Doctrine of Colorable Legislation

The doctrine of colorable legislation is built on the doctrine of separation of powers. The doctrine states that in a federal government, there should be powers separated between the legislature, executive, and judiciary. The primary function of the legislature is to make laws. The executive is the administrative head of the government and the judiciary applies the laws in each case to render natural justice and fairness. This doctrine is implemented to ensure that the liberty of the individuals is always held primary. It ensures the independence of each organ and prevents the legislature from making arbitrary laws.

This is where the doctrine of colorable legislation plays a significant role. While separation of powers is present, through this doctrine the judiciary ensures the legislative competency or in other words ensures that the legislature is held accountable for their actions.

The constitution of India distributes the legislative powers between different bodies within the system. They have to act within the boundaries that have been constructed either by the specific legislative entries or in the form of fundamental rights. The question that arises is whether the legislature has or has not concerning the subject matter of the present statute in dispute breached the limits of its constitutional powers. This transgression could have taken place even on the method of enacting that stature. The transgression could be patent, manifest, or direct or it could be disguised, covert, and indirect.[1] The doctrine of colorable legislation is used in cases where it seemingly looks like the legislated has acted within its boundaries, but in reality, it has breached its boundaries. This doctrine is based on the principle, ‘what cannot be done directly cannot be done indirectly’. To decide whether a certain statute can be legislated directly, it is pertinent to see the legislative powers and the relation between unions and states under part XI of the Indian constitution.

Part XI of the Indian constitution deals with the legislative powers which are distributed between parliament and state legislature. Under this, Article 246 states the subject matters on which the parliament and state legislature have the power to make laws. These subject matters are elucidated in the seventh schedule of the Indian constitution. There are three lists- union, state, and concurrent list. Parliament has the power to make laws concerning the list also known as the union list. The state legislature has the power to make laws on the subject matters mentioned in List II also known as the state list. Both parliament and state legislature have the power to make laws on the subject matters as per list III also known as a concurrent list. Moreover, as per Article 248 of the Indian constitution has exclusive power to make laws on subject matter which have not been enumerated under the concurrent and state list. Thus, to analyze the competency of the law enacted by the parliament of the state legislature it is imperative to see whether the subject matter has been enumerated in their respective lists.

This doctrine has been used by our judicial system to determine the true meaning, purpose, and meaning of the statute. The legislatures that function under a written constitution especially are always restricted to whatever is mentioned in the constitution. When a statute is disputed to be unconstitutional, the court must find whether a colorable device is used and the powers given to the legislature have been breached.[2] Parliamentary draftsmen would naturally shrink from so open a defiance of constitutional requirements.[3] In the case of colorable legislation, it is a very obvious fact the draftsmen of the legislation would not reveal both in the statement of objects or in the provisions of the bill its outline to transgress the boundaries laid down by the Indian constitution. In such cases, the Court should not just look into the language of that particular statute. It needs to go beyond that criterion and inspect the purpose, effect, and operation of the statute. Thus while enquiring into the extent of colorability it is imperative to also inspect every bill, scheme, and act linked to it.

However, there are certain limitations to the doctrine of colorable legislation. Firstly, they do not extend to those legislations which have been made by the subordinates to the legislature. In other words, statutes made through delegated legislation do not fall within the scope of this doctrine. When certain legislations are made with a mala fide intent they cannot be struck down by way of this doctrine for lacking integrity or unreasonableness. The scope of the doctrine extends only till the point of deciding whether the legislature can pass that law.

The basic principle which follows further is if it can pass that particular law, then it can also make the law successful.[4] As mentioned earlier it is significant to understand that the doctrine does not apply in case a breach of boundaries laid down by the Constitution is patent, manifest or direct.

THE DOCTRINE AS THE SUPREME COURT VIEWS IT

As far as this doctrine is concerned the Supreme Court has held that the content and substance of the act is material and not based on the language. If the subject matter is beyond the power of the legislature, no matter in which form it is clothed it cannot be saved from condemnation. The Supreme Court has held when bonafide or mala fides on the part of the legislature is in question, the legislature does not act on extraneous conditions. They always presume constitutionality in favor of the statute.[5] Thus the Court deals only with the question of competency.

The Supreme Court has called such a transgression of power as, “fraud on the constitution”. When the legislature fails to meet the substantive laws in the exercise of its legislative power, it could be unconcealed or concealed. When such a failure is unconcealed, due to non-compliance with the provisions of the Indian constitution, in such a case the statute is held ultra vires. In cases where this non-compliance is concealed, it is called a “judicial scam”.

In short, the parameters that have been laid down by the Supreme Court to determine whether the legislation can be held as colorable are as follows[6]:-

1. The court must look into the effect of the legislature and the object of the legislation which when added is actually the substance of the statute in question.
2. The court should not deal with the question of the motive of the legislation. If the legislature has not transgressed its power, in such cases whatever motive impelled it to act is irrelevant.

