CONSTITUTIONAL LAW III

PROJECT
On

DOCTRINE OF COLOURABLE
LEGISLATION

TABLE OF CONTENTS

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OBJECTIVE ............................................................................................................................................... 3

INTRODUCTION ....................................................................................................................................... 3

THE DOCTRINE OF COLOURABLE LEGISLATION ...................................................................................... 6

ARTICLE 246 AND THE DOCTRINE ........................................................................................................... 7

JUDICIAL PROCEEDINGS .......................................................................................................................... 9

LIMITATIONS .........................................................................................................................................12

CONCLUSION.........................................................................................................................................14

BIBLIOGRAPHY ......................................................................................................................................16

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 OBJECTIVE

To examine the Doctrine of Colourable Legislation and its applicability with regard to the
interpretation of the lists i.e., the interpretation of the legislative powers as given under
Article 246 and the Seventh Schedule.

INTRODUCTION

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The Constitution is the supreme and fundamental law of our country. Since it is written in the
form of a statute, the general principles of statutory interpretation are applicable to
interpretation of the Constitution as well. As is the case with any other statute, the court tries
to find out the intention of the framers of the Constitution from the words used by them. For
example, in the case of State of Bihar v. Kameshwar Singh1, the Supreme Court used one
of the standard principles of interpretation that where more than one reasonable interpretation
of a Constitutional provision are possible, that which would ensure a smooth and harmonious
working of the Constitution shall be accepted rather than the one that would lead to absurdity
or give rise to practical inconvenience, or make well existing provisions of existing law
nugatory, while interpreting the Constitution. However, even if an argument based on the
spirit of the Constitution is very attractive, it must be validated with the spirit of the
Constitution as reflected by the words of the Constitution. In the same case mentioned above,
the Supreme Court observed that spirit of the Constitution cannot prevail if the language of
the Constitution does not support that view.

It is important to note that the Constitution itself endorses the general principles of
interpretation through Article 367(1), which states that unless the context otherwise requires,
the General Clauses Act, 1897 shall apply for the interpretation of this Constitution as it
applies for the interpretation of an act of the legislature. Courts have ruled in cases such
as Jugmendar Das v. State2, that not only the general definitions given in General Clauses
Act, but also the general rules of construction given therein are applicable to the Constitution.

Having said the above, the fact remains that Constitution is a special act. It is a fact that every
provision of the Constitution is Constitutional and no part of it can be held unconstitutional.
This casts an important duty on the interpreters of the Constitution to interpret its provisions
such that the spirit of the Constitution is not maligned. In Keshvananda Bharati v. State of
Kerala3, the Supreme Court identified the basic structure of the Constitution that reflects its
true spirit and held that nothing that hurts the basic structure of the Constitution is
Constitutional. In the same case, the Supreme Court held that one should give the freedom to

1 AIR 1952 SC
2 1951
3 AIR 1973 SC

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the parliament to enact laws that ensure that the blessings of liberty be shared with all, but
within the framework of the Constitution. It is necessary towards that end that the
Constitution should not be construed in a narrow and pedantic sense.

The letters of the Constitution are fairly static and not very easy to change but the laws
enacted by the legislature reflect the current state of people and are very dynamic. To ensure
that the new laws are consistent with the basic structure of the Constitution, the Constitution
must be interpreted in broad and liberal manner giving effect to all its parts and the
presumption must be that no conflict or repugnancy was intended by its framers. Applying
the same logic, the provisions relating to fundamental rights have been interpreted broadly
and liberally in favour of the subject. Similarly, various legislative entries mentioned in the
Union, State, and Concurrent list have been construed liberally and widely.

The following are some of the key principles applied specially in interpreting the provisions
of the Constitution

1. Principle of Harmonious construction

2. Doctrine of pith and substance

3. Doctrine of Colourable legislation

4. Principle of Ancillary powers

5. Principle of Occupied field

6. Residuary power

7. Doctrine of repugnancy

8. Principle of Territorial Nexus

9. Doctrine of Stare Decisis

10. Doctrine of prospective overruling

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 THE DOCTRINE OF COLOURABLE LEGISLATION

Doctrine of Colourable Legislation, like any other constitutional law doctrine, is a tool
devised and applied by the Supreme Court of India to interpret various Constitutional
Provisions. It is a guiding principle of immense utility while construing provisions relating to
legislative competence.

