SUBJECT: INTERPRETATION OF STATUTES

TOPIC: DOCTRINE OF COLORABLE LEGISLATION

Introduction

India has a federal form of government and has been a united country for over seven decades
with power being divided between the Centre and the States on the account of federal structure
of governance. Federal form of government has two or more levels of government. Each level of
government has its own jurisdiction (area of control). The jurisdiction of the respective levels of
government is specified in the Constitution. The main feature of federalism is the segregation of
power between the Centre and the states. The fundamental provisions of the Constitution cannot
be unilaterally changed by one level of government. Federal system has the objective to
safeguard and promote unity and accommodate regional diversity. 

There was consensus on power sharing even before independence. Leaders were aware of the
regional and linguistic diversity. The Constituent Assembly decided to form a government that
would be based on the principles of unity and cooperation between the Centre and the states
which was to have constitutional status and a clearly identified area of activity.. However, if a
legislative body isn’t allowed to make laws in a particular area and does so anyway indirectly
under the grab of another legislation, the doctrine of colorable legislation comes into play. The
doctrine of colorable legislation is applied to see whether they are competent to enact the specific
law or not. Through this article the author seeks to answer the question whether this doctrine
creates an impediment to the legislative authority or not.
Colorable legislation

Separation of powers means dividing or sharing of powers. In order to prevent the misuse of
power by anyone organ of the government, the Constitution says that each of these organs should
exercise different powers. This develops a system of checks and balances. The Constitution has
divided powers between the Centre and the states with their particular subject matters. But
sometimes, the legislative body enacts legislation which falls outside its area of competence.
This means that it has transgressed  its powers and has indirectly done something which could
not have been done directly.This is called colorable exercise of legislative power or indirectly
making laws when prohibited from doing so directly. So, to check the transgression of legislative
authorities, the doctrine of colorable legislation came into existence. 

Suppose you have a fruit garden and beside that there is a playground. There are truants playing
in the playground and every time they throw their ball into your garden and come to take it back,
they take some fruits from there as well. But they escape by saying that they had only come to
collect the ball. Here, the truants seem to engage in one act under the garb of another as
collecting their own balls from the premises is permissible and cannot be prohibited. The
colorable legislation also deals with such questions wherein one law is supposedly passed under
the garb of another. Colorable legislation comes from a legal maxim- “Quando aliquid prohibetur
ex directo, prohibetur et per obliquum” which means which is prohibited directly is also
prohibited indirectly. It means when a legislature does not have the power to make laws on a
particular subject directly, it cannot make laws on it indirectly. Colorable legislation is one of the
doctrines under the Indian Constitution. It basically means coloured legislation which is not its
true colour. So, whenever the Union or state encroaches their respective legislative competence
and makes such laws, colorable legislation comes into the picture to determine legislative
accountability of that law. 

Historical Background
 The development of the doctrine of colorable legislation traces back to the British time frame
when the self-government had expanded its existence in significant pieces of the British Empire
and the Commonwealth. The subjects of the legislature then, at that point were distributed
between the Central and Provincial units, and to keep a check of the powers conceded to these
units, any establishment was tried against the precept of the colorable legislature. From that
point, the doctrine discovered its approach to India that utilized the Canadian and Australian
legitimate points of reference to take on the standard of this doctrine.
 
 In India, the power was given to the Judiciary to apply this doctrine while at the same time
settling on the legislative ability of the Union and state governing bodies. The statement of Jus
Alladi Krishnaswami Ayyar on the precept of colorable legislature given in the Constituent
gathering is as per the following: It is an accepted principle of Constitutional Law that when a
Legislature, be it the Parliament at the Centre or a Provincial Legislature, is invested with a
power to pass a law regarding a particular subject matter under the provisions of the
Constitution, it is not for the Court to sit in judgment over the Act of the legislature of course, if
the legislature is a colorable device, a contrivance to outstep the limits of the legislative power or
to use the language of private law, is a fraudulent exercise of the power, the Court may
pronounce the legislation to be invalid or ultra vires.
 
