Doctrine of Colourable Legislation by Monalisha Padhi at Lexcliq

The doctrine of colourability is the concept that when a legislature aims to do something that it is unable to do or is beyond its capability or authority, within the limitations of its government’s constitution, it colours the law with a concealed motive or purpose, allowing it to accomplish its original hidden goal. Legislation is termed as colourable when a legislature, having insufficient or absolutely no authority or legislative capability, enacts legislation that is so disguising that it misleadingly seems to drop within its legislative capability. It is clear that the purpose lies in the element that the legislature is unable to legislate directly; it cannot traverse outside its capability to legislate it in an indirect manner. This principle is  called the Doctrine of Colourable Legislation. While deliberating on legislative competence and the scope of the courts to check colourable legislation in the constituent assembly of India, Alladi Krishnaswami Ayyar said; “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.”

Clearly, not all acts of the legislation shall be subject to the applicability of the doctrine of colourable legislation, there are limitations to its applicability as follows:

  1. It is inapplicable in cases where the authority of the legislature is not fettered by the constitutional provisions.
  2. It does not apply to cases of subordinate legislation.
  3. The intention of the legislature while determining an enactment is not relevant to determining its validity.
  4. There shall always be a presumption of constitutional validity in favor of the enactment.

The Constitution of India has brought about well-founded dissemination of powers between Parliament and State Legislatures and every one of them is obligated to act within its confined sphere. The question of legislature competency often ascends when they seek to transgress the limits enforced by the Constitution but these contraventions are sometimes direct or patent. The Doctrine acts as a fundamental device of the Judiciary to monitor the legislative authorities endowed on the Union and State Governments and determine the validity of the legislation in question.

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