DOCTRINE OF COLOURABLE LEGISLATION

This Article written by Varri Rohini of BA.LLB 8^th Semester of Sri Padmavati mahila Visvavidyalayam, Tirupati, an intern under Legal Vidhiya

ABSTRACT

The doctrine of colourable legislation is a principle in constitutional law that ensures that legislative bodies do not exceed their constitutional powers by disguising an unconstitutional act as something within their authority. The essence of the doctrine is captured by the maxim, “What cannot be done directly, cannot be done indirectly.” If a legislature enacts a law that appears to fall within its powers but, in substance and effect, encroaches upon the jurisdiction of  another legislative body, the law may be declared invalid.

The doctrine is rooted in the principle of federalism and the distribution of legislative powers under a constitution. It aims to uphold the balance of power between central and state governments (or equivalent authorities) and prevent legislative overreach. To determine if legislation is colourable, judges examine its genuine nature, intent, and consequences. If the law is found to be a mere facade to achieve an unconstitutional goal, it is struck down.

KEYWORDS

Doctrine, colourable legislation, Constitution of India, Legislative bodies, Federalism, Central government, State government, Legislative powers.

INTRODUCTION

The doctrine of colourable legislation is a principle in constitutional law that deals with the limit of legislative powers under a federal structure. It is based on the idea that while legislatures have the power to make laws within their allotted fields, they cannot indirectly achieve something that they are prohibited from doing directly.[1]   The  doctrine of colourable legislation is a crucial concept in constitutional law, especially in federal systems such as India, where legislative authority is distributed among various levels of government. This principle is founded on the notion that a legislature cannot accomplish indirectly what it is prohibited from doing directly. It serves as a mechanism to ensure that legislative bodies operate within their constitutionally prescribed boundaries and refrain from infringing upon the powers allocated to other legislative entities.

The essence of this doctrine lies in scrutinizing the substance of a law rather than its form. This implies that even if a law superficially appears to fall within a legislative body’s competence, its true intent and impact are examined to determine whether it exceeds the legislature’s authority. Thus, the doctrine acts as a safeguard against the abuse of legislative power by preventing lawmakers from overstepping their jurisdiction through concealed or deceptive method. This doctrine is intricately linked to the concept of separation of powers and the federal structure of governance. In India, legislative powers are allocated between the Union and State legislatures according to the Seventh Schedule of the Constitution. Each legislature is empowered to enact laws on subjects enumerated in the Union List, State List, or Concurrent List. However, disputes may arise when one legislature passes a law that ostensibly falls within its purview but actually encroaches upon another legislature’s domain. In such instances, the doctrine of colourable legislation is applied to assess the law’s validity.

The doctrine of colourable legislation functions as a tool to ensure accountability and maintain the equilibrium of power within a constitutional framework. By focusing on the real intention and purpose behind a law, it prevents legislatures from exploiting legal loopholes to achieve constitutionally impermissible objectives. This principle upholds constitutional supremacy and ensures that legislative actions remain in line with constitutional mandates. In doing so, it plays a crucial role in preserving the integrity of a federal system and safeguarding the rights of individuals and other legislative bodies from unconstitutional intrusions.

ORIGIN OF DOCTRINE COLOURABLE LEGISLATION

The concept of colourable legislation finds its origins in the Latin phrase “quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which means “what is forbidden to be done directly . This principle was introduced in India during British rule, drawing inspiration from its application in Canada and Australia.[2]

Following India’s independence, the 1950 Constitution of India (COI) embraced the doctrine of colourable legislation. It  has since become an essential component of Indian constitutional law, serving as a mechanism to prevent legislative overreach and maintain the balance of power between different branches of government. This doctrine suggests that a law may seem to fall within a particular legislature’s jurisdiction, but in reality, it infringes upon the Constitution’s principles or exceeds the boundaries of legislative power. Essentially, it represents a form of deception where a legislative body enacts a law that appears legitimate on the surface but actually encroaches on another legislature’s domain.

