Doctrine of colourable legislation

Introduction
Federalism is the basic structure of the Indian Constitution. The
sovereign authority derived from the Constitution is distributed
between the two levels of government: the centre and the states. This
step promotes better administration and includes growth in the
nation. At times, one government body attempts to encroach on the
jurisdiction of another government body by enacting legislation that is
not within their purview of governance or by passing laws that give
them authority to enact laws from another’s domain of governance.
This defeats the very purpose of federalism, and there is always a
constant risk of one government authority becoming more powerful
and starting to impose its decisions on another government authority.
The doctrine of colourable legislation discourages the misuse of the
legislative authority of the government by judicial intervention to
maintain the balance of power in the country. The doctrine of
colourable legislation is not explicitly mentioned in the Indian
Constitution; however, the judiciary has interpreted this doctrine via
its judgements to protect the federal nature of our country. Whenever
the centre or any state tries to expand its legislative sphere
unconstitutionally, the doctrine provides the judiciary with the
authority to prevent them from doing so.
The following article delves into the concept of the doctrine of
colourable legislation in detail and further provides comprehensive
details of constitutional provisions, significance and limitations of the
doctrine of colourable legislation.
The doctrine of colourable legislation
The doctrine of colourable legislation is a legal principle that aims at
the prevention of excessive and unconstitutional use of the legislative
authority of the government. The doctrine is derived from the Latin
maxim “quando aliquid prohibetur ex directo, prohibetur et per
obliquum” which means things that cannot be done directly should
not be done indirectly either. The Black’s Law Dictionary defines the
word ‘colourable’ as:
 1. Appearing to be true, valid or right.
2. Intended to deceive; counterfeit.
3. Appearance, guise or semblance.
In a literal sense, the doctrine of colourable legislation means that the
government is enacting legislation under the guise of having authority
even though it does not possess any competent authority to do so.
The judiciary has the authority to prevent the government from the
abuse of its power. When the government misuses its legislative
authority by making laws outside its demarcated jurisdiction, the
judiciary has the power to review them and strike them down if they
are found unconstitutional.
The doctrine of colourable legislation is also known as “Fraud on the
Constitution” because the legislature of the government authority
does not enact laws according to the provisions mentioned in the
Constitution. The legislative authority creates a delusion that it is
acting in compliance with the constitutional provisions but in reality, it
does not.
The Supreme Court in the case of R. S. Joshi v. Ajit Mills
(1977) determined the term colourable exercise of power, fraud on
legislative power and fraud on the constitution are similar expressions
which mean the legislature is incompetent to enact a particular law.
According to this doctrine, the legitimacy of legislation is identified
depending on the competency of the legislature to enact a particular
law, not on the motives or intentions of the legislature. The judiciary,
while determining whether a law is a colourable legislation, does not
take into account the intentions of the legislature; it only considers
whether the particular legislation is within the jurisdiction of the
government authority or not.
Evolution of the doctrine of colourable legislation in India
The doctrine of colourable legislation was introduced in India by the
British administration. Though the British practised a unitary form of
government in the initial days of their rule, later they shifted to the
federal mode of government. During British rule, power was
distributed between the centre and the provincial units. The doctrine
of colourable legislation was used to determine the authority of
different government bodies in the country and ensure the balance of
power between them. This doctrine was adopted by the British
government from Canada and Australia.
Canada: The doctrine of colourable legislation is an important
component of the constitution of Canada. The British North America
Act, 1867 established a federal government in Canada by
incorporating the territories of Nova Scotia and New Brunswick.
Section 91 – 95 of the Act deals with the distribution of power among
the central government and the provincial units. Later, the
Constitution Act, 1982 also had provisions for the distribution of
powers among the government bodies. These constitutional
provisions led to the development of the doctrine of colourable
legislation. The doctrine is used to supervise the legislative authority of
the government bodies.
Australia: Australia adopted a federal government with the enactment
of the Commonwealth of the Australia Constitution Act, 1901 by
incorporating the territories of New South Wales, Tasmania,
Queensland, Victoria, Western Australia and Southern Australia.