Doctrine of Colourable Legislation is built upon the founding stones of the Doctrine of
Separation of Power. Separation of Power mandates that a balance of power is to be struck
between the different components of the State i.e. between the Legislature, the Executive and
the Judiciary. The Primary Function of the legislature is to make laws. Whenever, Legislature
tries to shift this balance of power towards itself then the Doctrine of Colourable Legislation
is attracted to take care of Legislative Accountability.

Blacks Law Dictionary defines Colourable as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.
3. Colour has been defined to mean Appearance, guise or semblance.

The literal meaning of Colourable Legislation is that under the colour or guise of power
conferred for one particular purpose, the legislature cannot seek to achieve some other
purpose which it is otherwise not competent to legislate on.

This Doctrine also traces its origin to a Latin Maxim:

Quando aliquid prohibetur ex directo, prohibetur et per obliquum

This maxim implies that when anything is prohibited directly, it is also prohibited
indirectly. In common parlance, it is meant to be understood as Whatever legislature cant
do directly, it cant do indirectly.

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 ARTICLE 246 AND THE DOCTRINE

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated
the Legislative Competence of the Parliament and the State Legislative Assemblies by
outlining the different subjects under List I for the Union, List II for the States and List III
for both, as mentioned in the Seventh Schedule.

This doctrine comes into play when a Legislature does not possess the power to make law
upon a particular subject but nonetheless indirectly makes one. By applying this principle the
fate of the Impugned Legislation is decided.

Article 246 of the Indian Constitution reads as follows:

Subject-matter of laws made by Parliament and by the Legislatures of States

1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule (in this Constitution referred to as the "Union List").

2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in this Constitution referred to
as the "Concurrent List").
3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to
make laws for such State or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in this Constitution referred to as the
"State List").
4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such matter is a matter
enumerated in the State List.

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
of the subject-matter of the statute, or in the method of enacting it, transgressed the limits of

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its constitutional powers. Such transgressions 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
colourable legislation has been applied in certain judicial pronouncements. The idea
conveyed by the expression is that although a legislature in passing a statute purports to act
within the limits of its powers, yet in substance and in reality it transgresses those powers, the
transgression being veiled by what appears on proper examination to be a mere pretence or
disguise.4 In other words, it is the substance of the act that is material and not merely the
form or outward appearance and if the subject-matter in substance is something which is
beyond the powers of that legislature to legislate upon, the form in which the law is clothed
would not save it from condemnation. The legislature cannot violate the constitutional
prohibition by employing an indirect method.5 You cannot do indirectly what you cannot do
directly. It may be honest motive or mala fides to the legislature making the law. The Court
will scrutinise the law to ascertain whether the legislature by device purports to make a law,
which though in form appears to be within its sphere, in effect and substance reaches beyond
it. If, in fact, it has power to make the law, its motives in making the latter are irrelevant.6
The rule of colourable legislation has no application if the legislature making the law has the
competence to make the law.7

The Doctrine of Colourable Legislation is relevant only in connection with the question of
legislative competence.8 Objections based on Colourable Legislation have relevance only in
situations when the power is restricted to particular topics, and an attempt is made to escape
legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the
real subject matter. Whether less than what was done might have been enough, whether a
more drastic provision was made than the occasion demanded, whether the same purpose
could have been achieved by provisions framed differently or by some other means, they are
wholly irrelevant considerations for testing the validity of the law. They do not touch the
ambit of the power but only the manner of its exercise.

4
Ashok Kumar v. Union of India, (1991) 3 SCC 498
5
K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 ; Anil Kumar v. Commr., AIR 1959 Ass 147
6
Gullapalli Nageswar Rao v. A.P. SRTC, AIR 1959 SC 308
7
K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375
8
B.R. Shankaranarayana v. State of Mysore, AIR 1966 SC 1571

