This article is written by Sai Shriya Potla, a law student at the Pendekanti Law College affiliated with Osmania University, Hyderabad. This article elaborates on the doctrine of colourable legislation while highlighting the evolution and constitutional provisions of the doctrine of colourable legislation and explaining the limitations of the doctrine of colourable legislation and various case laws.

It has been published by Rachit Garg.

Introduction

Federalism is the basic structure of the Indian Constitution. The sovereign authority derived from the Constitution is distributed between the two levels of government: the centre and the states. This step promotes better administration and includes growth in the nation. At times, one government body attempts to encroach on the jurisdiction of another government body by enacting legislation that is not within their purview of governance or by passing laws that give them authority to enact laws from another’s domain of governance. This defeats the very purpose of federalism, and there is always a constant risk of one government authority becoming more powerful and starting to impose its decisions on another government authority. 

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The doctrine of colourable legislation discourages the misuse of the legislative authority of the government by judicial intervention to maintain the balance of power in the country. The doctrine of colourable legislation is not explicitly mentioned in the Indian Constitution; however, the judiciary has interpreted this doctrine via its judgements to protect the federal nature of our country. Whenever the centre or any state tries to expand its legislative sphere unconstitutionally, the doctrine provides the judiciary with the authority to prevent them from doing so. 

The following article delves into the concept of the doctrine of colourable legislation in detail and further provides comprehensive details of constitutional provisions, significance and limitations of the doctrine of colourable legislation. 

The doctrine of colourable legislation

The doctrine of colourable legislation is a legal principle that aims at the prevention of excessive and unconstitutional use of the legislative authority of the government. The doctrine is derived from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means things that cannot be done directly should not be done indirectly either. The Black’s Law Dictionary defines the word ‘colourable’ as:

  1. Appearing to be true, valid or right.
  2. Intended to deceive; counterfeit.
  3. Appearance, guise or semblance.

In a literal sense, the doctrine of colourable legislation means that the government is enacting legislation under the guise of having authority even though it does not possess any competent authority to do so.

The judiciary has the authority to prevent the government from the abuse of its power. When the government misuses its legislative authority by making laws outside its demarcated jurisdiction, the judiciary has the power to review them and strike them down if they are found unconstitutional. 

The doctrine of colourable legislation is also known as “Fraud on the Constitution” because the legislature of the government authority does not enact laws according to the provisions mentioned in the Constitution. The legislative authority creates a delusion that it is acting in compliance with the constitutional provisions but in reality, it does not. 

The Supreme Court in the case of R. S. Joshi v. Ajit Mills (1977) determined the term colourable exercise of power, fraud on legislative power and fraud on the constitution are similar expressions which mean the legislature is incompetent to enact a particular law. 

According to this doctrine, the legitimacy of legislation is identified depending on the competency of the legislature to enact a particular law, not on the motives or intentions of the legislature.  The judiciary, while determining whether a law is a colourable legislation, does not take into account the intentions of the legislature; it only considers whether the particular legislation is within the jurisdiction of the government authority or not.

Evolution of the doctrine of colourable legislation in India

The doctrine of colourable legislation was introduced in India by the British administration. Though the British practised a unitary form of government in the initial days of their rule, later they shifted to the federal mode of government. During British rule,  power was distributed between the centre and the provincial units. The doctrine of colourable legislation was used to determine the authority of different government bodies in the country and ensure the balance of power between them. This doctrine was adopted by the British government from Canada and Australia. 

Canada: The doctrine of colourable legislation is an important component of the constitution of Canada. The British North America Act, 1867 established a federal government in Canada by incorporating the territories of Nova Scotia and New Brunswick. Section 91 – 95 of the Act deals with the distribution of power among the central government and the provincial units. Later, the Constitution Act, 1982 also had provisions for the distribution of powers among the government bodies. These constitutional provisions led to the development of the doctrine of colourable legislation. The doctrine is used to supervise the legislative authority of the government bodies.