Australia comprises of two-tier government system- Commonwealth
government or Federal government and state governments. Section
51 of the Australian Constitution consists of the legislative powers of
the Commonwealth government and the states have the authority to
enact laws on unlisted subjects in section 51. These are known as
residuary powers. Apart from these the Australian Constitution also
comprises a concurrent list where both the Commonwealth
government and state government can enact laws. The doctrine of
colourable legislation was developed by the judiciary based on these
constitutional provisions. The doctrine was used to determine the
valid exercise of legislative powers by the government bodies.
Even after independence, the doctrine of colourable legislation
remained to be an integral part of the Indian Constitution. The judiciary
further developed the doctrine of colourable legislation through its
judgements to regulate the legislative authority of the government
bodies.
Article 246 of the Indian Constitution
The Indian Constitution does not expressly mention the doctrine of
colourable legislation. However, Article 246 and Article 246A outlines
the legislative authority of the centre and states and judiciary have the
power to declare any legislation unconstitutional if the legislature
exceeds its authority.
Article 246 of the Constitution discusses the federal nature of India.
Article 246 distributes the power between the centre and the states
and specifies their authority to enact laws on various subjects.
The Seventh Schedule divides the legislative authority between the
centre and states into three distinct lists in order to prevent them from
intruding on each other’s legislative domain.
The subjects are divided into three lists:
(1) Union list;
(2) State list;
(3) Concurrent list.
The subjects in each list are carefully divided to avoid conflicts
between the centre and states. The Constitution grants complete
autonomy to the centre and the states to make legislation within the
purview of their jurisdiction to ensure efficient governance.
Union list
The union list contains matters of national importance, and the central
government has the exclusive right to make legislation for the whole
country or any region. The centre has the power to make laws
regarding the subjects mentioned in the union list. The union list
contains 97 subjects such as external security, defence,
communication, trade etc.
The central government is entrusted with the responsibility of
maintaining external security and internal peace in the country. With
respect to this, the union government can raise funds to develop
armed forces and make necessary laws on warfare industries for the
manufacturing of arms and ammunition.
The central government has the right to make laws on transportation
to improve connectivity between different parts of our country and
other nations. They include the creation and management of roads,
railways, national waterways, airways, aircraft, ports, and lighthouses
for the establishment of transport, infrastructure, and communication
both domestically and internationally.
The union government also engages in diplomacy and maintains
foreign relations for the nation’s best interest. The union government
represents India at international conferences and in foreign countries
for conventions and trade negotiations.
Apart from these, the central government has the right to enact laws
on currency, coinage, foreign exchange, foreign loans, the Reserve
Bank of India, inter-state communications, trade, incorporation,
regulation and winding of corporations, banking, stock exchange and
futures exchange, patents, copyrights, insurance, trademarks, and
inter-state disputes.
State list
The state list contains subjects that are vital for the effective
functioning and administration of the state. Every state in India has the
exclusive power to make laws pertaining to the subjects in the state
list suitable for the respective state. The state list contains 61
subjects. Initially, there were 66 subjects in the state list, but after
the 42nd amendment of the Indian Constitution, five subject matters
relating to education, forests, protection of wild animals and birds,
weights and measures, and administration of justice, including the
constitution and organisation of all courts except the Supreme Court
and High Courts were transferred to the concurrent list.
The state government has the power to implement necessary
legislation to maintain law and order in their respective states. The
state government controls the police forces in the state. The police
are entrusted with the maintenance of peace and harmony within the
state. The government has the right to enact laws and regulations with
regard to state police in compliance with the requisites of the state.
The state government, in accordance with the socio-economic
demands of the state, can facilitate public hospitals, dispensaries,
libraries, museums, and provisions for unemployed people.
The municipal corporations, improvement trusts, district boards,
mining settlement authorities, and other local authorities are subject
to state control to ensure the proper functioning of local self-
government or village administration.
Apart from these, the state list also includes prisons, reformatories,
pilgrimages, the manufacturing of liquors, burial grounds, agriculture,
agricultural research and education, irrigation, land revenue, taxes on
agricultural produce, buildings, and the sale or consumption of
electricity.