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 JUDICIAL PROCEEDINGS

In the case of K.C Gajapti v. State of Orissa,9 there was the question of the validity of the
Orissa Agricultural Income-Tax (Amendment) Act, 1950 which greatly enhanced the rate of
tax on agricultural income. It was argued that the Act is not a bona fide taxation statute at all,
but is a colourable piece of legislation, the real object of which is to reduce by artificial
means the net income of intermediaries, so that the compensation payable to them under the
Orissa Estates Abolition Act, 1952 be kept as low a figure as possible, agricultural income
tax being deducted from the gross income in order to arrive at the net income on the basis of
which the amount of compensation is to be determined. The Supreme Court did not accept
this contention and declared the Act as valid. It was observed that the Act is certainly a
legislation on taxing of agricultural income, as described in Entry 46 of List II of the
Seventh Schedule. The State Legislature has undoubted competency to legislate on
agricultural income tax, and the Act purports to increase the existing rates of income tax. The
increase in rates may be unjust or inequitable, but that does not affect the competency of the
legislature. Even if it is assumed that the act was made under the guise of a taxation statute
with a view to accomplish an ulterior purpose, namely, to reduce the amount of
compensation, still it cannot be regarded as a colourable piece of legislation. Under Entry 42
of List III, the legislature can adopt any principle of compensation in respect of the properties
acquired. Whether the deductions are large or small, inflated or deflated, they do not affect
the constitutionality of a legislation under this entry. It would be colourable legislation only if
it is shown that the real object is to attain something which is beyond any constitutional
limitation or that it lies within the exclusive field of another legislature. It could be noticed
that the two Acts did not make any reference to each other and were in no way
interconnected. Taking each Act on its merit, the court had no hesitation to declare them valid
as being within the competence of the legislature. It has made very clear that the motives
which impelled to enact the law are irrelevant. However, if there was some mention of one
Act in the other or the two Acts were expressly interconnected, the court could have read the
ulterior purpose and in such a case motive would have become purpose, namely to bypass the
constitutional limitation of the payment of compensation as provided in Article 31(2), thereby

9 AIR 1953 SC 375

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characterising the taxation statute as colourable legislation, the purpose being to overcome
the payment of compensation.

The Court while explaining the doctrine held that if the constitution of a state distributes the
legislative 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 in respect to the subject matter of the statute or in the method
of enacting it, transgressed the limits of the constitutional power or not. Such transgression
may be patent, manifest and direct, but may also be distinguished, covered and indirect and it
is the latter class of cases that the expression colourable legislation has been applied in
certain judicial pronouncements.

Further in K.C. Gajapati Narayan Deo v. State of Orissa10the Courtapproved:

..The doctrine of colourable legislation does not involve any question of bona fides
and mala fides on the part of the Legislature. If the law is settled that no mala fides could be
attributed to the Legislature, an argument that the amendment has been passed only with a
view to punish the ,first respondent is not available to the first respondent. The legislature as
a body cannot be accused of having passed a law for an extraneous purpose. Therefore, no
mala fides could be attributed to the legislature. A legislature does not act on extraneous
consideration. But for lack of legislative competence or for being arbitrary, a legislative
action cannot be struck down on ground of mala fide.

In Mohan Lal Tripathi v. District Magistrate, Rae Bareilly and Ors.11 The Court held that
a Legislature does not act on extraneous consideration. An Ordinance issued in 1990 was
replaced by Act 19 of 1990. The Act came into force on 24th July 1990 but it was made
retrospective with effect from 15th February 1990, the date when the ordinance was issued.
The Court further held that but for lack of legislative competence or for being arbitrary a
legislative action cannot be struck down on ground of mala fides.

10 AIR 1953 SC 375

11 1993 AIR 2042; 1992 SCR (3) 338

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State of Bihar v. Kameshwar Singh;12 is the only case where a law has been declared
invalid on the ground of colourable legislation. In this case the Bihar Land Reforms Act,
1950, was held void on the ground that though apparently it purported to lay down the
principle for determining compensation yet in reality it did not lay down any such principle
and thus indirectly sought to deprive the petitioner of any compensation.

In relation to constitutional prohibitions binding a legislature it is clear that the legislature

cannot obey the prohibitions merely by employing indirect methods of achieving exactly the
same result. Therefore, in all such cases the court has to look behind the names, forms and
appearances to discover the true character and nature of the legislation.13

The doctrine of colourable legislation applies to taxation laws as well as other laws. But a
challenge on the basis of colourable legislation, which is not a legitimate exercise of power,
can succeed not merely by showing that the tax levied is unreasonably high or excessive,
which is a legitimate exercise of power, but by providing other relevant circumstances which
justify the conclusion that the statute is colourable and as such amounts to fraud.14 As an
illustration of such a statute though ostensibly passed in exercise of the legislative power
conferred on the legislature but struck down as a colourable exercise of the said power,
reference may be made to Kunnathat Thatehunni Moopil Nair v. State of Kerela15, where
the provisions of the Travancore-Cochin Land Tax Act, 1955 were declared to be
unconstitutional in view of Articles 14 and 19(1)(f). The Supreme Court held that the
provisions of this Act were confiscatory in character, and reached the conclusion that in
passing the Act, the legislature had merely adopted a device and a cloak to confiscate the
property of the citizen taxed.