CASE LAWS

In the case of R.S Joshi v. Ajit Mills[7], the Supreme Court defined the doctrine as, “In the jurisprudence of power, colorable exercise of or fraud on legislative power or, more frightfully, fraud on the constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is struck on it, and then it is colorable legislation.” In short, the court held that, when there is fraud in legislative power or fraud in the constitutional provisions, it clearly speaks about the incompetency of the legislature to enact such laws and thus in such cases the legislation is said to be colorable.

While many cases under the Supreme Court decisions elaborate on the scope and operation of the doctrine of Colorable Legislation, the only case where a law has been struck down under this doctrine is the State of Bihar V. Kameshwar Singh[8]. In that particular case, the Bihar Land Reforms Act, of 1950 was held to be unconstitutional because when in the face of the legislation it purported to pay compensation however, on substance and reality it failed to do so. The judgment went on to further state that, when the legislature had all the incidental and ancillary powers, it also must make such legislation efficient. Thus, in this case, the doctrine was used to establish legislative accountability.

The Supreme Court in the case of Shri Prithvi Cotton Mills V. Broach Borough Municipality[9], held that one cannot just declare that the court’s decision will not be binding. Such a statement is equal to reversing the decision within the ambit of judicial power and that is something which the legislature does not possess. The Supreme Court while granting legislative competence held that when the premise of the court’s decision is changed by the legislature, then the legislature cannot exercise judicial power. Similarly in the case of Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd.[10], it was held that as per article 141 of the constitution, the decision of the SC is binding on all courts, thus the legislature has no authority whatsoever to say that the law by the court was imprecise, invalid, or ineffective even as a precedent or between the parties.

In the case of State of Tamil Nadu v. M. Rayappa Gounder[11], while the madras government reassessed certain theatre owners who were escaping from the entertainment tax, the Madras High Court held that the Madras Entertainment Tax Act 1939 does not authorize any reassessment. The Supreme Court held that the effect of the provision was to overrule the decision of the Madras High Court and not to change the law retrospectively.

DOCTRINE OF PITH AND SUBSTANCE SIGNIFICANCE

To figure out whether the state legislature or the parliament has gone beyond the powers construed to them under part XI of the constitution one has to find the true nature, character, or in other words the pith and substance of the legislation which is in question. The doctrine is that the used subject present in one list touches another list. In such a conflict the court uses this doctrine to understand the true nature of law. Under this doctrine the subject matter is challenged and not its effect on other fields. The doctrine is used in such situations to ensure that the legislative powers are not circumscribed.

When we apply the doctrine of colorable legislation the objective is to find when they have encroached their powers given by the Constitution. But, if every legislation in dispute is said to be held as invalid only because there has been a transgression of powers, the legislative power becomes restricted. To avoid such a circumstance while viewing the doctrine of colorable legislation, one has to restrict themselves to analyzing the nature, effect, and operation of such legislation. This doctrine was applied by the Supreme Court in the case of the State of Bombay v. F.N. Balsara[12].

Gwyer, C. J. in Subramanyam chttiar v. Muthuswami Goudan elaborated on this doctrine. He said that the doctrine has evolved and that the impugned statute is examined to ascertain its true nature and character. This is done to ascertain whether the statute concerns the matters elucidated on the list.

CONCLUSION

The doctrine plays a very important role in protecting the federal system of government. Furthermore, it goes on to ensure that there remains a balance in the application of separation of powers. The doctrine on one hand ensures that there is no transgression of powers as mentioned in the constitutional provision, and on the other hand, it has to ensure that it focuses only on the substance and not on the motive of the legislation. The doctrine faces a big limitation when it comes to ensuring that legislative powers are neither restricted nor abridged.

There has not been a big deal of usage of the doctrine of colorable legislation in particular. However, the doctrine of pith and substance has been used widely. The courts while applying the doctrine have to ensure that, the legislative competency is questioned and not the intent or motive behind bringing up the law. The court plays a crucial role in these cases because there are not enough provisions to ensure that the legislature is held accountable or responsible for the laws that they pass.

The three major facets that play a huge role in every democracy and federate state are competency, accountability, and transparency. Thus the colorable legislation doctrine not only deals with protecting the separation of powers, but also it is significant in ensuring legislative competency, accountability, and transparency.

 

[1] K.C Gajapati Narayana Deo and Others V. State of Orissa, AIR 1953 Ori 185

[2] Privy council, (1889) A.C., 628(29)

[3] Evatt, J., 61 C. L. R., 735 at p. 785 (27)

[4] Doctrine of Colourable Legislation, July 13, 2020, <http://www.legalservicesindia.com/law/article/1556/10/Doctrine-of-Colourable-Legislation- >

[5] Ram Krishnan Dalmia V. Shri Justice S. R. Tendolkar and Ors., 1958 AIR 538

[6]  Doctrine of Colorable Legislation, 1^st January 2020, <https://www.legalsarcasm.com/legal-notes/doctrine-of-colorable-legislation/ >

[7] AIR 1977 SC 2279

[8] AIR 1952 Pat 417, 1952 21 ITR 382 Patna

[9] 1970 AIR 192, 1970 SCR (1) 358

[10] 1971 AIR 57

[11] AIR 1971 SC 231, (1971) 3 SCC

[12] 1951 AIR 318