 Indeed, even Jawaharlal Nehru, while maintaining administrative incomparability, confined its
absolute power and said: Parliament fixes either the compensation itself or the principles
governing that compensation, and they should not be challenged except for one reason, where
there has been a gross abuse of the law, where there has been a fraud on the Constitution.

The relevance of the Doctrine of Colorable Legislation

Article 246 of the Indian Constitution has separate subjects for law-making in three lists under
VII Schedule. That is, it has segregated numerous subject matters, each subject matter is
associated with either State, Centre or Both.
For example: If in Union list, use of army has been bestowed upon the Central Government, then
State government cannot claim upon such rights.

1. Lists
Followings are the lists under Schedule VII of Indian Constitution, through which Centre, State
or both can legislate upon any subject matter:
1. Union List (List I)
2. State List (List II)
3. Concurrent List (List III)
2. A question
If a subject matter is in the State List, then Union cannot legislate upon such matter; and if a
subject matter is in the Union List, then State cannot legislate upon such matter.

But what if, incompetent legislature tries to legislate upon a subject matter out of its jurisdiction?
Or, What if, to do so, it tries to incorporate a law, which has a guise of a different colour, but the
main intention is to legislate upon the subject matter, which is outside of its jurisdiction?

3. Role
This is where the Doctrine of Colorable Legislation comes into the picture.

If the legislature tries to legislate upon such subject matter, which is outside the scope of its
power, and it does so indirectly so that it does not look like that it has legislated upon a law
outside of its scope; then such instance is called Colorable Legislation.

In such a situation, Constitutional Courts like the Supreme Court or High Court can invalidate
such law by the usage of this doctrine. (Doctrine of Colorable Legislation)

Example:  Under Union List, Entry 2A, deployment of armed forces come under the purview of
Central Government. State Government cannot legislate upon such subject matter. In-State List,
Entry 1, makes the ‘public order’ aspect under the State List. Now State cannot make a law for
public order, which involves deployment of armed forces. It will become a Colorable
Legislation. In such a situation, Constitutional Court like Supreme Court or High Court; by
virtue of Doctrine of Colorable legislation, will invalidate such law.

Limitations on the Doctrine of Colorable Legislation

This Doctrine will not work on such instances, where Legislature has no Constitutional
Limitation.
 1. It is not applicable to Subordinate Legislation
2. Not concerned if the Law is relevant or irrelevant
3. The presumption is always in the favour of Constitutionality of Law and the burden to
prove is upon the Petitioner.

Division of legislative power between the Centre and states 

Article 246 of the Indian Constitution is about subject matter legislation referring to who has
power with regards to which subject matter to make laws. We know that the power has been
distributed under three lists. The powers that Centre and States have been categorised by the
7th schedule under 3 lists- Union list (List I), State list (List II), Concurrent list (List III) which is
mentioned under Article 246 of the Constitution. The Union list incorporates areas which are of
national importance like defence, foreign affairs, currency, atomic energy and so forth. It has a
total of 97 items on which the Parliament has exclusive right to make laws. Similarly, those
items are covered in State list which are of local importance like trade, agriculture, police etc.
There are a total of 61 items on which the State has exclusive power to make laws. Concurrent
list contains 52 items like education, adulteration, adoption etc. concerning the Union and State
both and pertaining to which both can make laws. Another set of powers is residuary powers
which include all other matters not mentioned in any of the lists like cyber laws. The States and
Union are both required to operate within their respective legislative competence. 

If the legislature makes law in colour or under guise on a subject without having required
competency to make laws on that particular subject then the Supreme Court can invalidate the
entire law. Colorable legislation comes into question when there is a question of competency of a
particular legislation to enact a particular law. It challenges the accuracy of an enacted law with
regards to the body that passed the law and analyzes whether the legislative body has the power
to make laws on that subject or not. In case the legislature is not competent on the said subject,
then the law is said to be ultra vires. When a legislature makes a law which appears to be within
its authority but in reality, it is not, then the law would not have any validity. Even though a
colour is given to the law for bringing it under competency it would be declared as void.
Colorable legislation emerges whenever the legislative bodies had no power to create laws on an
item because either it was not included in the list as per Schedule 7 or for the limitations of Part
III of the Constitution or any other provision of the Constitution. When the legislature indirectly
disobeys the terms of the Constitution and claims any Act to be within its power then it is a fraud
on the Constitution.

