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An Overview Of Doctrine Of Colourable Legislation

Federalism is one of the fundamental elements of Indian constitution. By temperance of this force the constitution visualizes an outline of governmental powers and functions between different constituent units of the country. Basically in a federation there are two degrees of govt. the presence or authority of each level of the Government has been ensured by the constitution. Indian framework is particularly affected to the colonial ruling arrangement of the English for some reasons. One of the impacts of this should be the strategy which made the three main pillars of the democracy i.e. executive, judiciary and the legislature.

In Indian a direct partition of power succeeds by which a balance has been kept up with between the various organs of the government among these the law making power basically vests on the lawmaking body.

The maxim doctrine of colourable legislation means what cannot be done directly cannot also be done indirectly. This doctrine is applied when legislature tries to accomplish something in a backhanded way when it can't do it straightforwardly. In this manner, it alludes to the ability of the legislature to establish a specific law. In the event that the reproved enactment falls within the capacity of the legislature, the question of acting something indirectly which can't be done directly doesn't emerge.

Meaning, Applicability And Scope Of The Doctrine

The Doctrine of Colourable Legislation is derived from a latin maxim "Quando aliquid prohibetur ex directo, prohibetur et per obliquum" that says:
What cannot be done directly, should also not be done indirectly.

This doctrine has been used in the cases to decide questions of capacity/ competency to enact a law when a lawmaking body violates its given power and enact after something in an indirect way which it can't do in a direct way.

The subject matter of the law appears to fall within the power of the council on the face of the legislature however the connected impact or motive behind the matter really falls past the authority and domain of the assembly. So in a way, the doctrine limits the overstretching or abuse of the allowed established force in an undercover way. This is the reason the tenet is likewise broadly known as "fraud on the Constitution".[1]

Note: The doctrine of colourable legislature is not applicable when assail legislation does fall under the legislation capacity of the legislature.

The Supreme Court in the case of K.C Gajapati Narayan Deo vs. State of Orissa[2] has well explained the meaning and scope of the doctrine as the court stated that;

If the constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by the constitution in specific legislative entries, or if there are limitations on the legislative authority in the shape of Fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.

Further, in this case, the Supreme Court went to opine that the idea conveyed by the expression is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise.

If we say in other words, it is the substance of the demonstration that is material and not simply the structure or visible presentation and if the topic in substance is above the powers of the legislature to enact upon the structure/ form where the law is dressed can't save it from judgment. The legislature can't abuse the constitutional preclusions by utilizing indirect strategies.

Furthermore, in R.S Joshi v. Ajit Mills[3], the Supreme court observed and stated that In the jurisprudence of power, colourable 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 colourable legislation.

Historical Background
The development of the doctrine of colorable legislation traces all the way back to the british time frame when the self-government had expanded its existence in significant pieces of the British Empire and the Commonwealth. The subjects of legislature then, at that point were distributed between the Central and Provincial units and to keep a check of the powers conceded to these units, any establishment was tried against the precept of colourable legislature. From that point, the doctrine discovered its approach to India that utilized the Canadian and Australian legitimate points of reference to take on the standard of this doctrine.[4]

In India, the power was given to the Judiciary to apply this doctrine while at the same time settling on the legislative ability of the Union and state governing bodies. The statement of Jus Alladi Krishnaswami Ayyar on the precept of colourable legislature given in the Consituent gathering is as per the following:
It is an accepted principle of Constitutional Law that when a Legislature, be it the Parliament at the Centre or a Provincial Legislature, is invested with a power to pass a law in regard to a particular subject matter under the provisions of the Constitution, it is not for the Court to sit in judgment over the Act of the Legislature…Of course, if the legislature is a colourable device, a contrivance to outstep the limits of the legislative power or to use the language of private law, is a fraudulent exercise of the power, the Court may pronounce the legislation to be invalid or ultra vires[5]

Indeed, even Jawaharlal Nehru, while maintaining administrative incomparability, confined its absolute power and said: Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where in fact there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution.[6]

Limitations Of The Applicability Of The Doctrine

There are sure impediments on the applicability of this Doctrine. They are given below:
  1. It isn't pertinent in situations where the power of the legislature isn't restricted by the constitutional provisions.
  2. It doesn't reach out to cases of subordinate legislation.
  3. The motive of the legislature while passing an order is superfluous to decide its legitimacy
  4. There will consistently be an assumption of constitutional legitimacy for the enactment of the legislature.

