Doctrine of Colorable Legislation

This post has been created by Monesh Kumar, a third year law student from Guru Gobind Singh Indraprastha University.

“Legislation is the art of compromise.-Harry Reid.”

INTRODUCTION

Doctrine of Colorable Legislation is a gizmo used by the Supreme Court to interpret various Constitutional Provisions. The Doctrine of colorable legislation means “if the constitution of a state distributes the legislative powers in a specific legislative entries or if there are limitations on the legislative authority in the form or context of fundamental rights, questions may arise as to whether the legislature in a particular case has, in respect to the subject matter of the statute, exceeded or acted ultra vires in regard of the limits of the constitutional power or not.

ORIGIN AND MEANING

Doctrine of Colorable Legislation is made through the concept of the Doctrine of Separation of Power. Separation of Power directs that a balance of power is to be limited and defined between the different parts of the State i.e. between the Legislature, the Executive and the Judiciary. The main Function of the legislature is to make laws. Whenever, Legislature tries to relocate this balance of power towards itself then the Doctrine of Colorable Legislation comes into effect to play and take care of Legislative Accountability.

Black’s Law Dictionary defines ‘Colorable’ as:

1. Appearing to be true, valid or right.
2. Intended to deceive; counterfeit.
3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of Colorable Legislation is that under the ‘color’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

The doctrine has its roots in the Latin maxim:

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means that “what a person cannot do directly Is also what he cannot do or is not entitled to do indirectly.”

DOCTRINE AND CONSTITUTION

In our Constitution, this doctrine is usually referred to Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.

This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one.

CASE LAWS:

 State of Bihar Vs. Kameshwar Singh

This is the only case where a law has been declared invalid on the ground of colorable legislation. In this case the Bihar Land Reforms Act, 1950, was held void on the ground that though apparently it purported to lay down principle for determining compensation yet in reality it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any compensation.

One of the landmark judgment relating to this doctrine was given in the case of 

K.C. Gajapati Narayana Deo And Other v. The State Of Orissa

“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective 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 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 transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression ‘Colorable Legislation’ has been applied in certain judicial pronouncements. 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, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise.”

This Doctrine is also called as “Fraud on the Constitution”. The failure to comply with a Constitutional condition for the exercise of legislative power may be overt or it may be covert. When it is overt, we say the law is obviously bad for non- compliance with the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non-compliance is covert, we say that it is a ‘fraud on the Constitution’, the fraud complained of being that the Legislature pretends to act within its power while in fact it is not so doing. 

 Limitation of colorable legislation–

1. The doctrine is also not applicable to Subordinate Legislation.
2. The doctrine of colorable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to enact a particular law.
3. The doctrine has no application where the powers of a Legislature are not fettered by any Constitutional limitation.
4. As already discussed above that the transgression of Constitutional Power by Legislature may be patent, manifest or direct, but may also be disguised, covert and indirect and it is only to this latter class of cases that the expression “Colorable Legislation” is being applied.

Conclusion

 “It may appear on scrutiny that the real purpose of a legislation is different from what appears on the face of it, but it would be a colorable legislation only if it is shown that the real object is not attainable to it by reason of any constitutional limitation or that it lies within the exclusive field of another legislature.”- K.C. GAJAPATI NARAYAN DEO AND OTHER v. THE STATE OF ORISSA.

When the legislature had the power to make a law with respect to any subject it had all the ancillary and incidental power to make that law effective. The Constitution distributes legislative powers between the State Legislatures and Parliament, and each has to act within its defined limits. The legislature cannot overlap the field of competency, directly or indirectly. The court will investigate to ascertain whether the legislature made a law which though in forms appears to be within its sphere in effect or substance, reaches beyond it or not.