DOCTRINE OF COLOURABLE LEGISLATION
Author: Tanishka Jangid, II year of B.A.LL.B. from Lloyd Law College, Greater Noida
According to Oxford Dictionary, a doctrine means “a rule, principle, theory, or tenet of the law; as, the doctrine of merger, the doctrine of relation, etc”.Some doctrines are used to interpret constitutional laws by the judges and one such doctrine is ‘Doctrine of Colourable Legislation.’ The Doctrine of Colourable Legislation is also known as ‘Fraud on the Constitution.’[[i]]The doctrine is used to set a limitation on the law-making power of the legislature. This doctrine is based on the Latin maxim ‘Quando aliquid prohibetur ex directo, prohibetur et per obliquum’ which means – ‘what cannot be done directly, cannot be done indirectly.’ Colourable legislation comes into question when there is an inquiry for the competency of legislative power among state and centre. It challenges the suitability of an act dependent on the way that if the law-making body which passed it had the competency to pass the act on the said subject or not. If by chance, the legislature is not equipped to make laws on the said subject then the law is viewed as ultra vires. The doctrine does not involve any question of bonafide or malafide intention on the part of the legislature. If the legislature is competent enough to enact a particular law, then whatever the intention is impelled to act, the act is relevant.
The lineage of this regulation could be traced to the colonial period when self-government began accepting criticality in numerous pieces of the British Empire. The administrative subjects were partitioned between the Center and provincial units and to check any contradiction, the enacted Act was tried against this doctrine.[[ii]]Courts in India have taken the assistance of Australian and Canadian legal precedents for reference while managing colourable legislation, as the Constitutions of the two nations don't have a bill of rights, which gives them a wider purview for centralisation of power. The Doctrine of Separation of Power is the base for colourable legislation. Separation of power mandates the balance of power to be maintained between the different components of the State i.e., between the Executive, the Legislature, and the Judiciary. This division is the horizontal division (at the same level) and one institution looks after the other to ensure that the other institution is not exceeding its power.
The primary function of the legislature is to form laws and the legislative power of Parliament and State legislature is written in the constitution under Article 246. Power is also distributed amongst the three lists (Union List, State List, and Concurrent List) in the seventh schedule of the Constitution. Different subjects are given under these lists and if there are matters which are left then it is vested to parliament under the residuary power (Article 248). Whenever the legislature tries to exceed its power towards itself then the doctrine of ‘Colourable legislation’ is attracted to make sure that the balance of power is not hampered. One of the most rational and lucid elucidations relating to this doctrine was given in the case of K.C. Gajapati Narayana Deo and Other v. The State of Orissa [AIR 1953 SCC 375].
The Doctrine of Colourable Legislation, like some other protected law doctrine, is a tool devised and applied by the Supreme Court of India to decipher different constitutional provisions. It is a core value of huge utility while construing provision identifying the legislative competence.
This doctrine becomes an integral factor when a legislature can’t make law upon a specific subject. However, in any case in a roundabout way, by applying this doctrine, the destiny of the impugned legislation is chosen.
The teaching of Colourable Legislation is based upon the stones of the Doctrine of Separation of Power.
Doctrine does not apply to Subordinate Legislation. This element of the doctrine was decided in Mohan Lal Tripathi v. District Magistrate[[iii]], Rae Bareilly & Ors. Subordinate Legislation is the process in which the executive is given power by primary legislation to make laws to implement and administer.
The doctrine considers the motive of the law to be irrelevant whether it be bonafide or mala fide on the part of the legislature.[[iv]]
The test to determine the nature of the legislation in the terms of being colourable is done firstly, by determining the effects of the legislation and the object and purpose of the act. Secondly, by interpreting whether the formation of that particular law is in the hands of legislation or not.
The transgression of constitutional power by the Assembly might be patent, show or direct, however, may likewise be camouflaged, secret and circuitous and it is just to this last class of cases that the articulation of "Colourable Doctrine" is being applied.[[v]]
1. K.C. Gajapati Narayan Deo v. State of Orissa[[vi]]
The Orissa legislature had authorized the Orissa Agricultural Income Tax (Amendment) Act, 1950. This Act significantly increased the rate of tax on farming salary. It was contended that the primary motive behind this demonstration was to decrease the artificial means of income of middle people to pay them compensation under the Orissa Estate Abolition Act, 1952. This was considered as a malafide intent of the state. The Supreme Court acknowledged this conflict however pronounced the act valid under the doctrine of Colourable Legislation. It was seen by the Supreme Court that the Act was for the burdening of agricultural income as portrayed in entry 46 of the state list of the seventh Schedule. The Supreme court reasoned that the demonstration may be vile yet it was under the purview of the State to make law for taxing the agricultural income. This served as a reason for its legitimacy. This case also established that the intention or the motive behind a law won’t matter whether it be bona fide or mala fide but what is seen is the competence of the legislature. In Sonapur Tea Co. Ltd. v. Deputy Commissioner[[vii]], it was reiterated relying on Gajapati’s case that the doctrine of colourable legislation postulates that legislation attempts to do indirectly what it cannot do directly.
