ASSIGNMENT

THE DOCTRINE OF COLOURABLE LEGISLATION

Submitted By:
Name: Kudrat Mann
Enrollment no.: 1901052
Programme: B.A.LLB (Hons.)
Section: A

Submitted to:
Ms. Poonam
Assistant Professor

DEPARTMENT OF LAW
DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY
RAI, SONEPAT, HARYANA

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Introduction

India has a federal form of government and has been a united country for over seven decades
with power being divided between the Centre and the States on the account of federal structure
of governance. Federal form of government has two or more levels of government. Each level of
government has its own jurisdiction (area of control). The jurisdiction of the respective levels of
government is specified in the Constitution. The main feature of federalism is the segregation of
power between the Centre and the states. The fundamental provisions of the Constitution cannot
be unilaterally changed by one level of government. Federal system has the objective to
safeguard and promote unity and accommodate regional diversity.

There was consensus on power sharing even before independence. Leaders were aware of the
regional and linguistic diversity. The Constituent Assembly decided to form a government that
would be based on the principles of unity and cooperation between the Centre and the states
which was to have constitutional status and a clearly identified area of activity. However, if a
legislative body isn’t allowed to make laws in a particular area and does so anyway indirectly
under the grab of another legislation, the doctrine of colourable legislation comes into play. The
doctrine of colourable legislation is applied to see whether they are competent to enact the
specific law or not. Through this article the author seeks to answer the question whether this
doctrine creates an impediment to the legislative authority or not.1

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.2 From
that point, the doctrine discovered its approach to India that utilized the Canadian and Australian

1
V.S. Shekhawat, “Judicial Review in India: Maxims and Limitations” 55 The Indian Journal of Political Science 177
(1994).
2
V. Jagannadham, “Divisions of Powers in the Indian Constitution” 8 The Indian Journal of Political Science 742
(1947).

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legitimate points.of.reference.to.take.on.the.standard.of.this.doctrine.3

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 Constituent
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 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.4

Colourable legislation: The Doctrine

Separation of powers means dividing or sharing of powers. In order to prevent the misuse of
power by anyone organ of the government, the Constitution says that each of these organs should
exercise different powers. This develops a system of checks and balances. The Constitution has
divided powers between the Centre and the states with their particular subject matters. But
sometimes, the legislative body enacts legislation which falls outside its area of competence.5
This means that it has transgressed its powers and has indirectly done something which could not
have been done directly. This is called colourable exercise of legislative power or indirectly

3
S.A. Barber, “A Judicial Review: ‘The Federalist’” 55 The University of Chicago Law Review 836 (1988).
4
Jagat Narain, “Judicial Law Making and the Place of Directive Principles in Indian Constitution” 27 Journal of the
Indian Law Institute 198 (1985).
5
Paul C. Weiser, “The Supreme Court and the Law of Canadian Federalism” The University of Toronto Law Journal
23 (1973).

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making laws when prohibited from doing so directly. So, to check the transgression of legislative
authorities, the doctrine of colourable legislation came into existence.

Suppose you have a fruit garden and beside that there is a playground. There are truants playing
in the playground and every time they throw their ball into your garden and come to take it back,
they take some fruits from there as well. But they escape by saying that they had only come to
collect the ball. Here, the truants seem to engage in one act under the garb of another as
collecting their own balls from the premises is permissible and cannot be prohibited. The
colourable legislation also deals with such questions wherein one law is supposedly passed under
the garb of another. Colourable legislation comes from a legal maxim- “Quando aliquid
prohibetur ex directo, prohibetur et per obliquum” which means which is prohibited directly is
also prohibited indirectly. It means when a legislature does not have the power to make laws on a
particular subject directly, it cannot make laws on it indirectly. Colourable legislation is one of
the doctrines under the Indian Constitution. It basically means coloured legislation which is not
its true colour. So, whenever the Union or state encroaches their respective legislative
competence and makes such laws, colourable legislation comes into the picture to determine
legislative accountability of that law.

