The doctrine of Colorable Legislation: Indian Constitution

Doctrine of colourable legislation basically states - when anything is prohibited directly, it is also prohibited indirectly. This Doctrine also traces its origin to a Latin Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliquum.” This doctrine is used to make sure that loopholes are not found in the wordings of law to commit the crime that was meant to be prohibited. Read along to know how this doctrine has been used in various case laws.

The doctrine of colourable legislation basically states – when anything is prohibited directly, it is also prohibited indirectly. This Doctrine also traces its origin to a Latin Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliquum.” It depicts the notion that legislation cannot be used under ‘colour’ or ‘guise’ of power which was conferred for one purpose and use it for some other purpose which is otherwise not valid. The doctrine of Colourable Legislation is a limitation of the lawmaking power of the Parliament. It is a tool devised and applied by the Supreme Court to interpret Constitutional provisions to avoid any unjust or fraudulent use of Indian laws. It is a guiding principle while interpreting the legislative competence. It is the discretionary power of the Court to decide whether the legislation is within its assigned jurisdiction and not encroaching on a forbidden field.

To determine whether legislation is a colourable legislation, one has to find out the true nature and character or pith and substance of the legislation[1]. Court must look into the substance of the impugned law, despite the disguised form or label under which the legislature has structured it[2]. To determine the substance of enactments, court examines two things i.e. effect of legislature and object & purpose of the act. However, the Doctrine of Colourable Legislation does not deal with motive of act; it is the question of power and competence of the legislature to enact the said impugned law. Bonafide or malafide intention of the legislators is irrelevant in this subject matter[3].

Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine of Separation of Power. Separation of Power mandates that a balance of power is to be struck between the three branches of the Government i.e. the Legislature, the Executive and the Judiciary. The primary function of the legislature is to make laws and when the legislature tries to over-step this balance of power, the Doctrine of Colorable Legislation is attracted to take care of Legislative Accountability. Parliament and State legislatures are given legislative powers under Article 246 of Constitution of India that describes the subject matter of laws made by the Parliament and by the Legislature of States. Article 246 is read with respect to Lists I (Union List), II (State List) and III (Concurrent List) in the Seventh Schedule. Legislatures have plenty but restrictive powers and it cannot contravene their field of competency; and this violation is also known as ‘fraud of the Constitution[4]’.

There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that an act is not within the competence of the legislature or that it has transgressed other constitutional mandates, is always on the person who challenges its authority.

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In the case of State Of Bihar v. Kameshwar Singh[5], 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. Similarly, in the case of“ K T Moopil Nair v. State of Kerala[6]”, the state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many times the annual income that the person was earning from the land. The Supreme Court held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person’s property was being confiscated. Also, in the case of “Balaji v. State of Mysore[7], Supreme Court held that the order reserving 68% of the seats for students belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).

‘Colourable’ is not tainted with bad faith or evil motive; it is not pejorative or crooked. Conceptually, ‘colourability’ is bound with incompetency. ‘Colour’ is an appearance, semblance or simulacrum, as distinguished from that which is real…a deceptive appearance…a lack of reality. A thing is colorable which is, in appearance only and not in reality, what it purports to be[8]. Therefore, the underlying idea of the Doctrine of Colourable Legislation is that a legislature while passing a statute is obligated to act within the limits of its powers, however, if the legislature in substance and in reality, transgressed these powers, the transgression being veiled or coloured by outward show but on proper examination, seems out to be mere a pretense or disguise. In those cases, the legislation in question will be held invalid. The legislature can only make laws that are within its legislative competency. The legislative field is restricted by the scheme of distribution of powers[9] and violating this restriction under any cover would lead to ‘fraud of constitution’. The legislature cannot overstep this field of competency, directly or indirectly. It is the court’s responsibility to ascertain whether a law which though in forms appears to be within its sphere, in effect or substance, reaches beyond it.

Also read Analysis of Doctrine of Indoor Management

[1]Ashok Kumar v. Union of India 1991 3 SCC 498

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[2] KC Gajapati Narayan Deo v. State of Orissa, 1954 SCR 1: 20 Cut LT 1: AIR 1953 SC 375

[3] State of Kerala v. PUCL, 2009 8 SCC 46, Dharma Dutt v. UoI 2004 1 SCC 712

[4]K.C. Gajapati Narayana Deo And other v. State Of Orissa

[5]1952 1 SCR 889

[6]AIR 1961

[7]AIR 1963

[8] STO v. Ajit Mills Ltd (1977) 4 SCC 98: AIR 1977 SC 2279

[9] Gullapalli Nageshwar Rao v. State Road Transport Corporation, AIR 1959 S.C. 308