Concurrent list
The concurrent list contains subjects that are of interest to both the
centre and the states. Both the centre and states have exclusive
power to enact laws pertaining to the subjects mentioned in this list.
However, if both the union and state governments make laws on the
same subject, the central government’s law will take precedence.
The primary aim of the concurrent list is to promote the diversity of
laws, social traditions, and federal experimentation. The concurrent
list contains 52 subjects in total.
The subjects of the concurrent list include criminal law and
procedure, civil law, preventive detention, marriage and divorce,
adoption, will, intestacy and succession, transfer of property,
registration of deeds, relief, and residence of people displaced from
their original place of residence, drugs and poisons, charitable
institutions, religious endowments and institutions, newspapers,
books, printing presses, actionable claims, trusts and trustees,
bankruptcy and insolvency and contracts including partnership,
agency and contract of carriage.
Article 246A of the Indian Constitution
Article 246A was enacted into the Constitution through the One
Hundred and First Amendments in 2016. Article 246A confers power
to the centre and the states to levy and collect taxes simultaneously.
This resulted in the introduction of the Goods and Services Tax (GST)
in India.
In the pre-GST period, the Value Added Tax (VAT) was implemented
for the collection of indirect taxes. This system required taxes to be
paid at every stage of production, from the manufacturing of raw
materials to finished goods. However, this system achieved very little
success. The Report of the Task Force on Implementation of the Fiscal
Responsibility and Budget Management Act, 2003, recommended a
comprehensive GST policy based on the VAT principle with the
integration of all state governments.
The GST system was introduced in 2016, and it is a single taxation
policy enacted to remove numerous indirect taxes levied by the
central and state governments. Article 246A mentions that the
Legislature of every state shall have the power to make laws with
respect to goods and services taxes imposed by the Union or by such
a state. It also states that the central government will have the
exclusive power to levy and collect taxes in the course of inter-state
trade.
Significance of the doctrine of colourable legislation
• The doctrine of colourable legislation plays a crucial role in
preventing the misuse of the legislative authority of the
government through timely judicial intervention.
• The judiciary, with the assistance of this doctrine, maintains
balance in the country, whenever any government authority
attempts to become more powerful than the rest in an
unauthorised manner.
• The doctrine of colourable legislation confers the power of the
judiciary to check the competency of legislation in accordance
with its jurisdiction. The courts also have the power to strike
them down if they find them unconstitutional.
• When the legislature becomes the dominant power, it may
impose its decisions on other organs of the government. This
becomes a serious threat to the concept of separation of
powers. The doctrine of colourable legislation prevents this
abuse of authority by a single body.
• It encourages the legislature to act in a more vigilant manner.
 • It preserves the spirit of democracy by reminding the
government of its responsibilities towards the country and
promoting the desires and aspirations of the people.
The doctrine of pith and substance
The doctrine of pith and substance aims at determining the true
essence of a law. The term “pith” signifies “true nature” or “essence
of something” and the term “substance” signifies “the most important
part of something.” When the legislature enacts a law by encroaching
on the authority of another legislature, such a law is deemed to be void
or ultra vires. In such circumstances, the doctrine of pith and
substances examines whether there is incidental or significant
trespass by the legislature, and if there is only the slightest trespass by
the legislature, the doctrine determines such a law to be valid.
The doctrine of colourable legislation aims at the prevention of the
excessive use of the legislative authority of the government, while the
doctrine of pith and substance deals with the true nature of the law.
The doctrine of colourable legislation only examines whether the law
is within the legislative sphere of the government and strikes it down
as being ultra vires, but the doctrine of pith and substance considers
the degree of violation of the legislative powers in the judicial review.
The doctrine of pith and substance eases the rigid federal structure.
The doctrine assists the legislature in the maintenance of its power by
not allowing the judiciary to declare a law invalid for the slightest
trespass on legislative power.
The doctrine of colourable legislation and the doctrine of pith and
substance derive their authority from the Constitution of India to
maintain the federal structure of our country and protect the powers
of legislative bodies. Whenever the legislature exceeds its authority
the courts are at the discretion to apply any one of the doctrine
depending on the circumstances of a case.