The Supreme Court of India has established certain tests to determine the true nature of
legislation impeached as colorable in various judicial pronouncements: -

• The court must consider the substance of the challenged law rather than its form or the label
given by the legislature. The court will look at two things when determining the substance of an
enactment: a) the effect of the legislation and b) the act's object and purpose.

• The doctrine of colorable legislation has nothing to do with the law's motivation; it is, in
essence, a question of the legislature's power to enact the law in question.

Division of legislative power between the Centre and states

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Article 246 of the Indian Constitution is about subject matter legislation referring to who has
power with regards to which subject matter to make laws. We know that the power has been
distributed under three lists. The powers that Centre and States have been categorised by the
7th schedule under 3 lists- Union list (List I), State list (List II), Concurrent list (List III) which is
mentioned under Article 246 of the Constitution. The Union list incorporates areas which are of
national importance like defence, foreign affairs, currency, atomic energy and so forth. It has a
total of 97 items on which the Parliament has exclusive right to make laws. Similarly, those
items are covered in State list which are of local importance like trade, agriculture, police etc.
There are a total of 61 items on which the State has exclusive power to make laws. Concurrent
list contains 52 items like education, adulteration, adoption etc. concerning the Union and State
both and pertaining to which both can make laws. Another set of powers is residuary powers
which include all other matters not mentioned in any of the lists like cyber laws. The States and
Union are both required to operate within their respective legislative competence.6

If the legislature makes law in colour or under guise on a subject without having required
competency to make laws on that particular subject then the Supreme Court can invalidate the
entire law. Colourable legislation comes into question when there is a question of competency of
a particular legislation to enact a particular law. It challenges the accuracy of an enacted law with
regards to the body that passed the law and analyzes whether the legislative body has the power
to make laws on that subject or not. In case the legislature is not competent on the said subject,
then the law is said to be ultra vires. When a legislature makes a law which appears to be within
its authority but in reality, it is not, then the law would not have any validity. Even though a
colour is given to the law for bringing it under competency it would be declared as void.
Colourable legislation emerges whenever the legislative bodies had no power to create laws on
an item because either it was not included in the list as per Schedule 7 or for the limitations of
Part III of the Constitution or any other provision of the Constitution. When the legislature
indirectly disobeys the terms of the Constitution and claims any Act to be within its power then it
is a fraud on the Constitution.7

6
Upendra Baxi, “Right to Speedy Trial: Geese, Gander and Judicial Sauce” Journal of the Indian Law Institute 25
(1983).
7
T.S. Rama, “Supreme Court and the ‘Higher’ Logic of Fundamental Rights” Journal of the Indian Law Institute 25
(1983).

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Concerns and limitations on the application of the doctrine of colourable
legislation

The doctrine does not apply to subordinate legislation. It is based only on the question of
competency of a particular legislative body to enact a particular law. The presumption is always
in favour of the constitutionality of the law and the burden is on the person who wants to show
that there has been a clear violation of constitutional principles. Whoever is taking any new law
to the court and claiming that to be a colourable legislation, he has to prove how the law is a
colourable legislation. 8

It has no application where there is no constitutional limitation and where powers of a legislature
are not bound by any limitation. For example, there will be no application of colourable
legislation if such power works only according to the Constitution. The legislation is not
actionable for extraneous consideration. The doctrine is not related to bona fide or mala fide
intention of the legislature. It only sees whether the enacted law is under the competency of the
legislature or not.

