This article on ‘The doctrine of Colourable Legislation under the Indian Constitution: All you need to know‘ was written by Priyanka Kalra, an intern at Legal Upanishad.
This article sums up everything you need to seek about the Doctrine of Colourable Legislation. The doctrine delimits the jurisdiction between the three organs of the government. The author intends to clear all the doubts regarding how it affects Indian Legislation or the relevance of this doctrine in the Indian Constitution. We will further observe some pertinent case laws which will help us understand the origin as well as the operation of the doctrine.
Meaning of Doctrine of Colorable Legislation
Black’s Law Dictionary defines ‘Colorable’ as: “that which has or gives color; That which is in appearance only, and not in reality, what it purports to be. Counterfeit, feigned, having the appearance of truth.” (BLACK, 1968)
Procured from the Legal Maxim, “Quando aliquid prohibetur ex directo, prohibetur et per obliquum,” Doctrine of Colourable Legislation means “Whatever the government is unable to do directly, it cannot do indirectly.” The doctrine makes it clear that the legislature cannot try to do something in the black shade that it’s been forbidden to do straightforwardly. When the legislature goes beyond its authority, it will be declared ultra vires.
The Supreme Court has the authority to declare invalid the entire legislature that passes laws in color or disguise on a subject without having the necessary competency to do so. It raises questions about the accuracy of an enacted law regarding the legislature that passed the law and investigates whether or not the legislative branch has the authority to enact laws on that subject.
The true nature and character of the legislation, or its essence and substance, determines whether the legislature stayed within the jurisdiction delegated to it or strayed into forbidden territory. The main point is that a legislature with limited powers cannot go above and beyond its mandate. It is referred to as “constitutional fraud.”
Why Do We Need the Doctrine?
Article I of the Indian Constitution states “India, that is Bharat, shall be a Union of States.” India has adopted the feature of Federalism in the Indian Constitution from the Canadian Model. This means that the power has been divided among different organs of the government and specified in the Indian Constitution under Article 246. Power sharing is one of the most effective features of democracy. It provides separate jurisdiction to the Centre, State, and local government, so the clashes between the three are avoidable.
Such boundaries have been created through the doctrines i.e., the Doctrine of Colorable Legislation, which ensures that no organ of government abuses power Article 246 of the Indian Constitution divides power into three lists: the Union List, the State List, and the Concurrent List.
Limitations of the Doctrine
The burden of proof lies upon the plaintiff i.e., the party who wishes to depict that there is a violation of constitutional principles. The person claiming that there is colorable legislation has to prove in court that the law is invalid and unconstitutional. This principle of constitutionality presumption was established in the case of Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. It was held that: “There is always a presumption in favor of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”
Not all acts of the legislation shall be subject to the applicability of the Doctrine of Colorable Legislation, there are limitations to its applicability as follows:
- It is inapplicable in cases where the legislature’s authority is not limited by constitutional provisions.
- The cases of subordinate legislation are not considered under the application of the doctrine.
- The intent of the legislature in enacting a law is unimportant in determining its validity.
- A presumption of constitutional validity in favor of the enactment shall always exist.
In the case of P. Bhuvaneswaraiah And Ors. vs the State Of Mysore And Ors. on 28 September 19641, It was noted that the doctrine of colorable legislation does not constitute any question of the legislature’s ‘bona fides’ or ‘mala fides.’ The entire doctrine revolves around the question of a legislative body’s authority to enact a specific law. If the legislature has the authority to enact a specific law, the motivation for doing so is irrelevant.
While observing another landmark judgment, The Supreme Court Reportsk. C. … vs The State Of Orissa on 29 May 19532,
It was held “That the question whether a law was colorable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears, on proper, examination, to be a mere pretense or disguise. The whole doctrine of colorable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly.”
We can conclude that the Doctrine of Colourable Legislation creates a pathway solution to delimit the powers of different organs of government. It strictly prohibits crossing such boundaries by keeping a check and balance on their jurisdiction. The accuracy of the law is put into question and whenever any law is founded out of any disguise and in violation of the constitution, then the colorable exercise would be foisted on the legislative authority. This doctrine serves as a fundamental tool of the judiciary in monitoring the legislative powers granted to the Union and State governments, as well as determining the validity of legislation in question or doubt.
- “Explained: The Doctrine of Colourable Legislation”, Lex Forti, 25 November 2020, available at: https://lexforti.com/legal-news/the-doctrine-of-colourable-legislation/
- Srijita Adak, “Doctrine of colourable legislation: an impediment to the legislative authority”, iPleaders Blog, 7 September 2021, available at: https://blog.ipleaders.in/doctrine-of-colourable-legislation-an-impediment-to-the-legislative-authority/
- Amisha Sah, “An Overview Of Doctrine Of Colourable Legislation”, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-7352-an-overview-of-doctrine-of-colourable-legislation.html#:~:text=The%20maxim%20doctrine%20of%20colourable,can’t%20do%20it%20straightforwardly.