In the case of Prafulla Kumar Mukherjee v. The Bank of Commerce
(1947), the validity of the Bengal Money-Lenders Act, 1940, was
challenged before the Bombay High Court. This Act was introduced to
govern money lending, which belongs to the state list; however, some
provisions of the Act controlled matters relating to promissory notes,
which fall under the union list. It was argued that the Act encroaches
on subject matter belonging to the central government. The Court,
applying the doctrine of pith and substance, held that it is not possible
to make a clear-cut distinction between the powers of legislatures,
and the powers are bound to overlap. Thus the Court determined that
the Bengal Money-Lending Act should be examined according to its
true nature and character rather than merely looking at the legislative
capacity of the state. The court held the Act to be valid by applying the
concept of pith and substance.
Limitations of the doctrine of colourable legislation
While the doctrine of colourable legislation is considered one of the
primary safeguards to prevent the misuse of legislative power by the
government, it is also constrained by a few limitations.
Subordinate Legislation
Subordinate legislation is a law passed under the power of existing
legislation, not directly by the legislative body of the government.
Subordinate legislation is also known as delegated legislation. Since
subordinate legislation is enacted by the delegated authority of
competent primary legislation, there is always a presumption of the
legitimacy of such laws. The burden of proof lies with the person
challenging the legality of the law.
The Supreme Court in Ram Krishna Dalmia v. Justice S.R.
Tendolkar (1958) stated that “there is a presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional guarantee”. This decision was upheld in another
Supreme Court judgement, Mahant Moti Das v. S.P. Sahi (1959).
Intentions or motives
The doctrine of colourable legislation merely examines the
competency of the legislature to pass a law; the doctrine is not
concerned with the mala fide or bona fide intentions and motives of
the government to enact the law. The judiciary only reviews legislation
on whether it is within the competent jurisdiction or not and fails to
examine the bona fide or good intentions of the law. Sometimes, a
good law, despite having the potential to serve the interests of the
public, gets rejected because it is not within the competent
jurisdiction.
Justice B.K. Mukherjea in the judgement of K.C. Gajapati Narayan Deo
v. State of Orissa (1954) stated that “The question whether a law was
colourable legislation did not depend on the motive or bona fides of
the legislature in passing the law but upon the competency of the
legislature to pass that particular law, and what the courts have to
determine in such cases is whether though the legislature has
purported to act within the limits of its powers, it has in substance and
reality transgressed those powers, the transgression being veiled by
what appears, on proper examination, to be a mere pretence or
disguise. The whole doctrine of colourable legislation is based upon
the maxim that you cannot do indirectly what you cannot do directly”.
Applies only within Constitutional limit
The doctrine of colourable legislation applies when the legislature
exceeds its authority as mentioned in the Constitution. However, the
doctrine proves to be ineffective when the legislature is barred by any
constitutional limit. The doctrine of colourable legislation is
inapplicable where the legislature is not restricted by any limitation.
Landmark case laws
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952)
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) is a
landmark judgement in the doctrine of colourable legislation.
Facts of the case
After independence, many state governments passed legislation on
the abolition of the zamindari system and intermediaries between the
cultivators and the state. The Bihar Land Reforms Act, 1950,
the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, and
the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 were enacted in their respective states with a similar view.
However, landlords filed a case in the High Courts of their states
challenging the legitimacy of the act. The Bihar High Court declared
the Bihar Land Reforms Act to be invalid under Article 14 of the
Constitution, while the other two acts were held valid and legitimate.
This decision was challenged in the Supreme Court. During this
period, the Indian Constitution added the Ninth Schedule through
the First Constitutional Amendment. The subjects under the Ninth
Schedule were provided immunity from judicial review, and the Bihar
Land Reforms Act was placed in the Schedule in the same year.
Articles 31A and 31B were passed accordingly in this regard. This
amendment took away the opportunity of zamindars to attack the
legislation on infringement of Part III of the Constitution.
However, the zamindars presented their arguments based on the lack
of legislative authority on the principles of compensation for the
acquisition of property for public purposes mentioned in the
concurrent list. They argued the government committed fraud on the
constitution by not complying with the required provisions and offering
them less or negligible compensation in comparison to the market
price.