It is not concerned about whether the law is relevant or irrelevant. If there is an absence of
competency, then the relevance of motive is dead. Thus, the constitutionality of the statute is
completely a question of legislative competency.9

Case laws

 In the case of Ram Krishna Dalmia v. S.R. Tendolkar10, the petitioner had
challenged Section 3 of Commission of Enquiry Act,1952 and the notification under
which an enquiry commission was set up by the Central Government under S.R.
Tendolkar was on the ground that it was a denial of equality. Inquiry commission was
appointed under the Act against the company of the petitioner. But Supreme Court
held that the notification and the Act were valid as they were only for enquiry and do

8
Ekta Khatri, “Doctrine of Colourable Legislation” Jus Corpus Law Journal 2 (2021).
9
Insaf Ahmed, “Understanding the Doctrine of Colourable Legislation: An Indian Perspective” International
Journal of Law, Management & Humanities 3 (2020).
10
AIR 1958 SC 538

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 not impose dictatorial possession of the government and the petitioner could not show
discrimination. It also held that the burden is on the person who wants to show that
there has been a clear violation of constitutional principles. It is an important case of
reasonable classification under Article 14. As not only a law has to be reasonable but
its application must also provide equal protection of laws, it did not come in the ambit
of colourable legislation.

 In K.C. Gajapati Narayan Deo v. State of Orissa11, the constitutional validity

of Orissa Agricultural Income Tax (Amendment) Act,1950 was challenged on the
ground that it is a colourable piece of legislation. The real object of which is to reduce
the net income of intermediaries, so that the compensation paid under the Orissa
Estate Abolition Act, 1952 might be kept down to a low figure. The court held that it
would be a colourable legislation only if it is shown that the real object is not
attainable to it by reason of any constitutional limitation or that it lies within the
exclusive field of another legislature. This Act falls within the ambit of the state
legislature as Agriculture is the matter of State List and reduction of compensation is
just another facet of the Act. So, it is not colourable legislation and not invalid.

 In the case of R.S. Joshi v. Ajit Mills 12, the respondent was not enlisted as a dealer of
Sale Tax, which was gathered from different clients, and this adds up to infringement
of Section 46 and Section 37(1) of Sales Tax Act, 1955. The High Court struck down
Section 37(1) of the Act. The question was, if any tax has been collected wrongfully
by a taxable person from his customer, then whether the amount of tax should be paid
to the government or not and also whether it will be lawful to retain the money when
it is known that the amount is not a tax or not. It was held that the Section 37(1) of the
Act is valid and the law is the same for both the taxpayer and tax administrator and if
the tax cannot be levied by the law, then it is not leviable by the government as well.
If the tax is not lawful then its collection cannot be lawful. Thus, colourable
legislation was applied in this case.

11
AIR 1953 Ori 185
12
AIR 1977 SC 2279

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  In State of Bihar v. Kameshwar Singh 13, the Bihar Land Reforms Act, 1950 was
enacted to remove the landlord custom from the state. The State gave half of the
arrears of rent due as compensation to the landlord. The compensation for property
acquired comes under Concurrent List’s Entry 42. So, here it was to be determined
whether the Act is for a public purpose or not. The Supreme Court held that the Act
instead of determining the compensation, indirectly removes the petitioner from his
property without any compensation. In reality the Act purported to lay down a
principle for determining compensation and indirectly deprived the petitioner of
claiming compensation. Thus, the Act was colourable legislation and was held
invalid.

 In the case of K.T. Moopil Nair v. State of Kerala14, the petitioner was the owner of a
25,000-acre forest land. Due to the Preservation of Private Forest Act,1949 the yearly
income of petitioners was only 3,100 Rs per year. Then the Travancore-Cochin Land
Tax Act, 1955 came into existence and Section 4 of the Act imposed yearly tax
liability of Rs. 2 per acre and as a result, the petitioner had to give a tax of Rs. 50,000
per year. Also, Section 7 exempted 78 types of land from the operation of this Act
after notification. Then through an amendment Section 5A came which was the
Provisional Assessment of the basic tax in respect of land which had not been
surveyed and no time for the conduct of the survey was fixed. In this case, tax liability
was greater than the petitioner’s income. It held that Section 4 and Section 7 of the
Act violated Articles 14 and 19(1)(f) of the Indian Constitution. The Travancore-
Cochin Land Tax Act,1955 was held to be invalid on the ground that the Act
apparently purported to be a Taxing Act but in reality, it was not Taxing Act but was
confiscatory in nature.