This legal principle was initially articulated in Indian jurisprudence through the case of K. K. Verma v. Union of India (1954). The court ruling emphasized that both the intent behind a law and its actual content should be examined, rather than just its outward appearance. If a law is found to be a colourable exercise of power intended to circumvent constitutional restrictions, courts may declare it unconstitutional.

In more straightforward terms, the doctrine aims to prevent legislative bodies from creating laws that seem constitutional at first glance but are actually designed to sidestep the true legislative limits established by the Constitution. It serves to ensure that the law cannot be utilized as a means to infringe upon another legislative body’s jurisdiction, thereby safeguarding the federal structure of governance.

DOCTRINE OF COLOURABLE LEGISLATION

The concept of colourable legislation functions as a judicial tool for assessing the limits of legislative power. This principle comes into play when a governing body, without direct authority over a specific issue, enacts a law that indirectly tackles the prohibited subject. This notion is vital in assessing whether legislation surpasses the powers granted by the Constitution, particularly under Article 246, which delineates the distribution of legislative authority between federal and state governments. Fundamentally, this doctrine is utilized to determine if lawmakers have exceeded their constitutional boundaries by attempting to regulate matters outside their jurisdiction through indirect methods.

ARTICLE 246 OF THE CONSTITUTION OF INDIA

The Constitution of India’s Article 246[3] outlines how legislative authority is distributed between the national Parliament and state legislatures. It organizes legislative power into three distinct categories, which are enumerated in the Constitution’s Seventh Schedule. These categories specify the particular domains in which the Parliament and state legislatures are authorized to create laws:

The Union List (List I) grants Parliament sole authority to create laws on specific matters. These include topics of national significance, such as military affairs, international relations, and nuclear energy. The legislature holds sole authority to create laws on the topics listed in this enumeration.

List II, also known as the State List, outlines areas where state legislatures have sole authority to create laws. These areas focus on state-specific matters, including law enforcement, public wellness, and farming.

The Concurrent List(List III)in the Indian Constitution includes subjects on which both the Parliament and state legislatures can make laws, such as criminal law, marriage, bankruptcy, and education. It promotes cooperative federalism by enabling both levels of government to address issues of shared importance. In case of a conflict between state and central laws on these subjects, the law made by Parliament prevails, ensuring uniformity across the nation.

Furthermore, the Parliament has the authority under  Article 246(4)[4] to create laws for any region in India that is not part of a state, even when the subject matter falls within the State List. This structure creates a distinct distribution of legislative responsibilities, maintaining a balance of power within India’s federal system.[5]

DOCTRINE OF PITH AND SUBSTANCE

The principle of pith and substance seeks to identify the fundamental nature of a law .The  term “pith” represents the fundamental essence, whereas “substance” signifies the most important element. When a legislative body oversteps its authority by enacting a law that encroaches on another legislature’s jurisdiction, such legislation is considered invalid or ultra vires. In these cases, the pith and substance doctrine evaluates whether the legislative intrusion is minor or significant. If the encroachment is minimal, the doctrine deems the law valid.[6]

While the doctrine of colourable legislation aims to prevent governmental overreach in legislative authority, the pith and substance doctrine focuses on determining a law’s true character. Colourable legislation scrutinizes whether a law falls within the government’s legislative purview and invalidates it if it doesn’t. In contrast, the pith and substance doctrine assesses the extent of legislative power violation during judicial review.

