Federalism is one of the fundamental ideas in the Indian Constitution that
firmly establishes and upholds the theory of colourable law. Recall that the
separation of powers and checks and balances are the two guiding concepts of the
federalism form of government. According to the collective understanding of
federalism, each governmental organ is endowed with authority, and none of the
component units is permitted to impede the other's ability to carry out their
It is important to remember that the federal system differs from unitary
government in that there are two levels of government in a federation: one at
the centre and one that oversees the provinces and states.
The checks and balances principle, in contrast to unitary, upholds the concept
of the separation of powers by mandating that each organ oversee the operation
of the others in order to prevent the eventual dictatorship of one organ.
In Brief: The Doctrine of Colorable Legislation
India is a union of states, yet despite this, the states are not allowed to
break away from the Indian federation. There are undoubtedly a number of shared
laws between the union and the state, such as an independent and integrated
judiciary, a supreme Constitution, a single citizenship, a common election
commission, etc. However, the Indian Constitution clearly defines the boundaries
of authority and power between the three branches of government, which is where
the doctrine of the separation of powers comes into play.
According to that, the primary duty of the legislature is to make laws, however
with restrictions; this is the guiding principle behind the doctrine of
colorable legislation. "The method of dividing powers so that the general and
regional governments are each within a sphere coordinate and independent," in
the words of K.C. Wheare The Indian Constitution's Article 246 specifies how the
Parliament and state legislatures will share legislative authority in accordance
with the Seventh Schedule.
There are three lists in this schedule:
- List I, often known as the Union List, over which the Parliament has
- List II, the State List, which is solely within the purview of the State
- List III, often known as the Concurrent List, is within the jurisdiction
of both the State Legislatures and the Parliament
As a result, if a legislature tries to go beyond its authority, it is subject
to the Doctrine of Colorable Legislation.
What Is The Purpose Of The Doctrine Of Colourable Legislation?
The proverb "What cannot be done directly cannot also be done indirectly," which
is based on the Latin proverb "Quando aliquid prohibetur ex directo, prohibetur
et via obliquum," is a good example of the doctrine of colourable legislation.
When the court is faced with a case where the legislative competence is at
stake, the doctrine of colourable legislation enters the picture.
In order to determine whether or not that particular legislature has the
authority to legislate on the matter, the court will look at whether the
challenged statute and its enactment come within its jurisdiction. In that case,
the statute would be deemed invalid. It is interesting to note that occasionally
the contested legislation appears to fall under its purview, but its actual
outcome or intent lies outside of its purview.
Recognizing The Principle Of Color-Coded Legislation
The Doctrine of Colourable Legislation serves as a record of how the various
legislative branches are divided in terms of authority. The doctrine's core idea
is that even if a law's subject matter is outside of its purview, it
nevertheless stands void if it was passed in an indirect manner.
As a result, if a legislature is unable to pass legislation on a subject that
cannot be dealt with directly, then the same cannot be done indirectly using a
constitutionally authorised power.
I should reiterate that, in accordance with Article 246 of the Indian
Constitution, neither the Union government nor the States List have any
legislative authority over the issues listed there. However, the doctrine of
colourable legislation will apply if the Union attempts to pass legislation
relating to the taxation of agricultural revenue (item 46, state list) while
disguising its constitutionally granted legislative authority over all taxes
(article 82, union list).
Fraud on the Constitution
According to the doctrine of colorable law, an action that is unlawful is always
unlawful and cannot be made legal by changing its colour, language, form, or
In the case of K.C. Gajapati Narayan Deo v. State of Orissa
Supreme Court of India provided a clear explanation of the same " 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
the 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."
Therefore, anything that is forbidden explicitly is likewise illegal indirectly;
in other words, the law's subject is its substance, not how it looks.
Furthermore, no amount of disguising can shield legislation from criticism if
the subject matter is outside the purview or purview of the legislature.
This is the rationale behind the nickname "Fraud on the Constitution" given to
the doctrine of colorable legislation. As a result, one of the other
constitutional doctrines, the doctrine of colorable legislation, assists the
court in interpreting the conferred powers, particularly for the "legislative"
branch of the other two branches of government.
It is important to remember that the Doctrine of Colorable Legislation prevents
the Parliament and state legislatures from extending their authority beyond what
is necessary to accomplish their goals. Therefore, the Doctrine cannot be used
when the legislature attempts to accomplish a goal without going outside the
bounds of its authority.
Background History Of The Colorable Legislation
The idea of self-government increased its presence and began to gain relevance
in the commonwealth and a substantial portion of the British Empire during the
colonial period, which is when the doctrine of colorable law first became
prevalent. The legislative authority given to the federal government and the
various provincial divisions was monitored and checked using this doctrine.
Every time a dispute over the center's and the provinces' legislative authority
arose, they utilised this doctrine to decide if the law was legal.
The Indian judiciary then used Canadian and Australian precedents to adopt the
Doctrine while determining the legislative competence of the legislatures. But
what was the justification? Jawaharlal Nehru described the Doctrine's
"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, wherein fact there has been a
fraud on the Constitution."
Jus Alladi Krishnaswami Ayyar further stated in the constituent assembly as:
"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"
Meaning of Colorable Law in Literal Terms
Colorable, in common usage, denotes a semblance or guise, i.e., something that
appears to be real or proper but is intended to deceive. The Supreme Court of
India stated in the case of K.C. Gajapati Narayan Deo v. State of Orissa
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, but 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."
Therefore, it is called colorable legislation when a law is coloured differently
to make it appear to fall inside the authority but actually deals indirectly
with the subject outside of its purview.
Relevance of the doctrine of colorable legislation in the Constitution
The Indian Constitution's Article 246 addressed the division of legislative
power through lists with topics designated for the union, the state, and both
under the seventh schedule.
The Lists include:
- Union list
- State list
- Concurrent list
The overall goal is to prevent one legislative branch from meddling in the
affairs of another.
Limitations of the Colorable Legislation Doctrine
The following situations preclude the use of the doctrine of colorable
- when the constitutional provisions, such as Article 246 or Part III of
the Constitution, do not restrict the power of the legislatures.
- Whenever the contested legislation involves secondary Legislation
The doctrine of colorable legislation simply considers the legislative
competence of the legislator and does not take into account the relevance or
intent of an enactment. Additionally, the burden of proof for the challenged
legislation's ultra vires status rests with the petitioner; up until that point,
the law will always be presumed to be constitutional.
There is always a presumption in favour of the constitutionality of an
enactment, and the burden is on him who challenges it to demonstrate that there
has been a clear violation of the constitutional principles, according to the
court's ruling in Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & Ors.
According to the general understanding of the doctrine of colorable legislation,
the Constitution divided power between the state legislatures and the
Parliament. Both legislatures are given complete freedom to operate within their
respective spheres of responsibility, but they are both prohibited from directly
or subtly violating the other's boundaries. Therefore, the legislative body is
not permitted to pass legislation on a subject that affects the issue outside of
its purview. If so, the doctrine of colorable legislation will take effect to
strengthen the powers conferred by the constitution.