Concerns and limitations on the application of the doctrine of colorable legislation

The doctrine does not apply to subordinate legislation. It is based only on the question of
competency of a particular legislative body to enact a particular law. The presumption is always
in favour of the constitutionality of the law and the burden is on the person who wants to show
that there has been a clear violation of constitutional principles. Whoever is taking any new law
to the court and claiming that to be a colorable legislation, he has to prove how the law is a
colorable legislation. 

It has no application where there is no constitutional limitation and where powers of a legislature
are not bound by any limitation. For example, there will be no application of colorable
legislation if such power works only according to the Constitution. The legislation is not
actionable for extraneous consideration. The doctrine is not related to bona fide or mala fide
intention of the legislature. It only sees whether the enacted law is under the competency of the
legislature or not.

It is not concerned about whether the law is relevant or irrelevant. If there is an absence of
competency, then the relevance of motive is dead. Thus, the constitutionality of the statute is
completely a question of legislative competency.

Case laws 

 In the case of Ram Krishna Dalmia v. S.R. Tendolkar, the petitioner had
challenged Section 3 of Commission of Enquiry Act,1952 and the notification under
which an enquiry commission was set up by the Central Government under S.R.
Tendolkar was on the ground that it was a denial of equality. Inquiry commission was
appointed under the Act against the company of the petitioner. But Supreme Court
held that the notification and the Act were valid as they were only for enquiry and do
not impose dictatorial possession of the government and the petitioner could not show
 discrimination. It also held that the burden is on the person who wants to show that
there has been a clear violation of constitutional principles. It is an important case of
reasonable classification under Article 14. As not only a law has to be reasonable but
its application must also provide equal protection of laws, it did not come in the ambit
of colorable legislation.

 In K.C. Gajapati Narayan Deo v. State of Orissa, the constitutional validity of Orissa

Agricultural Income Tax (Amendment) Act,1950 was challenged on the ground that it
is a colorable piece of legislation. The real object of which is to reduce the net income
of intermediaries, so that the compensation paid under the Orissa Estate Abolition Act,
1952 might be kept down to a low figure. The court held that 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.
This Act falls within the ambit of the state legislature as Agriculture is the matter of
State List and reduction of compensation is just another facet of the Act. So, it is not
colorable legislation and not invalid.

 In the case of R.S. Joshi v. Ajit Mills, the respondent was not enlisted as a dealer of Sale
Tax, which was gathered from different clients, and this adds up to infringement of
Section 46 and Section 37(1) of Sales Tax Act, 1955. The High Court struck down
Section 37(1) of the Act. The question was, if any tax has been collected wrongfully
by a taxable person from his customer, then whether the amount of tax should be paid
to the government or not and also whether it will be lawful to retain the money when it
is known that the amount is not a tax or not. It was held that the Section 37(1) of the
Act is valid and the law is the same for both the taxpayer and tax administrator and if
the tax cannot be levied by the law, then it is not leviable by the government as well. If
the tax is not lawful then its collection cannot be lawful. Thus, colorable legislation
was applied in this case.

 In State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was enacted to
remove the landlord custom from the state. The State gave half of the arrears of rent
due as compensation to the landlord. The compensation for property acquired comes
under Concurrent List’s Entry 42. So, here it was to be determined whether the Act is
 for a public purpose or not. The Supreme Court held that the Act instead of
determining the compensation, indirectly removes the petitioner from his property
without any compensation. In reality the Act purported to lay down a principle for
determining compensation and indirectly deprived the petitioner of claiming
compensation. Thus, the Act was colorable legislation and was held invalid. 