The doctrine of pith and substance functions to make the strict federal framework more flexible. It aids legislatures in preserving their authority by preventing the judiciary from invalidating laws due to minor encroachments on legislative power. Both the pith and substance doctrine and the doctrine of colourable legislation derive their authority from India’s Constitution, aiming to uphold the country’s federal structure and safeguard legislative bodies’ powers. When lawmakers exceed their jurisdiction, courts have the discretion to apply either doctrine based on the case’s circumstances.[7]

In  case of  Prafulla Kumar Mukherjee v. The bank of commerce(1947)[8], the Bombay High Court evaluated the legitimacy of the Bengal Money Lenders Act, 1940. This legislation was designed to regulate money lending, a state list item, but some provisions also governed promissory notes, which fall under the union list. The Act was challenged for allegedly infringing on central government matters. Employing the pith and substance doctrine, the Court acknowledged that a clear distinction between legislative powers is impossible, and overlap is inevitable. Consequently, the Court determined that the Act should be evaluated based on its true nature and character, rather than solely considering the state’s legislative capacity. The Court ultimately confirmed the Act’s constitutionality by employing the pith and substance doctrine.

JUDICIARY VIEW ON COLOURABLE LEGISLATION

The Indian judiciary has played a crucial role in developing and refining this doctrine through various judgments. These judicial interpretations have helped establish guidelines for regulating the legislative authority of government bodies. The courts have used the doctrine to scrutinize legislation and ensure that lawmakers do not exceed their constitutional limits or attempt to achieve indirectly what they are prohibited from doing directly.

The judiciary employs the principle of colourable legislation with the intention to:

1. Uphold the spirit of the Constitution.
2. Prevent abuse of legislative power.
3. Ensure compliance with constitutional provisions.
4. Maintain the separation of powers.

The doctrine serves as a safeguard against attempts by the legislature to circumvent constitutional restrictions or encroach upon areas outside their jurisdiction. It allows the courts to examine not only the form but also the substance and effect of legislation to determine its constitutional validity.

The doctrine of colourable legislation becomes relevant when courts examine the core nature of a contested law to determine its true essence. A statute that appears to fall within a legislature’s authority but secretly infringes upon another legislative body’s jurisdiction is deemed an overreach of power and thus unconstitutional. This scrutiny safeguards the federal system and prevents the exploitation of legislative authority under the guise of legitimacy. The genuine challenge of applying this doctrine arises during the judicial assessment of a law’s substance to ascertain its authentic character.

LANDMARK CASE LAWS

• The doctrine of colourable legislation, clarified in KC Gajapati Narayan Deo vs State of Orissa (1953)[9], emphasizes that the substance of a law takes precedence over its form or the legislature’s intentions. The Supreme Court held that legislative competence is the primary criterion for determining the validity of a law, and a legislature cannot indirectly achieve what it is prohibited from doing directly. This doctrine prevents legislatures from overstepping their constitutional authority by disguising the true purpose of a law under a façade of legality.
• In the 1962 case of M.R. Balaji vs. The State of Mysore[10], the Mysore Government’s decision to allocate 62% of seats in state medical and engineering colleges for socially and educationally disadvantaged groups was contested. This allocation was seen as an abuse of the authority granted by Article 15(4)[11] of the Constitution. The Supreme Court ruled that this reservation was an exploitation of constitutional power, deeming the extent of the reservation excessive and therefore unconstitutional.
• All India Bank Employees’ Association vs National Industrial Tribunal (1961)[12] does not directly pertain to the doctrine of colourable legislation but provides relevant insights into legislative competence and reasonable restriction. This case, the All India Bank Employees’ Association argued that provisions regulating service conditions under the Banking Companies Act, 1949[13],indirectly restricted the fundamental right to form associations under Article 19(1)(c)[14]. While the court upheld the validity of the legislation, it indirectly touched upon the principle that the legislature must act within its constitutional limits and cannot disguise its true intent to achieve something it cannot do directly.
• In B.R. Shankar Narayana vs State of Mysore (1966)[15], the Supreme Court addressed the doctrine of colourable legislation. The petitioner challenged the Mysore Land Revenue (Amendment) Act, alleging it was a disguised attempt to legislate on matters outside the State’s jurisdiction. The Court held that the Act, which taxed agricultural income, was within the State’s legislative competence under Entry 46 [16]of the State List. It emphasized that the substance of the law, not its form, determines validity. Since the Act genuinely dealt with a subject within the State’s domain, the doctrine of colourable legislation did not apply.
• In S.S. Bola vs B.D. Sardana (1997)[17], the Supreme Court addressed the issue of whether the reservation policy implemented by the Haryana government constituted colourable legislation. The petitioners argued that the policy exceeded constitutional boundaries and was a disguised attempt to achieve an unconstitutional objective. However, the Court held that the policy did not amount to colourable legislation. It emphasized that colourable legislation applies when a legislature tries to accomplish something indirectly that it is constitutionally prohibited from doing directly. In this case, the reservation policy was legitimate, enacted within the constitutional framework under Articles 15(4)[18]and 16(4)[19], and aimed at uplifting disadvantaged groups. The Court ruled that there was no misuse of legislative power or intent to bypass constitutional limits, affirming the policy’s constitutionality.