Australia: Australia adopted a federal government with the enactment of the  Commonwealth of the Australia Constitution Act, 1901 by incorporating the territories of New South Wales, Tasmania, Queensland, Victoria, Western Australia and Southern Australia. Australia comprises of two-tier government system- Commonwealth government or Federal government and state governments. Section 51 of the Australian Constitution consists of the legislative powers of the Commonwealth government and the states have the authority to enact laws on unlisted subjects in section 51. These are known as residuary powers. Apart from these the Australian Constitution also comprises a concurrent list where both the Commonwealth government and state government can enact laws. The doctrine of colourable legislation was developed by the judiciary based on these constitutional provisions. The doctrine was used to determine the valid exercise of legislative powers by the government bodies.

Even after independence, the doctrine of colourable legislation remained to be an integral part of the Indian Constitution. The judiciary further developed the doctrine of colourable legislation through its judgements to regulate the legislative authority of the government bodies.

Article 246 of the Indian Constitution

The Indian Constitution does not expressly mention the doctrine of colourable legislation. However, Article 246 and Article 246A outlines the legislative authority of the centre and states and judiciary have the power to declare any legislation unconstitutional if the legislature exceeds its authority.

Article 246 of the Constitution discusses the federal nature of  India. Article 246 distributes the power between the centre and the states and specifies their authority to enact laws on various subjects. The Seventh Schedule divides the legislative authority between the centre and states into three distinct lists in order to prevent them from intruding on each other’s legislative domain. 

The subjects are divided into three lists: 

(1) Union list; 

(2) State list; 

(3) Concurrent list. 

The subjects in each list are carefully divided to avoid conflicts between the centre and states. The Constitution grants complete autonomy to the centre and the states to make legislation within the purview of their jurisdiction to ensure efficient governance.   

Union list

The union list contains matters of national importance, and the central government has the exclusive right to make legislation for the whole country or any region. The centre has the power to make laws regarding the subjects mentioned in the union list. The union list contains 97 subjects such as external security, defence, communication, trade etc.

The central government is entrusted with the responsibility of maintaining external security and internal peace in the country. With respect to this, the union government can raise funds to develop armed forces and make necessary laws on warfare industries for the manufacturing of arms and ammunition. 

The central government has the right to make laws on transportation to improve connectivity between different parts of our country and other nations. They include the creation and management of roads, railways, national waterways, airways, aircraft, ports, and lighthouses for the establishment of transport, infrastructure, and communication both domestically and internationally.

The union government also engages in diplomacy and maintains foreign relations for the nation’s best interest. The union government represents India at international conferences and in foreign countries for conventions and trade negotiations.

Apart from these, the central government has the right to enact laws on currency, coinage, foreign exchange, foreign loans, the Reserve Bank of India, inter-state communications, trade, incorporation, regulation and winding of corporations, banking, stock exchange and futures exchange, patents, copyrights, insurance, trademarks, and inter-state disputes. 

State list

Criminal litigation

The state list contains subjects that are vital for the effective functioning and administration of the state. Every state in India has the exclusive power to make laws pertaining to the subjects in the state list suitable for the respective state. The state list contains 61 subjects. Initially, there were 66 subjects in the state list, but after the 42nd amendment of the Indian Constitution, five subject matters relating to education, forests, protection of wild animals and birds, weights and measures, and administration of justice, including the constitution and organisation of all courts except the Supreme Court and High Courts were transferred to the concurrent list. 

The state government has the power to implement necessary legislation to maintain law and order in their respective states. The state government controls the police forces in the state. The police are entrusted with the maintenance of peace and harmony within the state. The government has the right to enact laws and regulations with regard to state police in compliance with the requisites of the state. 

The state government, in accordance with the socio-economic demands of the state, can facilitate public hospitals, dispensaries, libraries, museums, and provisions for unemployed people.

