INTRODUCTION
India is a union of states.[1] Having a quasi-federal system of government. For the successful functioning of such a system, there is a need to maintain an adequate balance of power between the various levels and organs of the government. The Constitution ensures this balance of power by laying down provisions that separate these powers. In pursuance of this goal, the Constitution divides powers and functions between the centre and state government and between the legislature, executive and judiciary.
Our discussion here is limited to the power to legislate laws. At various instances, the legislature tries to override the powers it is assigned, by making the laws on subject matters beyond its jurisdiction. This abuse of power is the biggest danger to the foundation of our quasi-federal government system, leading to the dominance of legislature on executive and judiciary or the supremacy of centre legislature over state legislature or vice-versa. Therefore it is required that each organ keep a check on the functions of others, this is called the checks and balances system. So, when the legislature legislates a law that overrides the Constitution, then such law is declared void and ultra vires by the judiciary through judicial review.
But what if the legislature legislates a law that appears to be within its jurisdiction on the face but indirectly abuses the power? This is where the Doctrine of Colourable legislation applies. This doctrine says that what the legislature can not do directly, it cannot do indirectly. And such a law is void. Such deceiving legislation is considered as a “ fraud on the Constitution”. In this blog, we will delve into the concept of this doctrine, its origin, provisions in the Constitution and the limitations of it.
THE DOCTRINE OF COLOURABLE LEGISLATION
This doctrine is based on the legal maxim, “Quando aliquid prohibetur ex directo, prohibetur et per obliquum“, which means “What cannot be done directly, should also not be done indirectly”. It means if a legislature does not possess the power to make law on a specific subject, then the legislature cannot make a law on such subject indirectly through deceptive colouring often involving a strategic manipulation of legal language to create a veneer of legality while subverting the true intent behind the law[2].
In a legal dictionary colourable is defined as, which has or gives colour, which is in appearance only, and not in reality, what it purports to be[3]. A colourable legislation in this manner purports to abide by the separation of power made in the Constitution but in reality, overrides that. By striking down such legislation the judiciary acts as the guardian of the Constitution.
In K.C. Gajapati Narayana Deo And Other v. The State Of Orissa[4] The honourable Supreme Court defined the colourable legislation as, “a transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression ‘Colorable Legislation’ has been applied in certain judicial pronouncements”.
HISTORICAL BACKGROUND OF THE DOCTRINE OF COLOURABLE LEGISLATION
Indian Constitutional law traces its origin to the colonial era. During the colonial era, when the foundations of Indian jurisprudence were laid, the British legal system left an indelible mark on the Indian legal landscape.[5]. The Government of India Act 1935[6] Divided the power between the centre and the provincial governments and adopted the federal structure. Later this doctrine was recognised by judicial pronouncements to prevent legislative overreach from hindering the idea of a balance of power. The Britishers adopted this doctrine by taking inspiration from similar provisions in Canada and Australia where the doctrine was used to supervise the legislative authority of the government bodies to ensure power balance in their federal structures.[7].
RELATED PROVISIONS IN THE INDIAN CONSTITUTION
The constitution of India provides for a quasi-federal government system for the country based on the doctrine of separation of power, there are various provisions dealing with the same. Article 1 defines India as a Union of states.[8]. Article 245 deals with the territorial jurisdiction of the Parliament and state legislatures, providing extra-territorial jurisdiction to the Parliament[9]. Article 246 divides the subject matters on which the Parliament and state legislatures can legislate law, it provides for the Union list, State list and Concurrent list enshrined in the seventh schedule.[10]. The Union list enumerates matters of national interest on which only the parliament can make laws. The State list enumerates matters on which only the state legislatures can make laws. The Concurrent list enumerates matters on which both the Parliament and state legislatures can make laws but in case of any conflict, the law made by the parliament will prevail. Within this constitutional tapestry, the checks and balances embedded in Articles 121 to 122 and Articles 211 to 214 play a crucial role in preventing legislative excesses.[11]. When any legislation seems to comply with the limits set by the constitution but in reality it transgresses them. Then such legislation is colourable and the said act of the legislature is considered a “fraud on the Constitution”.
LIMITATIONS OF THE DOCTRINE OF COLOURABLE LEGISLATION
The Doctrine of Colourable Legislation acts as a safeguard to prevent legislative overreach but is not free from flaws, there are situations when it fails to prevent the abuse of power. The following are some of those limitations:
- Subordinate legislation- Subordinate legislation is a delegated legislation. A person or body to whom power is delegated makes it. Since the doctrine applies only to the Parliament and state legislature it does not apply to subordinate legislation leaving a grey area.
- No limitations in the Constitution- If the Constitution does not lay down any limit on the said matter then this gives an edge to the legislature to make legislation without being questioned on its colouration.
- Ignoring intention- The doctrine does not consider the bonafide or malafide intention of the legislative body. This puts the welfare of the public at stake. Various legislations are colourable but meant for the betterment of society, also there are those legislations that are not colourable but enacted for some personal gain and not for the common good.
- Judicial overreach- Some critics see it as a means of judicial overreach. Critics contend that the inherent subjectivity in interpreting the dominant purpose of a law may open the door to divergent judicial interpretations[12].
CONCLUSION
Our government system is based on the foundational stone of balance of power, to keep it working smoothly it is important to keep a check on the functioning of the governmental organs. The doctrine of colourable legislation acts as an effective safeguard in preventing the legislative authority from taking the benefit of grey areas for establishing its dominance over other organs or legislative bodies. It holds the legislature accountable and reinforces the system of balance of power.
Author(s) Name: Nancy (Faculty of Law, Banaras Hindu University, Varanasi)
References:
[1] Constitution of India 1950, art 1
[2] Durga Das Basu, Shorter Constitution of India (16th Edition, Lexis Nexis 2021)
[3]‘COLORABLE Definition & Legal Meaning‘(The Law Dictionary)<https://thelawdictionary.org/colorable/>accessed 26 August 2024
[4] K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 ORI 185
[5] G Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1999)
[6] Government of India Act 1935
[7] Sai Shriya Potla,‘Doctrine of colourable legislation’(IPleaders, 7 September, 2023) <https://blog.ipleaders.in/doctrine-of-colourable-legislation/>accessed 26 August 2024
[8] note 1
[9] Constitution of India 1950, art 245
[10] Constitution of India 1950, art 246
[11] Debjani Ojha, ‘Chromatic Jurisprudence: Navigating the Palette of Colourable
Legislation in India’ (2024) 30 (3) PAJ <http://www.penacclaims.com/wp-content/uploads/2024/02/Debjani-Ojha.pdf> accessed 26 August 2024
[12] note 11