 In the case of M.R. Balaji v. The state of Mysore15, an order of the Mysore
Government was challenged under Article 15(4) for reserving seats for admission to
the State medical and engineering colleges. The state issued an order that all the
communities except the Brahmin community, fell within the classes of educationally

13
AIR 1952 SC 889
14
AIR 1961 SC 552
15
AIR 1963 SC 649

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 and socially backward classes and scheduled castes and scheduled tribes and 75%
seats were reserved for them. On July 31, 1962 the State of Mysore passed another
order which superseded all the previous orders and left only 32% seats for the merit
pool. The petitioner said that the classification made by the state was irrational and
reservation of 68% was a fraud on the Article 15(4) of the Constitution. The question
was whether Article 15(4) gives constitutional power to the States to pass such
reservation power or not. The court held that the reservation is a fraud on the
constitutional power conferred on the state by Article 15(4).
In view of these cases, it can be summarised that if a legislative body has the competence to
make a law, it also has the power to make ancillary laws to ensure that the law it made is
effective as long as such ancillary laws aren’t a colourable exercise of power.

Conclusion

Colourable legislation suggests an encroachment on the legislative power. The doctrine of

colourable legislation strictly prohibits doing indirect things when it is not allowed to do so
directly. It tests whether the legislature has enacted a law as per its authorised competency or not.
So, wherever there is a restriction to make laws, the legislature has to follow the same otherwise
it would be declared as ultra vires of legislative power. If any law is made out of any guise, then
the colourable exercise would be imposed on legislative authority.

Legislative authority is the body which legislates laws. They are elected by the people and work
on behalf of the people. The doctrine of colourable legislation acts like a check on them and if it
finds incompetency then the law becomes invalid without there arising a need to determine its
necessity and requirements. It only checks the competency of the law-making body and restricts
overstretching power. As this doctrine doesn’t check whether the law is mala-fide or bona-fide
and only examines the competency of its legislative authority, it becomes an impediment to the
functions of legislative authority.

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References

Ekta Khatri, “Doctrine of Colourable Legislation” Jus Corpus Law Journal 2 (2021).
Insaf Ahmed, “Understanding the Doctrine of Colourable Legislation: An Indian Perspective”
International Journal of Law, Management & Humanities 3 (2020).
Jagat Narain, “Judicial Law Making and the Place of Directive Principles in Indian Constitution”
27 Journal of the Indian Law Institute 198 (1985).
K.C. Gajapati Narayana Rao v. The State of Orissa, AIR 1953 Ori 185
K.T. Moopil Nair v. State of Kerala, AIR 1961 SC 552
M.R. Balaji v. The State of Mysore, AIR 1963 SC 649
Paul C. Weiser, “The Supreme Court and the Law of Canadian Federalism” The University of
Toronto Law Journal 23 (1973).
R.S. Joshi v. Ajit Mills Ltd., AIR 1977 SC 2279
S.A. Barber, “A Judicial Review: ‘The Federalist’” 55 The University of Chicago Law Review 836
(1988).
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538
State of Bihar v. Kameshwar Singh, AIR 1952 SC 889
T.S. Rama, “Supreme Court and the ‘Higher’ Logic of Fundamental Rights” Journal of the Indian
Law Institute 25 (1983).
Upendra Baxi, “Right to Speedy Trial: Geese, Gander and Judicial Sauce” Journal of the Indian
Law Institute 25 (1983).
V. Jagannadham, “Divisions of Powers in the Indian Constitution” 8 The Indian Journal of
Political Science 742 (1947).
V.S. Shekhawat, “Judicial Review in India: Maxims and Limitations” 55 The Indian Journal of
Political Science 177 (1994).

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