The municipal corporations, improvement trusts, district boards, mining settlement authorities, and other local authorities are subject to state control to ensure the proper functioning of local self-government or village administration.

Apart from these, the state list also includes prisons, reformatories, pilgrimages, the manufacturing of liquors, burial grounds, agriculture, agricultural research and education, irrigation, land revenue, taxes on agricultural produce, buildings, and the sale or consumption of electricity.

Concurrent list 

The concurrent list contains subjects that are of interest to both the centre and the states. Both the centre and states have exclusive power to enact laws pertaining to the subjects mentioned in this list. However, if both the union and state governments make laws on the same subject, the central government’s law will take precedence. The primary aim of the concurrent list is to promote the diversity of laws, social traditions, and federal experimentation. The concurrent list contains 52 subjects in total.

The subjects of the concurrent list include criminal law and procedure, civil law, preventive detention, marriage and divorce, adoption, will, intestacy and succession, transfer of property, registration of deeds, relief, and residence of people displaced from their original place of residence, drugs and poisons, charitable institutions, religious endowments and institutions, newspapers, books, printing presses, actionable claims, trusts and trustees, bankruptcy and insolvency and contracts including partnership, agency and contract of carriage.

Article 246A of the Indian Constitution

Article 246A was enacted into the Constitution through the One Hundred and First Amendments in 2016. Article 246A confers power to the centre and the states to levy and collect taxes simultaneously. This resulted in the introduction of the Goods and Services Tax (GST) in India. 

In the pre-GST period, the Value Added Tax (VAT) was implemented for the collection of indirect taxes. This system required taxes to be paid at every stage of production, from the manufacturing of raw materials to finished goods. However, this system achieved very little success. The Report of the Task Force on Implementation of the Fiscal Responsibility and Budget Management Act, 2003, recommended a comprehensive GST policy based on the VAT principle with the integration of all state governments.

The GST system was introduced in 2016, and it is a single taxation policy enacted to remove numerous indirect taxes levied by the central and state governments. Article 246A mentions that the Legislature of every state shall have the power to make laws with respect to goods and services taxes imposed by the Union or by such a state. It also states that the central government will have the exclusive power to levy and collect taxes in the course of inter-state trade.

Significance of the doctrine of colourable legislation

  • The doctrine of colourable legislation plays a crucial role in preventing the misuse of the legislative authority of the government through timely judicial intervention.
  • The judiciary, with the assistance of this doctrine, maintains balance in the country, whenever any government authority attempts to become more powerful than the rest in an unauthorised manner.
  • The doctrine of colourable legislation confers the power of the judiciary to check the competency of legislation in accordance with its jurisdiction. The courts also have the power to strike them down if they find them unconstitutional.
  • When the legislature becomes the dominant power, it may impose its decisions on other organs of the government. This becomes a serious threat to the concept of separation of powers. The doctrine of colourable legislation prevents this abuse of authority by a single body.
  • It encourages the legislature to act in a more vigilant manner.
  • It preserves the spirit of democracy by reminding the government of its responsibilities towards the country and promoting the desires and aspirations of the people.

The doctrine of pith and substance

The doctrine of pith and substance aims at determining the true essence of a law. The term “pith” signifies “true nature” or “essence of something” and the term “substance” signifies “the most important part of something.” When the legislature enacts a law by encroaching on the authority of another legislature, such a law is deemed to be void or ultra vires. In such circumstances, the doctrine of pith and substances examines whether there is incidental or significant trespass by the legislature, and if there is only the slightest trespass by the legislature, the doctrine determines such a law to be valid.

The doctrine of colourable legislation aims at the prevention of the excessive use of the legislative authority of the government, while the doctrine of pith and substance deals with the true nature of the law. The doctrine of colourable legislation only examines whether the law is within the legislative sphere of the government and strikes it down as being ultra vires, but the doctrine of pith and substance considers the degree of violation of the legislative powers in the judicial review. 