12
1952 1 SCR 889
13
Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., AIR1954 SC 119
14
Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563
15
AIR 1961 SC 552

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 LIMITATIONS

Limitations on the Application of Doctrine of Colourable Legislation:

1) The doctrine has no application where the powers of a Legislature are not fettered by
any Constitutional limitation.
2) The doctrine is also not applicable to Subordinate Legislation.
3) The doctrine of colourable legislation does not involve any question of bona fides
or mala fides on the part of the legislature. The whole doctrine resolves itself into the,
question of competency of a particular legislature to enact a particular law.
If the legislature is competent to pass a particular law, the motives which impelled it to
act are really irrelevant. On the other hand, if the legislature lacks competency, the question
of motive does not arise at all. Whether a statute is constitutional or not is thus always a
question of power16.
4) A logical corollary of the above-mentioned point is that the Legislature does not act
on Extraneous Considerations17. There is always a Presumption of Constitutionality
in favour of the Statute. The principle of Presumption of Constitutionality was
succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri
Justice S.R. Tendolkar and Ors.18:
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.
There is a very famous rule of interpretation as well that explains why the courts strongly
lean against a construction which reduces the statute to a futility. The Latin Maxim
construction ut res magis valeat quam pereat implies that a statute or any enacting
provision therein must be so construed as to make it effective and operative. The courts
prefer construction which keeps the statute within the competence of the legislature19.

16 K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375
17 Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC 2042
18 AIR 1958 SC 538
19
CIT v. Teja Singh, AIR 1959 SC 352

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 5) When a Legislature has the Power to make Law with respect to a particular subject, it
also has all the ancillary and incidental power to make that law an effective one.20

6) As already discussed above that the transgression of Constitutional Power by

Legislature may be patent, manifest or direct, but may also be disguised, covert
and indirect and it is only to this latter class of cases that the expression Colourable
Legislation is being applied.21

20
I.N. Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650
21
The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889

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 CONCLUSION

The Doctrine of Colourable Legislation is also called Fraud on the Constitution. The failure
to comply with a Constitutional condition for the exercise of legislative power may be overt
or it may be covert. When it is overt, we say the law is obviously bad for non- compliance
with the requirements of the Constitution, that is to say, the law is ultra vires. When,
however, the non-compliance is covert, we say that it is a fraud on the Constitution, the
fraud complained of being that the Legislature pretends to act within its power while in fact it
is not so doing. Therefore, the charge of fraud on the Constitution is, on ultimate analysis,
nothing but a picturesque and epigrammatic way of expressing the idea of non-compliance
with the terms of the Constitution22.

The doctrine of colourable legislation does not involve any question of bona fides or mala
fides on the part of the legislature. The whole doctrine resolves itself into the question of
competency of a particular legislature to enact a particular law.

If the legislature is competent to pass a particular law the motives which impelled it to act,
are really irrelevant. On the other hand, if the legislature lacks competency, the question of
motive does not arise at all.

Whether a statute is constitutional or not is thus always a question of power. If the

constitution of a State distributes the legislative power amount 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 right, questions do arise
whether the legislative 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.

22
The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889

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Such transgression may be patent, manifest or direct, but it may also be disguised, covert and
indirect and it is to the latter class of cases that the expression colourable legislation has
been applied. The idea conveyed by this expression is that although apparently a legislature
in passing a statute purported to act within the limits of its power, yet in the substance and
reality, it transgressed these powers.

The legal position, therefore, is that the legislature can only make law within its legislative
competency. Its legislatives field may be circumscribed by specific legislative entries or
limited by fundamental rights by the constitution. The legislature cannot overstep the field of
its competency, directly or indirectly.

The court will scrutinize the law to ascertain whether the legislature by device purports to
make a law which though in form appears to be within its sphere,, in effect and substance
reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are
irrelevant.

The doctrine of colourable legislation is relevant only in connection with the question of
legislative competency.

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 BIBLIOGRAPHY

http://www.shareyouressays.com/111360/short-essay-on-the-doctrine-of-colourable-
legislation

http://en.wikipedia.org/wiki/Doctrine_of_colourability

http://www.lawyersclubindia.com/experts/Colorable-legislation
23456.asp#.VFidBvmUegY

http://en.wikisource.org/wiki/Constitution_of_India/Part_XI

Shukla, V.N.; Constitution of India; 12th Edition; Eastern Book Company, Lucknow

http://gaurlaw.wordpress.com/2013/12/12/doctrine-of-colourable-legislation-india/

http://www.desikanoon.co.in/2014/05/doctrine-of-colorable-legislation-india.html

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