DOCTRINE OF COLOURABLE LEGISLATION
The idea of colorable legislation is founded on the tenet that “what cannot be done openly cannot be done indirectly either.” The notion comes into play when a legislature attempts to do something indirectly because it cannot do it directly. As a result, it explicitly refers to the legislature’s competence to execute a legislation.
The idea that the court (usually associated with the state legislature) lacks the jurisdiction to create law on a specific topic is significant, but it does so in a roundabout way. According to the concept of colorable law, “anything the government is unable to do directly, it cannot achieve indirectly.”
INDIAN PROVISIONS RELATED TO THE DOCRTINE
The notion of colorable legislation in India simply refers to the legislature’s capacity to pass laws. It comes into play when the legislature pretends to be acting within its jurisdiction but is actually acting outside of it. As a result, the concept applies anytime a law attempts to do something indirectly that it is unable to do directly.
Article 246 grants legislative powers to the Indian Parliament and state legislatures, which are apportioned under Lists I, II, and III of the Constitution’s seventh schedule. The primary authority to enact laws on any of the topics enumerated in List II rests with Parliament. Both Parliament and state legislatures have the authority to enact legislation pertaining to List III, often known as concurrent legislation. It is an issue of how legislative authority must be exerted between the Center and the States, or if the legitimacy of a rule is dependent only on their interactions. The key point is that the government cannot enter the domain of criminal jurisdiction.
IMPORTANT JUDGEMENTS RELATED TO THE DOCTRINE
To understand this concept in a much better way, one of the most cogent and lucid explanations relating to this doctrine was given in the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa
“ If the constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by the constitution in specific legislative entries, or if there are limitations on the legislative authority in the shape of Fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.”
In the jurisprudence of power, colorable exercise of or fraud on legislative power, or, more frightfully, fraud on the constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, despite the label of competency being struck on it, and then it is colorable legislation,” the Supreme Court stated in R.S Joshi v. Ajit Mills.
The Constitution divides legislative authority between the State Legislatures and Parliament, and each must operate within its own jurisdiction. In the case of specific legislation, the question may arise as to whether the legislature has violated the constitutional constraints put on it. This type of violation can be extreme, obvious, or direct, but it can also be subtle, hidden, or indirect.
As a result, colorable legislation is required to improve legislative accountability while also referencing some changes in parliamentary functions. This idea applies when a legislature does not have the authority to make a law on a certain issue but yet does so indirectly. The fate of the contested legislation is decided by applying this principle.
LEGAL SERVICE INDIA