The doctrine of pith and substance eases the rigid federal structure. The doctrine assists the legislature in the maintenance of its power by not allowing the judiciary to declare a law invalid for the slightest trespass on legislative power.

The doctrine of colourable legislation and the doctrine of pith and substance derive their authority from the Constitution of India to maintain the federal structure of our country and protect the powers of legislative bodies. Whenever the legislature exceeds its authority the courts are at the discretion to apply any one of the doctrine depending on the circumstances of a case. 

In the case of Prafulla Kumar Mukherjee v. The Bank of Commerce (1947), the validity of the Bengal Money-Lenders Act, 1940, was challenged before the Bombay High Court. This Act was introduced to govern money lending, which belongs to the state list; however, some provisions of the Act controlled matters relating to promissory notes, which fall under the union list. It was argued that the Act encroaches on subject matter belonging to the central government. The Court, applying the doctrine of pith and substance, held that it is not possible to make a clear-cut distinction between the powers of legislatures, and the powers are bound to overlap. Thus the Court determined that the Bengal Money-Lending Act should be examined according to its true nature and character rather than merely looking at the legislative capacity of the state. The court held the Act to be valid by applying the concept of pith and substance.

Limitations of the doctrine of colourable legislation

While the doctrine of colourable legislation is considered one of the primary safeguards to prevent the misuse of legislative power by the government, it is also constrained by a few limitations.

Subordinate Legislation

Subordinate legislation is a law passed under the power of existing legislation, not directly by the legislative body of the government. Subordinate legislation is also known as delegated legislation. Since subordinate legislation is enacted by the delegated authority of competent primary legislation, there is always a presumption of the legitimacy of such laws. The burden of proof lies with the person challenging the legality of the law.

The Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958) stated that “there is 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 guarantee”. This decision was upheld in another Supreme Court judgement, Mahant Moti Das v. S.P. Sahi (1959).

Intentions or motives 

The doctrine of colourable legislation merely examines the competency of the legislature to pass a law; the doctrine is not concerned with the mala fide or bona fide intentions and motives of the government to enact the law. The judiciary only reviews legislation on whether it is within the competent jurisdiction or not and fails to examine the bona fide or good intentions of the law. Sometimes, a good law, despite having the potential to serve the interests of the public, gets rejected because it is not within the competent jurisdiction.

Justice B.K. Mukherjea in the judgement of K.C. Gajapati Narayan Deo v. State of Orissa (1954) stated that “The question whether a law was colourable legislation 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 pretence or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly”.

Applies only within Constitutional limit

The doctrine of colourable legislation applies when the legislature exceeds its authority as mentioned in the Constitution. However, the doctrine proves to be ineffective when the legislature is barred by any constitutional limit. The doctrine of colourable legislation is inapplicable where the legislature is not restricted by any limitation.

Landmark case laws 

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952)

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) is a landmark judgement in the doctrine of colourable legislation. 

Facts of the case

After independence, many state governments passed legislation on the abolition of the zamindari system and intermediaries between the cultivators and the state. The Bihar Land Reforms Act, 1950, the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 were enacted in their respective states with a similar view. However, landlords filed a case in the High Courts of their states challenging the legitimacy of the act. The Bihar High Court declared the Bihar Land Reforms Act to be invalid under Article 14 of the Constitution, while the other two acts were held valid and legitimate. This decision was challenged in the Supreme Court. During this period, the Indian Constitution added the Ninth Schedule through the First Constitutional Amendment. The subjects under the Ninth Schedule were provided immunity from judicial review, and the Bihar Land Reforms Act was placed in the Schedule in the same year. Articles 31A and 31B were passed accordingly in this regard. This amendment took away the opportunity of zamindars to attack the legislation on infringement of Part III of the Constitution.

