Doctrine of colourable legislation
This author would like to commence by citing opinion on Article 370 of the Constitution of India in which except clause(1) the other clauses became inoperative of article 370 of the Indian constitution. This Amendment was made possible by presidential order, by article 368, but only with the states' consent. The legality of the move was examined by the SC, following "principles of federalism", one of the basic structures of the Indian Constitution. The legislative competence of this action was tested against the "Doctrine of Colourable legislation".
But what is "Doctrine of Colourable legislation". This doctrine is based upon the Latin saying “Quandoaliquidprohibetur ex directo, prohibetur et per obliquum”, which means “things that cannot be done directly, cannot be done indirectly ”. It is also based on the principle of separation of powers. Separation of powers to strike the power of equilibrium between different state components. In India, the doctrine of colourable legislation limits the legislative power of the legislature. The principle applies whenever the law wants to do it indirectly, which it cannot directly do. In the parliamentary and state legislatures of India, legislative powers are delegated by Article 246 and allotted in the Seventh Schedule I, II and III of the Indian Constitution.
Parliament has the power to make laws on any matter of List II, and both Parliament and state legislatures have the power to make laws on any matter in List III, and the residual power of regulation is vested with Parliament under Article 248 and Article 97, List I. It is the case of how legislative power should be exercised between the Center and the States, or it depends only on the relationship between them, to make some law or the validity of that rule. The key point is that a government with punitive authority cannot invade the field of competence. This is called the "constitution scam".
For a better understanding of colourable legislation let us dive into the case of K.C. Gajapati Narayan Deo v. The State of Orissa, a decision which has been considered as settling the law on the subject. In the case the court stated :
“ In the case, the court stated “ If the constitution of a nation distributes legislative powers amongst many bodies, which should act as marked by the constitution in particular legislative entries in their respective territories, or if there are limitations of legislative authority in the form of fundamental rights, then a query arises as to whether or not the Legislature in a specific case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the bounds of its constitutional powers. Such modifications can be patented, disclosed or perceptible, however, will also be disguised, covert or indirect, or it is for the latter class of cases that the expression colourable legislation has been carried out in judicial pronouncements.”
Further, the court weened
“ The view expressed by the expression is that, although clearly, in passing a statute the legislature has to act within the limits of its powers, yet in substance and fact, these powers have been transferred, which is reasonable. Replaces the crime that appears on examination. , Only to show off or disguise.”
The gist of expression is that only the substance of enactment is physical and not just its form. If the subject matter of the Act is not within the domain of the legislature, then the law made under the guise of that form cannot save it from censure. The legislature cannot eliminate constitutional justification by applying it in indirect ways to do so, otherwise, it stands in violation of the constitutional powers granted to them.
Some Cases related to the doctrine of colourable legislation
In the case of State of Tamil Nadu vs M. Rayappa Gounder the Government of Madras. Acted to reassure some theatre owners caught for avoiding entertainment tax. When the matter reached the High Court, it was decided that the related law Madras Entertainment Tax 1939 did not authorize the government to re-evaluate and the Act was repealed. The state government filed an appeal before the Supreme Court in which the court stated that the effect of this provision was to overturn the HC decision and did not mean that the law is retroactively changed and also in the case Kameshwar Singh vs State of Bihar,
where stature is expressly declared invalid on the ground of being colourable legislation. The petitioner, in this case, challenged the validity of the Bihar Land Reforms Act 1950 on the ground that the act was intended to uphold the principle of compensation, but in fact, it did not lay down any such principle. This was alleged as an implication of denying the petition of their right to compensation. The Court also upheld the act's unconstitutionality.
Everything has certain limitations i.e. nothing is perfect. Same is for this doctrine here are some limitations like - It is not applicable in cases where the power of the legislature is not limited by constitutional provisions. It does not extend to matters of delegated legislation. The intent of the legislature while passing an act is irrelevant in deciding its validity. There will always be an inference of constitutional validity in favour of enactments.
As a conclusion, it has been observed that the doctrine of colourable legislation may tend to establish legislative accountability. Therefore, the colourable law is needed to fix legislative accountability in the context of some amendments to the legislative system.
Article-97, 246, 248, 368, 370 -http://legislative.gov.in/constitution-of-india
Definition of Doctrine of Colourable legislation- https://thewire.in/law/supreme-court-article-370-doctrine-of-colourable-legislation
K.C. Gajapati Narayana Deo vs The State of Orissa- http://www.thelaws.com/Encyclopedia/Browse/Case?CaseId=003591170000
Colourable legislation in India -https://www.lawteacher.net/free-law-essays/constitutional-law/doctrine-of-colourable-legislation-law-essays.php
K.C. Gajapati Narayana Deo vs The State of Orissa- AIR 1953 Ori 185
State of Tamil Nadu v. M. RayappaGounder - AIR 1971 SC 231, (1971) 3 SCC 1
Kameshwar Singh vs State of Bihar - 1952 1 SCR 889