Dec 8, 2021 16:22 UTC
Dec 8, 2021 at 16:25 UTC
Study Notes: Doctrine of Colourable Legislation
“You cannot do indirectly what you are prohibited from doing directly”
The Doctrine of Colourable Legislation is based on the maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means that what is prohibited directly, is also prohibited indirectly.
In simple words, a colourable legislation is a law that has been painted in a different colour so as to hide its original intent. It is a mere guise intending to hide the original purpose or object of the law which otherwise is either unlawful or beyond the power of the government to legislate on. The doctrine of Colourable Legislation, hence, stands as a wall which prohibits such fraud or scam on the Constitution. The Court applies this doctrine to determine the competency of the enactment of such impugned legislation and examines its true and latent nature. If the court finds any transgression of authority by the legislature in making such law, it declares such law as void. It is important to note, that for the purposes of this doctrine only the object and design of the legislation is relevant and not the motive of the legislature.
Article 246 and Schedule VII of the Constitution of India demarcates the powers of the Center and the State into three lists, namely, List I (Union List), List II (State List) and List III (Concurrent List). The doctrine of Colourable Legislation keeps a check on the legislature that it makes laws only on the subject matter within its competence and does not encroach upon what is beyond its authority, either directly or in an indirect manner.
IMPORTANT CASE LAWS
- State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)
This is the only case where a statute was declared void on the basis of Doctrine of Colourable Legislation. In this case, the constitutional validity of Bihar Land Reforms Act, 1950 was challenged on the ground that although the Act provided for compensation to the zamindars for acquisition of surplus land but in reality it failed to lay down any such policy of compensation and was, in fact, a hidden attempt by the law-makers to deprive the zamindars of their right to benefit. Despite being placed in Schedule 9 that imposes an embargo on Judicial Review of legislations inserted in this Schedule, the Supreme Court pronounced Section 4 and 23(f) of the Act of 1950 to be unconstitutional stating them to be a fraud on the Constitution.
- K.C. Gajapati Narayana Deo v. The State Of Orissa (AIR 1953 SC 375)
While upholding the constitutional validity of the Orissa Agricultural Income Tax Amendment Act, 1950 the Apex Court emphasized upon the meaning and scope of the Doctrine of Colourable Legislation in this case. The Court held that the question if a law is colourable legislation or not depends upon the competency of the legislature to legislate that particular law and not upon the motive of the legislature in passing such law. Legislation is colourable only if it is shown that the real object of the Act is unattainable by reason of any constitutional limitation via encroachment on the forbidden legislative field.
- M.R. Balaji v. The state of Mysore (AIR 1963 SC 649)
An order issued by the Mysore Government under Article 15(4) of the Indian Constitution reserving 68% seats for admission in state educational institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes was challenged in this case. The Honorable Supreme Court ruled against the order on the ground that the Constitution does not confer any power on the State to make reservation solely on the basis of caste without considering other factors provided in Article 15(4). The Court held this reservation order to be a fraud on the Constitution and therefore, declared it as unconstitutional.
- K.T. Moopil Nair v. The State of Kerala (AIR 1961 SC 552)
The Supreme Court struck down the Travancore Cochin Land Tax Act, 1955 that imposed a uniform tax on all sorts of forest lands, irrespective of their productivity, thus, resulting in the levied tax to exceed the income generated from the forest lands. The Apex Court held the Act to be violative of Articles 14 and 19(1)(f). The Act, though, purporting to be taxing was in fact confiscatory in nature.