An Overview of Doctrine of Colourable Legislation
Share on:
Indian Constitution is federal in nature which means powers are divided among the Centre and State. Their powers are clearly defined in the Constitution. Federalism is a part of the basic structure of the Constitution of India that visualizes an outline of governmental functions and powers between different constituent units of the country. It cannot be destroyed or altered via constitutional amendments without undergoing judicial review by the Supreme Court. The federal form of government has two or more levels of government with their own jurisdiction. The primary function of federalism is to segregate powers between the Centre and States. Despite this, there are certain situations where the legislative body makes legislation out of the area of competence which means it transgressed its powers. In this context, the doctrine of colourable legislation came into existence to check the transgression of legislative authorities. The doctrine of colourable legislation is also known as a fraud on the Constitution. Colourable Legislation is the doctrine which is based on the Latin maxim ‘Quando aliquid prohibetur ex directo, prohibetur et per obliquum’ meaning ‘What cannot be done directly, should also not be done indirectly.’ It can also be determined as anything that is prohibited directly is also prohibited indirectly. This means when a legislature does not have the authority or power to make laws on a particular task or subject directly then the same cannot be done indirectly. It helps in preventing the legislature from performing anything that is forbidden to be done either secretly or indirectly. In short, the doctrine of colourable legislation is defined to limit the ability of the legislature to make laws as it ensures whether one (Centre or State) is qualified to implement a specific law or not.
Division of Legislative Power
Subject matter legislation is defined under Article 246 of the Indian Constitution which refers to who has the power or authority to make laws regarding a particular subject matter. The power is distributed into three lists. The powers or functions of the State and Centre are categorized by the 7th schedule under three lists, Union List (List I), State List (List II), and Concurrent List (List III), mentioned in the Article 246 of the Constitution of India.
- Union list (List I): It comprises a total of 97 items on which the Parliament has sole authority to make a law or pass legislation. This list deals with the areas of National Importance such as atomic energy, currency, defence, international affairs, etc.
- State list (List II)– It has a total of 61 items, that are of local importance such as agriculture, police, trade, law enforcement, etc., on which the State has sole legislative power.
- Concurrent List (List III): It has a total of 52 items on which both Union and State can create legislation. This list includes subject matter related to adoption, education, adulteration, and others.
Apart from all these, there is another set of power that is known as residuary power and includes all other matters not mentioned in the aforementioned three lists including cyber laws. In order to ensure the smooth functioning of the legislation, there is a need for both the Union and State to operate within their respective legislative competence. In case, the legislature creates law on a subject matter without having required competency to make law on such a subject matter then the Supreme Court has the power to invalidate the entire law. When there is a question of legislative competence to enact a particular law then Colourable legislation is addressed. It challenges the overall accuracy of the law in association with the body that passes the law. Moreover, colourable legislation also analyzes whether the power is provided to the legislative body to make law on that particular subject matter. In other words, the doctrine of Colourable legislation is not related to the mala fide or bona fide intention of the legislature but ensures whether the enacted law is under legislative competence or not. As mentioned earlier, in such a situation where a law is made for a subject matter by legislation that does not have the competency to do so in that particular subject matter then the Supreme Court can invalidate the law using the doctrine of colourable legislation. Some of the important judgments given by the Supreme Court regarding the same are illustrated in the following section.
Important Supreme Court judgments related to Colourable Legislation
Issue: Constitutional validity of three state enactments, The Bihar Land Reforms Act, 1950, The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, were challenged in this case. The common motive of these Acts was to ‘abolish Zamindaris and other proprietary estates and tenures in the three States to eliminate the intermediaries by means of compulsory acquisition of their rights and interests, and to bring the raiyats and other occupants of lands in those areas into direct relation with the Government.’ The appeal was made to Supreme Court after the High Court held that the defined Act was unconstitutional.
Supreme Court Held: The Supreme Court held that reimbursement for land was a fundamental right under Article 31. There was statutory legitimacy of the Bihar Land Reforms Act, 1950 but two Sections 4(b) and 23(f) were held to be discriminatory. The bench ordered, “Some provisions of the Act may be harsh and bad against the Zamindars but that does not render the whole Act a fraud on the Constitution.”
Issue: In this case, the constitutional validity of the Orissa Agricultural Income Tax (Amendment) Act, 1950 was challenged based on the fact that it is a colourable piece of legislation. The aim of the act is to abolish all zamindary and other proprietary estates and interests in the State of Orissa and after eliminating all the intermediaries to bring the ryots or the actual occupants of the lands in direct contact with the State Government. The appellant mentioned that the main objective of this amendment was nothing else but a means of effecting a drastic reduction in the income of the intermediaries, so that the compensation payable may be reduced almost to nothing.
Supreme Court Held: The bench stated that the Act falls under the scope of the state subject therefore it is not a colourable piece of legislation. It also highlighted that agriculture income is a state subject and the same has the power to enact the law. The top Court further mentioned that reducing the compensation is another part and the appeals were dismissed.
Issue: The issue in this case was in context with the order passed by the Mysore Government regarding the advancement of its socially and educationally backward classes of citizens under Article 15(4) of the Constitution. In context with the order of the Government, 62% of the seats were reserved in state medical and engineering colleges whereas 32% of seats were reserved for the merit pool.
Supreme Court Held: The bench passed the order that the defined reservation is a fraud on the Constitutional power conferred on the State by Article 15(4) of the Indian Constitution.
Issue: The Constitutionality of laws allowing Jallikattu, Kambala, and Bullock cart racing practices in Tamil Nadu and Maharashtra were challenged. One of the questions answered in this case was “Is it colourable legislation that does not relate to any Entry in the State List or Entry 17 of the Concurrent List?”
Supreme Court Held: The bench stated that the Amendment Acts were not a piece of colourable legislation. The Supreme Court said, “These are not cases of colourable legislation but we do not consider it necessary to refer to all these judgments individually as we have come to this conclusion after analyzing various statutory instruments covering the field.”
Conclusion
Colourable Legislation indicates that when something is not done directly then it should not be done indirectly. It is an encroachment on the legislative power; therefore, if there is a restriction to make law then the legislature should follow the same. There are certain limitations too in relation to the doctrine of colourable legislation such as it is not applicable to Legislature having no Constitutional limitation, not applicable on Subordinate legislation, and Colourable legislation does not concern whether the law is bona fide (relevant) or mela ride (irrelevant). Similar to this doctrine, the doctrine of Pith and Substance is applied when a legislature interferes with or challenges another legislature. So we can say that the doctrine of colourable legislation keeps a check on the division of power between two units of Legislature.
