Quando aliquid prohibetur ex directo, prohibetur et per obliquum

What cannot be done directly cannot be done indirectly
Colourable legislation refers to laws or regulations that, while appearing to be valid and legitimate on the surface, are actually designed to circumvent established legal principles, restrictions, or constitutional provisions. In essence, it is a form of deception in which lawmakers draft laws that seem lawful but are intended to achieve an ulterior or hidden purpose.

The term "colourable legislation" has its origins in legal terminology and concepts developed over centuries, particularly in English common law. The word "colourable" in this context doesn't refer to the visual aspect of colour but rather to the appearance or semblance of something which is "wrong". The term "colour" was used in the sense of an external or superficial appearance that conceals the true nature of something.

The concept of "colour" in law dates back to medieval English legal traditions, where it was used to describe situations where a person or entity attempted to give a false appearance of legality to their actions. In essence, "colour" referred to the superficial or deceptive appearance of a legal right or authority. Over time, this concept was applied to legislative acts and statutes as well.

The term and the concept have been used and developed in legal discussions and court decisions over many years, and it is not specific to any one legal system. It reflects a broader legal principle that aims to prevent deception, evasion of legal restrictions, and abuses of the legislative process. As a result, "colourable legislation" remains a relevant and significant concept in contemporary legal systems around the world.

Bonham's Case, also known as Dr. Bonham's Case, is a landmark legal decision in English common law that dates back to 1610 during the reign of James I. This case is historically significant because it played a foundational role in the development of principles related to the rule of law, the separation of powers, and the limits on legislative authority.

The central issue in Bonham's Case was whether an act of Parliament (the College of Physicians of London Act) could be considered void if it violated common law principles or principles natural justice.

Chief Justice Sir Edward Coke made a ground-breaking assertion that, "in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it and adjudge such Act to be void."

Coke's decision in Bonham's Case established several important principles:

• Supremacy of Common Law: Coke emphasized the primacy of common law principles as a higher source of law that could be used to invalidate acts of Parliament if they violated fundamental legal principles.
• Separation of Powers: It laid the groundwork for the concept of the separation of powers, suggesting that the judiciary had a role in ensuring that legislative actions did not infringe upon established legal principles.
• Limitation on Legislative Authority: The case implied that the authority of Parliament was not absolute and that there were limits to what it could legislate.

Bonham's Case did not immediately overturn the College of Physicians of London Act, but it left a lasting legacy in English and later in, American and common law countries' jurisprudence. It contributed to the development of the idea that legislation could be subject to judicial review and be declared void if it violated fundamental legal principles. While the case may not have explicitly dealt with colourable legislation, its principles have relevance to broader discussions of the rule of law and the limits of legislative authority.

"Quando aliquid prohibetur ex directo, prohibetur et per obliquum"
This legal maxim underscores the principle that if an action or conduct is expressly forbidden by law, it is equally prohibited when attempted indirectly or through subterfuge.

This principle is often invoked to prevent individuals or entities from evading legal restrictions or prohibitions by trying to achieve the same result through indirect or deceptive means.

United States v. Harris (1954):
In this U.S. Supreme Court case, the Court discussed the application of the Federal Regulation of Lobbying Act. The Act required lobbyists to register and disclose their activities. The Court held that the Act's requirements applied not only to direct lobbying efforts but also to indirect attempts to influence legislation. Lobbyists could not evade the registration requirement by using indirect methods to influence lawmakers

Queen v. Siracusa (1990) (Australia):
In this Australian case, the question was whether the offense of importation of drugs applied when an accused was involved indirectly in the importation process. The High Court of Australia ruled that the offense applied to individuals involved in any part of the importation process, whether directly or indirectly. This upheld the principle that when something is prohibited by law, it is prohibited both directly and indirectly.

Colourable legislations by a colourful government
The National Judicial Appointments Committee:
The government had passed the 99th Constitutional Amendment Act in 2014, which sought to replace the collegium system with a new body called the National Judicial Appointments Commission (NJAC). The NJAC was designed to include both judicial and non-judicial members, including the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons appointed by a committee consisting of the Prime Minister, CJI, and Leader of the Opposition in the Lok Sabha.

Various petitions were filed challenging the constitutional validity of the NJAC Act and the related Constitutional Amendment on the grounds that it violated the independence of the judiciary as enshrined in the Constitution.