This guideline was set down on account of Ram Krishna Dalmia versus Shri Justice S.R. Tendolkar and Ors., expressing:
That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.[7]

Principles
  1. It can be distinguished as a fraud on the constitution because legislation can not violate a law through an indirect method. (K.C.G. Narayan Deo Vs State of Orissa)[8]
     
  2. Colourability is bound with incompetency and not with any evil and bad motive, if the legislature has the power to make the laws, then the motive in making the law is irrelevant. (Nageshwar v. A.P.S.R.T Corp.)[9]
     
  3. If something is colourable in appearance only but not in reality then the court looks into the true nature of the legislation and in that case it focuses on the object as the purpose is relevant and not the motive. (Jalan Trading Vs. Mill Mazdoor Sabha)[10]
     
  4. The expediency, necessity and propriety of a legislation act are for the determination of the legislative authority not for the determination by the courts. (T. Venkaia Reddy v. State of A.P.)[11]
     
  5. If the legislature is competent to do a thing directly then the fact that it attempted to do it indirectly or in a disguised manner can't make the respective Act invalid. (K.C Gajapati Narayan Deo vs. State of Orissa)[12]

Landmark Judgements
  • State of Bihar v. Kameshwar Singh [13]
    This is the only landmark judgment where the statute has been proclaimed clearly invalid on the ground of being colorable legislation. In this case, the petitioner, tested and challenged the legitimacy of the Bihar Land Reforms Act 1950[14] on the premise that the demonstration was apparently planned to set out the guideline of pay however indeed, it didn't set out any such rule. This was claimed as the implied endeavor to deny the petition of his right to remuneration. The court additionally maintained the unconstitutionality of the Act.
     
  • State of M.P. vs. Mahalaxmi fabric mills ltd.[15]
    In this case the issue was raised that increasing the royalty rates from 400% to 2000% by the Parliament in the Cess and other Taxes on Minerals Validating Ordinance, 1992 was a colorable legislation. As the central government has the power to increase the rates of royalty in 1982, many coals producing states imposed & received cess on coal development, which was held to be invalid and far from the legislative competence of the state legislation. In this case, the Supreme case upheld the validity of the notification and held that it could not be said to be a colorable legislation as the minerals belonged to the states and thus should be re-compensated for the loss they have faced.
     
  • State of Tamil Nadu v. M. Rayappa Gounder [16]
    In this case law, the Madras Government made a move to reconsider a portion of the theater owners of the theatres who were seized to have gotten away from the entertainment tax. At the point when the matter arrived at the High Court, it was concluded that the concerned legislation Madras Entertainment Tax Act 1939 [17]didn't give the authorization to the government to conduct reassessment and the Act was struck down. The state government filed an appeal in the Supreme Court to which the court believed that the impact of this provision was to overrule the High Court order and it was not intended to change the law retrospectively.
     
  • Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. [18]
    The issue of the legitimacy of impugned legislation was raised, to which the Supreme Court recognized the amendment brought to the Act, the legislature body has endeavored to overrule and set aside the decision of the court that is denied under Constitutional plan. Art. 141 of the Constitution[19] that evidently sets out the power of the Supreme Court for all its order to be binding on all Indian courts plainly infers that the legislature in no limit can say that the affirmation made by the court was invalid, uncertain, or incorrect either as a point of reference or between both the parties.
It is suggested by the above mentioned case that the explicitly conferred powers to the legislature to enact/ legislate on any issue are comprehensive of ancillary and incidental powers in respect of the appropriate enforcement of that law. Thus, there is a need of the doctrine of colorable legislation to resolve legislative accountability with regards to essential modification in the legislature functions.

Conclusion
The Constitution disseminates administrative forces between the Parliament and State Legislatures, and each needs to act inside its circle. In regard of specific legislation, the inquiry might emerge whether the governing body has violated the limits imposed on it by the constitution. Such offense might be patent, show or direct, however it might likewise be masked, indirect or covert. It is to this last class of cases that the expression Colourable legislation.

The Doctrine of Colourable legislation comes to rescue to deal with covert, disguised and indirect violation scenarios. The basic thought is that although obviously, a lawmaking body in passing a resolution suspected to act inside the restrictions of its forces, yet in substance and as a general rule it violated these forces, the offense being hidden by what shows up, on legitimate assessment, to be simple affectation or mask. In case that is thus, the legislature being referred to is invalid.

This doctrine acts as a fundamental tool of the judiciary to keep an eye on the powers of legislative granted to the Union & State governments and also decide the validity of the legislation in question or doubt.

End-Notes:
  1. Constitutional Law I Unit III Dr.Syed Asima Refayi Relations Between The Union And The States
  2. 1953 AIR 375.
  3. 1977 AIR 2279, 1978 SCR (1) 338
  4. The doctrine of Colorable Legislation: Indian Constitution by Anchal Chhallani
  5. Constituent Assembly Debates On 10 September, 1949 Part I
  6. Constituent Assembly Debates On 10 September, 1949 Part I
  7. 1958 AIR 538
  8. K.C.G. Narayan Deo Vs State of Orissa, AIR 1953 SC
  9. Nageshwar v. A.P.S.R.T Corp.), AIR 1953 SC
  10. Jalan Trading Vs. Mill Mazdoor Sabha
  11. T. Venkaia Reddy v. State of A.P., AIR 1985 SC
  12. Supra note 2
  13. AIR 1952 SC 252
  14. AIR 1952 SC 252.
  15. State Of M.P vs Mahalaxmi Fabric Mills Limited & ... on 1 February, 1995
  16. AIR 1971 SC 231.
  17. Madras Entertainment Tax Act 1939
  18. 1971 AIR 57.
  19. Art. 141 of the Constitution, 1950

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