LIMITATIONS OF DOCTRINE OF COLOURABLE LEGISLATION

1. Substance over form: The doctrine applies only when a law indirectly achieves an unconstitutional objective. Substance over form is a legal and constitutional principle that emphasizes the actual content, purpose, and effect of a law, action, or transaction over its external appearance or formal structure. In essence, this principle ensures that the essence or reality of a matter is given priority over the technicalities or superficial formalities.
2. Judicial restraint: Judicial restraint ensures that the judiciary respects the legislature’s constitutional role while applying the doctrine of colourable legislation. Courts intervene only when there is clear and unequivocal evidence of legislative overreach, thereby safeguarding constitutional boundaries without disrupting the democratic process or encroaching on policy-making functions. This balance preserves the judiciary’s integrity and the separation of powers.
3. Concurrent powers: Laws impacting shared areas are not automatically colourable if they remain within legislative competence. The doctrine of colourable legislation ensures fairness and adherence to the constitutional division of powers, especially in areas of concurrent jurisdiction where conflicts are more likely.
4. Separation of powers: Courts must respect legislative discretion and avoid excessive interference in policy-making.  the principle of separation of powers by ensuring that legislatures remain within their constitutional jurisdiction, respecting the domains of other branches of government, and upholding the supremacy of the Constitution.
5. Public welfare: Laws aimed at public welfare may be valid even if they affect areas of overlapping jurisdiction. while public welfare is a central goal of legislative action, the doctrine of colourable legislation ensures that it is not exploited as a façade to overstep constitutional limits. Courts act as guardians of the Constitution, balancing public welfare with the need to uphold legislative integrity and constitutional boundaries.
6. Subjective analysis: The application of the doctrine depends on the specific facts and context of each case. Subject analysis is a crucial tool In applying the doctrine of colourable legislation. By examining the true nature, purpose, and impact of laws, courts ensure that legislatures do not disguise unconstitutional actions under permissible subjects. This safeguards the balance of power, upholds the federal structure, and preserves the rule of law.
7. No blanket rule: The doctrine is not applied to every law that might affect constitutional restrictions indirectly. The principle of “no blanket rule” ensures that the doctrine of colourable legislation remains a flexible and fair tool for judicial review. It allows courts to address legislative overreach without unnecessarily invalidating laws that are otherwise constitutionally sound. This nuanced approach respects legislative intent while safeguarding the constitutional distribution of powers.

CONCLUSION

The “doctrine of colourable legislation “ensures that legislatures do not exceed their constitutional authority by enacting laws that appear to fall within their jurisdiction but, in substance, attempt to achieve an unconstitutional objective. While it serves as a check against legislative overreach, the doctrine is applied cautiously, focusing on the substance of laws rather than their form. Courts respect legislative competence but intervene when there is clear evidence of an attempt to bypass constitutional limits. Overall, the doctrine upholds the principle of federalism and protects the constitutional distribution of powers, maintaining the integrity of legislative processes while allowing reasonable legislative action within defined boundaries.