However, the zamindars presented their arguments based on the lack of legislative authority on the principles of compensation for the acquisition of property for public purposes mentioned in the concurrent list. They argued the government committed fraud on the constitution by not complying with the required provisions and offering them less or negligible compensation in comparison to the market price.

The Uttar Pradesh and Madhya Pradesh High Court judgements were also challenged by the aggrieved proprietors in the Supreme Court, stating that some of the estates sought to be acquired by the states of Uttar Pradesh and Madhya Pradesh belonged to former rulers of Indian princely states. They argued that this property was subject to a “Covenant of Merger” between the Government of India and rulers in order for them to merge the property in the states of Uttar Pradesh and Madhya Pradesh. They further argued that “personal rights” of the property were guaranteed to them under the instrument of merger and they cannot be deprived of their rights in accordance with Article 362 of the Constitution. 

Issues

  1. Whether the Bihar Land Reforms Act of 1950 is a colourable legislation
  2. Whether the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 constitutional

Observation

The Supreme Court contended that the acquisition of land by the government from the zamindars is not in accordance with “public purposes” mentioned in entry 42 of the concurrent list. The term public purpose is vaguely defined as anything for the benefit of the public. The Court observed that Article 31(2) of the Constitution states that land can be acquired only for public purposes with adequate compensation to the landlord. Even though Articles 31(4) and 31B debar people from challenging an Act according to Article 31(2), the Court held that the judiciary will be open to review. The Court further stated that the failure to comply with the constitutional provisions may be overt or covert. In converting non-compliance, the legislature pretends to act within its power while not doing so. The Supreme Court held the Act committed fraud on the constitution by not providing adequate compensation.

With the estates of Uttar Pradesh and Madhya Pradesh, the Court observed that there was no contravention of the rights of proprietors because the property was acquired by the government as “private property” and nothing more.

Judgement

The Supreme Court held that the whole Act cannot be determined as invalid. The Court declared Sections 4(b) and 23(f) of the Bihar Land Reforms Act, 1950, to be unconstitutional, while the rest of the Act remains valid. Contentions concerning the Uttar Pradesh and Madhya Pradesh Act were overruled by the Supreme Court

M. R. Balaji v. State of Mysore (1962)

M. R. Balaji v. State of Mysore (1962) is a landmark judgement on the reservation system in India. 

Facts of the case

The state of Mysore passed an order that included all the communities except the Brahmin community within socially and educationally backward classes and reserved 75% of seats in all educational seats. Later, the state passed another order which superseded all the previous orders. Under this order, the state created two categories, i.e., backward classes and more backward classes. 68% of seats were reserved for them, including Scheduled Caste and Scheduled Tribes, for all engineering and medical colleges, leaving only 33% seats for unreserved students. The petitioners argued that the order was fraud on Article 15(4) of the Constitution. 

Issues

  1. Whether the reservation order is within the constitutional purview of Article 15(4)
  2. Whether the 68% of the reservation for the backward classes reasonable?

Observation

The Supreme Court observed that the state is entitled to use caste as the sole basis to determine criteria for reservation in educational institutions. The Court opined that caste is irrelevant to establishing whether a class of citizens is socially and economically backward or not. The Court stated that the reservation made under the order is highly inconsistent and not permitted within the provisions of Article 15(4) of the Constitution.

Judgement

The Supreme Court ruled that the order was a fraud on the powers conferred by Article 15(4) of the Constitution. The Court also ruled that the reservation should not exceed more than 50% in the public interest.

Animal Welfare Board of India v. Union of India (2023)

Animal Welfare Board of India v. Union of India (2023) is a recent Supreme Court judgement on the famous traditional bull race practised in the states of Tamil Nadu, Maharashtra, and Karnataka known as “Jallikattu” and “Bullock Cart Race”.

