DOCTRINE OF COLOURABLE LEGISLATION
As per the Black’s Law Dictionary, “colourable” means-
- Appearing to be true, valid or right.
- Intended to deceive: counterfeit
- The term “colour” has been defined as “appearance, guise or semblance”.
Therefore, referring to the meaning in the Black’s Law Dictionary, colourable legislation means that under the guise or colour of the power that is bestowed over for one particular purpose, the legislature is not allowed to achieve some other purpose which the legislature is not allowed through the statute/legislation.
The doctrine of colourable legislation is based on the Latin maxim, “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”. It means that when something is prohibited directly, it is also prohibited indirectly. In other words it means, “whatever legislature cannot do directly, it cannot do indirectly too.”
The Doctrine of Colourable Legislation is based upon the founding block of the Doctrine of Separation of Power. The doctrine of Separation of Power states that there should be a balance between the three pillars of the Constitution i.e, the Legislature, the Executive and the Judiciary. Whenever the doctrine of separation of power seems to get hindered then the doctrine of colourable legislation comes into picture. In other words, when the Legislature tends to shift the balance of power towards itself then the doctrine of colourable legislation is attracted and it takes care of the Legislative Accountability.
The Indian Constitution is federal in nature. By the virtue of this feature of the Indian Constitution, a particular demarcation of governmental functions and powers amongst different pillars of the Constitution. In general, in a federal or quasi federal structure, there are two levels of Government and the existence and authority of all the levels of the Government is guaranteed by the Constitution of India.
Indian system is very much influenced to the colonial ruling system of the English for many reasons. One of the influence of this must be the policy which created the three pillars of the democracy i.e. executive, legislature and the judiciary. In Indian constitutional pattern a direct separation of power prevails by which a balance has been maintained between the different organs of the govt. among these the law making power primarily vests on the legislature.
The doctrine of colourable legislation refers to the question of competency of the legislature while enacting a provision of law. Legislature of a federal state is accountable to its people and the legislation has different power which is vested upon it by the constitution. So the question is what would be the extent and context of legislative accountability with reference to the power conferred upon it in the light of doctrine of colourable legislation in Indian scenario?
DOCTRINE OF COLORABLE LEGISLATION AS PER CONSTITUTION OF INDIA:
The doctrine of colourable legislation in India only puts in a restriction/ limitation over the law making power i.e. the legislature where it is felt that the legislature is purporting to act within the powers of its work ambit but in reality it has transgressed those limits and powers. Similarly, in a case where the impugned legislation falls within the competence of legislature, then the question of doing something indirectly does not arise anyway.
Legislative Competence of Making Laws:
- The legislative or the law making power of the Parliament and the State Legislatures is conferred upon them by the Article 246 which are to be read with the List I, II and III mentioned in the Schedule VII to the Constitution of India.
- The Parliament at the Centre level has exclusive right to make and amend laws on the subjects mentioned in the List I (commonly known as the Union List, containing 97 subjects per se). The interference on these issues by the State Legislature will be regarded as the transgression of the limits of the State Legislature.
- The State Legislature at the State level has exclusive right to make and amend laws on the subjects mentioned in the List II to the Schedule VII of the Constitution of India (commonly known as the State List, containing 55 subjects per se). The interference on these issues by the Parliament at the Centre level will be regarded as the transgression of the limits of the Parliament.
- Both the Parliament at Centre level and the State Legislature both have the right to make and amend laws on the subjects mentioned in the List III to the Schedule VII of the Constitution of India (commonly known as the Concurrent List, containing 52 items per se).
- Residuary power of legislation is vested in Parliament by virtue of Article 248 and entry 97 in List I in the Schedule VII to the Indian Constitution.
While examining the legislative competence of Parliament to make a law all that is required to be seen is whether the subject matter falls in List II which Parliament cannot enter for in view of the residuary power vesting in Parliament other matters are not outside the legislative competence of Parliament. The question whether the Legislature has kept itself within the jurisdiction assigned to it or has encroached upon a forbidden field is determined by finding out the true nature and character or pith and substance of the legislation.