Introduction
Doctrine of
Colorable Legislation like any other constitutional law doctrine is a tool
devised and applied by the Supreme Court of India to interpret various
Constitutional Provisions. It is a guiding principle of immense utility while construing
provisions relating to legislative competence.
Before knowing what
this doctrine is and how it is applied in India, let us first understand the
genesis of Doctrine of Colorable Legislation.
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 different components of the State i.e. between the
Legislature, the Executive and the Judiciary. The Primary Function of the
legislature is to make laws. Whenever, Legislature tries to shift this balance
of power towards itself then the Doctrine of Colorable Legislation is
attracted to take care of Legislative Accountability.
Definition
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’ or ‘guise’ 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.
This Doctrine
also traces its origin to a Latin Maxim:
“Quando
aliquid prohibetur ex directo, prohibetur et per obliquum”
This maxim
implies that “when anything is prohibited directly, it is also prohibited
indirectly”. In common parlance, it is meant to be understood as “Whatever
legislature can’t do directly, it can’t do indirectly”.
In our
Constitution, this doctrine is usually applied 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. By applying this
principle the fate of the Impugned Legislation is decided.
Supreme Court
on Colorable Legislation
One of the most
cogent and lucid explanations relating to this doctrine was given in the case
of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa[1]:
“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.
Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis,
nothing but a picturesque and epigrammatic way of expressing the idea of
non-compliance with the terms of the Constitution[2].
Limitations
on the Application of Doctrine of Colorable Legislation
1. The doctrine
has no application where the powers of a Legislature are not fettered by any
Constitutional limitation.
2. The doctrine
is also not applicable to Subordinate Legislation.
3. The doctrine
of colourable 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.
If the
legislature is competent to pass a particular law, the motives which impelled
it to act are really irrelevant. On the other hand, if the legislature
lacks competency, the question of motive does not arise at all. Whether a
statute is constitutional or not is thus always a question of power[3].
4. A logical
corollary of the above-mentioned point is that the Legislature does not act on Extraneous
Considerations[4]. There is always a
Presumption of Constitutionality in favour of the Statute. The principle of
Presumption of Constitutionality was succinctly enunciated by a Constitutional
Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.[5]:
“That there
is always a presumption in favour 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.”
There is a very
famous rule of interpretation as well that explains why the courts strongly
lean against a construction which reduces the statute to a futility. The Latin
Maxim “construction ut res magis valeat quam pereat” implies that
a statute or any enacting provision therein must be so construed as to make it
effective and operative. The courts prefer construction which keeps the statute
within the competence of the legislature[6].
5. When a
Legislature has the Power to make Law with respect to a particular subject, it
also has all the ancillary and incidental power to make that law an effective
one.[7]
6. 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.[8]
[1] AIR
1953 SC 375.
[2] The
State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.
[3] K.C.
Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375.
[4] Mohan
Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC
2042.
[5] AIR
1958 SC 538.
[6] CIT
v. Teja Singh, AIR 1959 SC 352.
[7] I.N.
Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650, [1976] 3 SCR 237.
[8] The
State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.
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