Facts of the Case

In 2014, the Supreme Court held customary bull sport practised in Tamil Nadu, Maharashtra, and Karnataka to be unconstitutional and held the sport was in violation of the provisions of the Prevention of Cruelty to Animals Act, 1960. The Court further held the Tamil Nadu Regulation of Jallikattu Act, 2009, regulating the sport of Jallikattu, as void. However, an exception was made, allowing training for the bulls to participate in Jallikattu. The Tamil Nadu government passed the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 as an amendment to the Prevention of Cruelty to Animals Act, 1960. The Prevention of Cruelty to Animals (Maharashtra Amendment) Act, 2017, and the Prevention of Cruelty to Animals (Karnataka Second Amendment) Act, 2017 by the respective states were enacted to remain in accordance with the Supreme Court judgement. The petitioners claim that the amendment fails to remove the defects of the Act. The petitioners argued that since the state government lacks the authority to enact legislation through List II of the seventh schedule, they brought enactment through List III of the seventh schedule when they do not possess the authority to pass an amendment through List III as well. 

Issues

  1. Does the judiciary have the authority to invalidate legislation for failure of people to comply with it?
  2. Whether the impugned Acts introduced by the state legislatures colourable legislation?

Observation

The Supreme Court observed that the Amendment Acts brought by the respective state legislatures substantially reduced the pain and cruelty inflicted on the animals in comparison to the pre-amendment period. The Supreme Court further said the judiciary cannot strike down legislation on the assumption of failure to comply with the Act. The Supreme Court stated that the 1960 Act and the amendment deal with the prevention of cruelty to animals mentioned in List III. As there are no other entries in any other lists that deal with this subject, the Court rejected the petitioner’s contention that the state legislature lacks the jurisdiction to pass the Amendment.

Judgement

The Supreme Court held that the Amendment Acts introduced by the states are not a colourable legislation but instead relate to the doctrine of pith and substance in List III of the Seventh Schedule to the Constitution of India. The Court stated that the Amendment Acts minimises cruelty to animals and would not come within the purview of the Prevention of Cruelty to Animals Act, 1960.

Conclusion

The doctrine of colourable legislation aims to prevent the use of the legislative authority of the government for unauthorised purposes. The primary objective of the division of powers is to prevent the concentration of powers under one government authority. Whenever a government authority tries to expand its powers by enacting new laws outside its territory, this situation may pose a serious threat to democracy in the country. The judiciary, by applying the doctrine of colourable legislation, reviews such laws passed by the government and strikes them down if it finds them to be outside the jurisdiction of the legislative authority. 

The doctrine of colourable legislation acts as a shield to the federal nature of our country and prevents despotic rule by judicial review. The doctrine of colourable legislation upholds the spirit of democracy and encourages the leaders to work according to the aims and aspirations of the people rather than their own advantage.

Frequently Asked Questions (FAQs)

What is the objective of the doctrine of colourable legislation?

The doctrine of colourable legislation is a legal principle that aims to prevent the excessive use of legislative power. Whenever the legislature tries to encroach into the powers of another legislature, the doctrine of colourable legislation prevents it by judicial intervention.

How does the doctrine of colourable legislation ensure separation of power in India?

If the legislature becomes powerful, it may influence the decisions of other branches of the government. The judiciary, with the aid of the doctrine of colourable legislation, maintains the balance of power in the country.

What is the difference between the doctrine of colourable legislation and the doctrine of pith and substance?

The doctrine of pith and substance is applied by the judiciary in the determination of the true nature and objective of legislation. While the doctrine of colourable legislation aims at invalidating the laws passed by the legislative body outside their authority.

What is the origin of the doctrine of colourable legislation?

The doctrine of colourable legislation originated from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means things that cannot be done directly should not be done indirectly either.

What are the constitutional provisions from which the doctrine of colourable legislation derived its authority?

Article 246 and Article 246A of the Constitution distribute the power between the centre and states and grant them the authority to legislate on various subjects. The doctrine of colourable legislation emerges from this constitutional provision to prevent the legislature from exceeding its authority.

References

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