 In the case of K.T. Moopil Nair v. State of Kerala, the petitioner was the owner of a
25,000-acre forest land. Due to the Preservation of Private Forest Act,1949 the yearly
income of petitioners was only 3,100 Rs per year. Then the Travancore-Cochin Land
Tax Act, 1955 came into existence and Section 4 of the Act imposed yearly tax
liability of Rs. 2 per acre and as a result, the petitioner had to give a tax of Rs. 50,000
per year. Also, Section 7 exempted 78 types of land from the operation of this Act after
notification. Then through an amendment Section 5A came which was the Provisional
Assessment of the basic tax in respect of land which had not been surveyed and no
time for the conduct of the survey was fixed. In this case, tax liability was greater than
the petitioner’s income. It held that Section 4 and Section 7 of the Act violated Articles
14 and 19(1)(f) of the Indian Constitution. The Travancore-Cochin Land Tax Act,1955
was held to be invalid on the ground that the Act apparently purported to be a Taxing
Act but in reality, it was not Taxing Act but was confiscatory in nature. 

 In the case of M.R. Balaji v. The state of Mysore, an order of the Mysore Government
was challenged under Article 15(4) for reserving seats for admission to the State
medical and engineering colleges. The state issued an order that all the communities
except  the Brahmin community, fell within the classes of educationally and socially
backward classes and scheduled castes and scheduled tribes and 75% seats were
reserved for them. On July 31, 1962 the State of Mysore passed another order which
superseded all the previous orders and left only 32% seats for the merit pool. The
petitioner said that the classification made by the state was irrational and reservation of
68% was a fraud on the Article 15(4) of the Constitution. The question was whether
Article 15(4) gives constitutional power to the States to pass such reservation power or
not. The court held that the reservation is a fraud on the constitutional power conferred
on the state by Article 15(4).
In view of these cases, it can be summarised that if a legislative body has the competence to
make a law, it also has the power to make ancillary laws to ensure that the law it made is
effective as long as such ancillary laws aren’t a colorable exercise of power.

The Doctrine of Colorable Legislation in Summary

 It is based upon the doctrine of power separation. Separation of power mandates to strike
power of balance between different state components.

 It is based on the maxim that “what cannot be done directly, cannot also be done
indirectly”.

 This doctrine of colorable legislation is applied when a Legislature does not have the
right to make law upon a particular subject but indirectly makes one.

 The Court has laid down certain tests for discovering whether any particular Act
constitutes colorable legislation.
(a) The court must not look into its form or the label but the substance of the law which the
legislature has given it.

(b) The court must look at the object as well as the effect of the law.

(c) If the legislature proceeds under a legislative plan the court must read all the statutes
constituting that plan and determine the combined effect.

Conclusion

Colorable legislation suggests an encroachment on the legislative power. The doctrine of

colorable legislation strictly prohibits doing indirect things when it is not allowed to do so
directly. It tests whether the legislature has enacted a law as per its authorised competency or not.
So, wherever there is a restriction to make laws, the legislature has to follow the same otherwise
it would be declared as ultra vires of legislative power. If any law is made out of any guise, then
the colorable exercise would be imposed on legislative authority.
Legislative authority is the body which legislates laws. They are elected by the people and work
on behalf of the people. The doctrine of colorable legislation acts like a check on them and if it
finds incompetency then the law becomes invalid without there arising a need to determine its
necessity and requirements. It only checks the competency of the law-making body and restricts
overstretching power. As this doctrine doesn’t check whether the law is mala-fide or bona-fide
and only examines the competency of its legislative authority, it becomes an impediment to the
functions of legislative authority.

References

 https://lawcorner.in/doctrine-of-colorable-legislation/www.lawteacher.net

 http://www.legalservicesindia.com/law/article/1556/10/Doctrine-of-Colorable-

Legislation-

 https://www.desikanoon.co.in/2014/05/doctrine-of-colorable-legislation-india.

 https://www.legalbites.in/doctrine-of-colorable-legislation/

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