Doctrine of colourable legislation by Bhumica M @lexcliq

Doctrine of colourable legislation 

 

By Bhumica M

BA-LLB

REVA University, Bangalore

 

Colorable legislation, i.e. doing something indirectly which can not be done directly. The idea that the judiciary (usually associated with the state legislature) does not have the power to make legislation on a particular aspect is important but renders it implicitly. Colorable legislation theory says, “Whatever the government is unable to do directly, it can not do indirectly.” The fate of the impugned law is determined by applying this theory. While the government purports to act within its authority, it appears to realize but in fact, it has transgressed certain powers. So, the doctrine becomes valid whenever a statute tries to do what it can not do specifically in an indirect manner. 

This theory is also called “Fraud on the Constitution ” Failure to meet a substantive requirement for the exercise of legislative power may be explicit or concealed. When it’s overt, we say the law is terrible for non-compliance with the Constitution’s provisions, that is, the statute is ultra virus.

In moopil Nair vs state of Kerala 1961 the court struck down travancore-cochin land tax act of 1955. It was the time when the right to property was a fundamental right under our constitution. The Kerala government at that point of time imposed land tax on the person who held property in their name but the land tax was so high that people were not able to pay them. At some point of time the land tax would shoot up to 30000. Also, this state government had mentioned that the owners who failed to pay land tax would confiscate their property and also without any compensation. So the court found that the real objective behind this legislation was that the state government was trying to acquire land without giving compensation to the land owners. When this was found out the court said to the state government that this cannot be done, that is acquisition of the land without compensation. so the legislation which has coloured to fulfill this objective was struck down. The embodiment lies in the way that the council can’t violate the field of its competency by implication. Such an occasion is a clear misrepresentation of the constitution. In India ‘ colourable enactment hypothesis ‘ infers just a limitation of the council’s law-production power. 

The Constitution conveys administrative forces between the State Legislatures and Parliament, and each needs to act inside its circle. In regard to specific enactment, the inquiry may emerge whether the assembly has violated the cutoff points forced on it by the constitution. Such offence might be patent, show or direct, yet it might likewise be masked, clandestine or aberrant. It is to this last class of cases that the articulation colourable enactment. The hidden thought is that albeit obviously, a council in passing a rule suspected to act inside the constraints of its forces, yet in substance and as a general rule it violated these forces, the offence being hidden by what shows up, on legitimate assessment, to be simple misrepresentation or camouflage. On the off chance that is along these lines, the enactment being referred to is invalid.

 

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