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Defined: The Doctrine of Colourable Laws

This article deals with the Doctrine of Colourable Legislation in a brief manner. The doctrine of colourable legislation is explained here with the help of case laws and illustrations.

Introduction

If anything is prohibited directly then it is also prohibited indirectly. Under the colour or guise of power given for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on. This doctrine is for the ‘Legislative’ organ which is out of the three organs of the State.

The relevance of the Doctrine of Colourable Legislation

Article 246 of the Indian Constitution has separate subjects for law-making in three lists under VII Schedule. That is, it has segregated numerous subject matters, each subject matter is associated with either State, Centre or Both.

For example: If in Union list, use of army has been bestowed upon the Central Government, then State government cannot claim upon such rights.

Lists

Followings are the lists under Schedule VII of Indian Constitution, through which Centre, State or both can legislate upon any subject matter:

  1. Union List (List I)
  2. State List (List II)
  3. Concurrent List (List III)

A question

If a subject matter is in the State List, then Union cannot legislate upon such matter; and if a subject matter is in the Union List, then State cannot legislate upon such matter.

But what if, incompetent legislature tries to legislate upon a subject matter out of its jurisdiction?

Or

What if, to do so, it tries to incorporate a law, which has a guise of a different colour, but the main intention is to legislate upon the subject matter, which is outside of its jurisdiction?

Role

This is where the Doctrine of Colourable Legislation comes into the picture.

If the legislature tries to legislate upon such subject matter, which is outside the scope of its power, and it does so indirectly so that it does not look like that it has legislated upon a law outside of its scope; then such instance is called Colourable Legislation.

In such a situation, Constitutional Courts like the Supreme Court or High Court can invalidate such law by the usage of this doctrine. (Doctrine of Colourable Legislation)

Example:  Under Union List, Entry 2A, deployment of armed forces come under the purview of Central Government. State Government cannot legislate upon such subject matter. In-State List, Entry 1, makes the ‘public order’ aspect under the State List. Now State cannot make a law for public order, which involves deployment of armed forces. It will become a Colourable Legislation. In such a situation, Constitutional Court like Supreme Court or High Court; by virtue of Doctrine of Colourable legislation, will invalidate such law.

Limitations on the Doctrine of Colourable Legislation

This Doctrine will not work on such instances, where Legislature has no Constitutional Limitation.

It is not applicable to Subordinate Legislation

Not concerned if the Law is relevant or irrelevant

The presumption is always in the favour of Constitutionality of Law and the burden to prove is upon the Petitioner.

Case Laws on The Doctrine of Colourable Legislation

K.C. Gajapati Narayana Deo and Ors. v. The State of Orissa

If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise 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.

State of Bihar v. Kameshwar Singh

In this case, the Court applied the concept of Doctrine of Colourable legislation and declared a law invalid. The law held invalid was Bihar Land Reforms Act 1950. It ostensibly purported to lay down the principle of compensation, it did not lay down any such principle and therefore implicitly attempted to deprive the petitioner of any compensation.

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