The Supreme Court, in its judgment on October 16, 2015, declared the NJAC Act and the 99th Constitutional Amendment Act unconstitutional. The court held that the NJAC compromised the independence of the judiciary, as it gave the executive and political branches too much influence over judicial appointments and transfers.

Following the judgment, the collegium system was reaffirmed as the prevailing method for the appointment and transfer of judges in India's higher judiciary.

The Fourth Judges Case effectively upheld the primacy of the collegium system and rejected the introduction of the NJAC. It also highlighted the significance of judicial independence as a cornerstone of India's constitutional framework.

This bill was brought in by the government to nullify the collegium system implemented through judicial pronouncements. While the second judges' case laid down the foundation for primacy of the opinion of the CJI and other senior judges of the Higher Judiciary, the NJAC bill looked to strip this authority of the Judicial Collegium and make the government on par with the Collegium with regards to appointment of judges.

Inclusion of member of Government and persons appointed by the Government in the commission to appoint judges would have led to dilution of the principal of separation of powers. As of today, the government enjoys no right to appoint judges without the recommendation of the Collegium.

The NJAC bill was introduced to subvert the primacy of the opinion of the CJI and other senior Judges over appointment of judges in higher courts and make the government one of the members to have a say in recommendation of appointment of judges. This was done despite the Second and Third Judges' judgement which held that the judiciary was in the best possible position to decide the recommendation to be made for appointment of judges.

It was an attempt by the government to be included in the process of Judicial appointment completely disregarding valid precedents set forth by the Supreme Court and the principal of Separation of Powers under the guise of regulating process for appointments in the higher judiciary.

Anoop Baranwal v. Union of India:
A 5 judge bench constituting Justice K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar in March of 2023 unanimously held that the selection of the Chief Election Commissioner and the Election Commissioners would be done by a three-member Committee consisting of the Prime Minister, the Leader of the Opposition (or the leader of the largest opposition party in Parliament), and the Chief Justice of India. The Court, thus, altered the present mode of selection, where the CEC is appointed by the President, acting on the advice of the Prime Minister.

This was widely seen as the SC upholding the principles of Separation of Powers and Independence of the Judiciary. This was a positive step towards liberal democracy as envisioned by the constitution.

This was a short lived hope as a new bill was introduced in the Parliament with constituted a committee to appoint Chief Election Commissioner and Election Commissioners.

The Election Commission Bill, 2023 apart from the provision of appointment, also provides for qualifications and conditions of services of CEC and other ECs and the transaction of business and disposal of business by the Election Commission.

The system of appointment of CEC and ECs provided by the Bill is that the President, by warrant under his hand and seal, appoint on the recommendation of the Selection Committee consisting of the Prime Minister as its Chairman, the Leader of Opposition in the House of the People and a Union Cabinet Minister as members. The leader of the single largest party in opposition in the House of the People will be deemed as the Leader of Opposition if it is otherwise not recognized in the House. The Union Minister to the Committee to be nominated by the Prime Minister.

This Selection Committee will consider the panel of five persons prepared by a Search Committee headed by Cabinet Secretary. The Bill also empowers the Selection Committee to consider any person outside the panel prepared by the Search Committee for appointment. Moreover, the Bill also provides that the appointment of CEC or EC shall not be invalid due to any vacancy or defect in the constitution of the Selection Committee. From its very composition, the upper hand of the Central Government in the Selection Committee is clear that the appointment of CEC and ECs shall only be in accordance with the interest of the executive.

The exclusion of the CJI and inclusion of the Union Cabinet Minister as a member in the Selection Committee with drastically reduce the independence of the Selection Committee. The majority vote which is being wielded by the executive for the selection of CEC and EC's completely ignores the judgement laid down by the SC and it's interpretation of the authority of the Chief Election Commissioner.

While the parliament has the power to over-turn judicial decisions, it cannot do so when the law laid down has been interpreted directly from the Constitution while touching its basic structure.

The law laid down in Anoop Baranwal V Union of India envisioned the CEC to be equivalent to the CJI and the PM. The Bill will create an overshadow in the minds of the people that the Election Commission is a branch of the executive rather than the independent constitutional body entrusted with the constitutional obligation of free and fair conduct of elections.

This is prime example of a colourable legislation where fundamental principles laid down by the SC are systematically chipped away by the executive for its benefit.

Also Read:

• An Overview Of Doctrine Of Colourable Legislation
• Doctrine Of Colourable Legislation