of legislative competence. The Court looked into the aspect of transgression of authority by the legislature conferred by the Constitution and object or purpose of the Act. While doing so, the Court shall not investigate motives that influenced the legislature to exercise its power.

In the case of State of Bihar v Kameshwar Singh, the only case where Bihar Land Reforms Act, 1950 was declared invalid on the basis of the colourable legislature. The Act provided for the abolition of the landlord system by paying compensation to tenants from the rent accrued by the owners but in substance, the Act did not lay down such principle. Hence, the Act was held to be colourable legislation and not within the competence of the Bihar State legislature enacting the impugned Act. There is barely any other case of declaring a law invalid on grounds of colourable legislation.

Conclusion

The Doctrine of Colourable Legislation is thus understood by the principle, “what legislation shall not do directly, shall not do indirectly as well.” A legislature is fettered by the Constitution to enact a law beyond its jurisdiction. So where a law is not enacted by direct means, shall not be enacted by indirect means. The essence of this Doctrine is to observe the transgression of powers by the legislature. The doctrine of colourable legislation keeps check on legislative accountability in a democratic and federal country like India, hence becoming an integral aspect of the system.

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