The doctrine upholds the supremacy of the constitution and ensures a balance of power between various legislative bodies. It prevents misuse of legislative competence by scrutinizing the real purpose of a law, irrespective of its form. However, courts respect the autonomy of the legislature and only apply this doctrine when there is clear evidence of constitutional violation. Thus, the doctrine of colourable legislation ensures both accountability and adherence to constitutional limits, safeguarding the democratic structure and rule of powers.

REFERENCES

1. Law lex  org, doctrine of colourable legislation , https://lawlex.org/lex-pedia/doctrine-of-colorable-legislation/ (last visited Dec 5^th ,2024)
2. Drishti judiciary, origin of colourable legislation,  https://www.drishtijudiciary.com/doctrines/constitution-of-india-doct/doctrine-of-colourable-Legislation ( last visited Dec 5^th2024)
3. Lawbhoomi.com, Article 246 , https://lawbhoomi.com/doctrine-of-colourable-legislation/ ( last visited Dec 5^th,2024)
4. LexisNexis student series Constitutional Law book( 2005), Doctrine of colourable legislation, DR. Ranbir Singh & Dr. A Lakshminath constitutional law book (2005), ( last visited Dec 6^th,2024)
5. Ipleaders, Doctrine of pith and substance,  https://blog.ipleaders.in/understanding-interpretation-doctrine-colourable-legislation-supreme-court-india/ ( last visited Dec 6^th,2024).

---

[1]  Law lex org ,https://lawlex.org/lex-pedia/doctrine-of-colorable-legislation/2017 (last visited Dec 5^th,2024)

[2] Drishti judiciary, origin of doctrine of colourable legislation , https://www.drishtijudiciary.com/doctrines/constitution-of-india-doct/doctrine-of-colourable-Legislation#:~:text=The%20doctrine%20of%20colourable%20legislation,’Fraud%20on%20the%20Constitution’. ( last visited Dec 5^th,2024)

[3]   Constitution of India, Article no.246

[4] Constitution of India, Article no.246(4)

[5] Lawbhoomi.com, https://lawbhoomi.com/doctrine-of-colourable-legislation/, ( last visited Dec 5^th, 2024

[6]  LexisNexis student series, DR. Ranbir Singh & Dr. A Lakshminath, LexisNexis student series

Constitutional Law book ( 2005) ,Doctrine of colourable legislation  page no.390

[7]  Ipleaders, Doctrine of pith and substance , https://blog.ipleaders.in/doctrine-of-colourable-legislation/( last visited Dec 6^th, 2024)

[8] Prafulla Kumar Mukherjee vs State of Mysore (1947) 49 BOM LR568

[9] K. C. Gajapati Narayan Deo vs State of Orissa (1953) AIR 1953 ORI 185

[10] M. R. Balaji vs the State of Mysore: 1963 AIR 649, 1962 SCR SUPL. (1) 439, AIR 1963 SUPREME COURT 649

[11] Constitution of India, Article 15(4).

[12] All India Bank Employee’s Association vs National Industrial Tribunal (1961),1962 AIR 171, 1962 SCR (3) 269

[13] Banking Companies Act, 1949

[14] Constitution of India, Article 19(1)(c)

[15] B.R Shankar Narayana vs State of Mysore (1966)AIR 1966 SUPREME COURT 1571.

[16]  Seventh Schedule of constitution of India, State List Entry no.46 .

[17] S. S. Bola vs B.D Sardana (1997) ,AIR 1997 SUPREME COURT 3127, 1997 AIR SCW 3172, 1997 (5) SCALE 90, 1997 (8) SCC 522, (1997) 3 SCT 645, (1997) 7 SUPREME 427, (1997) 5 SCALE 90, (1997) 5 SCJ 278.

[18] Constitution of India, Article 15(4).

[19] Constitution of India, Article 16(4).

 Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.