2. Kunnathat Thatehunni Moopil Nair v. State of Kerala[[viii]]
The Travancore-Cochin Land Tax Act,1955, was proclaimed to be unlawful considering Art.14 And Art. 19(1)(f). It was discovered that an individual earning a salary of Rs. 3100 every year was at risk to pay Rs. 5400 under its operative provision, so the Supreme court held that the provisions of the act were confiscatory and concluded that the act was a gadget embraced by the governing body to reallocate the property of citizens at the expense of tax. And this act was held to be colourable or fraudulent in the Constitution.
3. State of Bihar v. Kameshwar Singh[[ix]]
In this case the Bihar Land Reforms Act, 1950 was held void on the ground that it indicated to set down a principle for deciding compensation yet in actuality it didn't set out any such standard and consequently by implication tried to deny the candidate any remuneration. This is the only case where the court has been pronounced any act invalid on the ground of colourable legislation.
4. All Kerala Online Lottery Dealers v. State of Kerala & Ors.
This case is not so popular but it questions the legislature based on the doctrine. Justice R.K. Agarwal dealt with this doctrine in the case as the State of Kerala, under Section 5 of the Lotteries (Regulation) Act, 1998, prohibited the sale of all computerized and online lottery tickets in the state. The state declared that Kerala shall be a free zone from online and internet lotteries. The writ petition was filed against the provision. The High Court and Divisional Bench dismissed the writ then the appeal was made to the Supreme Court. The apex court by using the doctrine held that it was not a case of abdication of legislative power and would not be bereft of any guidelines if the legislation banning lotteries was applied uniformly. It was further ruled that if the ban on the online lottery applies uniformly, then it would not be a case of exercising power by a delegate without guidelines. Therefore, the Apex court felt that an interpretation, which advances the object of the Act, should be favoured. That means the state can prohibit online lotteries if it is not running the said type of lotteries.
Recent Usage of Doctrine
1. Goods and Services Tax Act, 2017– The Supreme Court upheld that the Goods and Services Tax is constitutional. It was also held that this act enacted by parliament is not colourable legislation. It was not beyond the legislative competence. It held that the levy of ‘Compensation to States’, is an increment to goods and services tax, which is permissible under the law.
2. Citizenship Amendment Act, 2020 – Kerala government filed a petition in the Supreme Court challenging the amendment based on the Doctrine of Colourable Legislation. The plea by the Kerala Government stated that the act violates Article 14, 21 and 25 of the Constitution of India. The Supreme Court denied putting a stay on the CAA and asked the Central Government to file a reply on the petitions regarding the same. The apex court decided to set up a Constitutional Bench to hear the plea.
3. SARFAESI Act, 2002[[x]] – On 5 May 2020 the Supreme Court held that cooperative banks will be included in the definition of ‘bank’ and ‘banking company’ under Section 2(1)(c) and 2(1)(d) of the SARFAESI Act. Court also stated that the act qualifies the test of legislative competence and cannot be said to be a colourable piece or is not outside the competence of the Parliament. This act was legitimized as Entry 45 of List 1 of the seventh schedule gives power to the legislature to make the provided change in SARFAESI Act.
The Doctrine of Colourable Legislation is adapted from those countries which have a federal system, though their federal system is a little bit different from ours. Hence, we have tried to modify the doctrine and moulded it in such a way so that it can be used in India also. This particular doctrine is vastly used in India while interpreting whether a law is constitutional or not. This doctrine helps the judiciary to keep a check on the power of the legislature. By keeping the check, courts ensure a balance of power between the three components of the State. If some power is not given to the legislature then this doctrine ensures that the legislature does not assume that power on its own and enact any law which is not under their authority.
The ambit of this doctrine is explicitly defined. Judges now and then use this doctrine. At the point when the repugnancy between the two pieces of legislation is looked at, the issue is whether the provision of the State is constitutional or not. The doctrine has its limitations, for example, the doctrine has no application when the issue being referred to, is secured by a section or passages in the concurrent list. The topic of accidental or subordinate infringement or to channel into the illegal field doesn't emerge. The assurance of its actual nature and character additionally is insignificant. The doctrine values the real idea of the law and there are cases where the law has been administered invalid to ensure that there is no violation of welfare legislation.
[[i]]Verma Suyash, ‘Constitutional Law – Doctrine of Colorable Legislation and the Constitutional of India’, Desi Kanoon (May 30,2014),http://www.desikanoon.co.in/2014/05/doctrine-of-colorable-legislation-india.html
[[ii]]Venkatanarayanan S., ‘Article 370: What the SC will have to consider while examining the Centre’s move’, The Wire (October 10, 2019), https://thewire.in/law/supreme-court-article-370-doctrine-of-colourable-legislation
[[iii]]AIR 1993 SCR (3) 338
[[iv]]K.C. Gajapati Narayana Deo and Other v. The State of Orissa [AIR 1953 SCC 375].
[[v]]The State of Bihar v. Kameshwar Singh, 1952 1 SCR 889
[[vi]]AIR 1953 SCC 375
[[vii]]AIR 1962 SCR 724
[[viii]]AIR 1960 SC 512
[[ix]]AIR 1952 Pat 417, 1952 21 ITR 382 Patna
[[x]]The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002