The Uttar Pradesh and Madhya Pradesh High Court judgements were
also challenged by the aggrieved proprietors in the Supreme Court,
stating that some of the estates sought to be acquired by the states of
Uttar Pradesh and Madhya Pradesh belonged to former rulers of
Indian princely states. They argued that this property was subject to a
“Covenant of Merger” between the Government of India and rulers in
order for them to merge the property in the states of Uttar Pradesh and
Madhya Pradesh. They further argued that “personal rights” of the
property were guaranteed to them under the instrument of merger and
they cannot be deprived of their rights in accordance with Article
362 of the Constitution.
Issues
1. Whether the Bihar Land Reforms Act of 1950 is a colourable
legislation
2. Whether the Madhya Pradesh Abolition of Proprietary Rights
Act, 1950, and the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 constitutional
Observation
The Supreme Court contended that the acquisition of land by the
government from the zamindars is not in accordance with “public
purposes” mentioned in entry 42 of the concurrent list. The term
public purpose is vaguely defined as anything for the benefit of the
public. The Court observed that Article 31(2) of the Constitution states
that land can be acquired only for public purposes with adequate
compensation to the landlord. Even though Articles 31(4) and 31B
debar people from challenging an Act according to Article 31(2), the
Court held that the judiciary will be open to review. The Court further
stated that the failure to comply with the constitutional provisions
may be overt or covert. In converting non-compliance, the legislature
pretends to act within its power while not doing so. The Supreme
Court held the Act committed fraud on the constitution by not
providing adequate compensation.
With the estates of Uttar Pradesh and Madhya Pradesh, the Court
observed that there was no contravention of the rights of proprietors
because the property was acquired by the government as “private
property” and nothing more.
Judgement
The Supreme Court held that the whole Act cannot be determined as
invalid. The Court declared Sections 4(b) and 23(f) of the Bihar Land
Reforms Act, 1950, to be unconstitutional, while the rest of the Act
remains valid. Contentions concerning the Uttar Pradesh and Madhya
Pradesh Act were overruled by the Supreme Court
M. R. Balaji v. State of Mysore (1962)
M. R. Balaji v. State of Mysore (1962) is a landmark judgement on the
reservation system in India.
Facts of the case
The state of Mysore passed an order that included all the communities
except the Brahmin community within socially and educationally
backward classes and reserved 75% of seats in all educational seats.
Later, the state passed another order which superseded all the
previous orders. Under this order, the state created two categories,
i.e., backward classes and more backward classes. 68% of seats
were reserved for them, including Scheduled Caste and Scheduled
Tribes, for all engineering and medical colleges, leaving only 33%
seats for unreserved students. The petitioners argued that the order
was fraud on Article 15(4) of the Constitution.
Issues
1. Whether the reservation order is within the constitutional
purview of Article 15(4)
2. Whether the 68% of the reservation for the backward classes
reasonable?
Observation
The Supreme Court observed that the state is entitled to use caste as
the sole basis to determine criteria for reservation in educational
institutions. The Court opined that caste is irrelevant to establishing
whether a class of citizens is socially and economically backward or
not. The Court stated that the reservation made under the order is
highly inconsistent and not permitted within the provisions of Article
15(4) of the Constitution.
Judgement
The Supreme Court ruled that the order was a fraud on the powers
conferred by Article 15(4) of the Constitution. The Court also ruled
that the reservation should not exceed more than 50% in the public
interest.
Animal Welfare Board of India v. Union of India (2023)
Animal Welfare Board of India v. Union of India (2023) is a recent
Supreme Court judgement on the famous traditional bull race
practised in the states of Tamil Nadu, Maharashtra, and Karnataka
known as “Jallikattu” and “Bullock Cart Race”.
Facts of the Case
In 2014, the Supreme Court held customary bull sport practised in
Tamil Nadu, Maharashtra, and Karnataka to be unconstitutional and
held the sport was in violation of the provisions of the Prevention of
Cruelty to Animals Act, 1960. The Court further held the Tamil Nadu
Regulation of Jallikattu Act, 2009, regulating the sport of Jallikattu, as
void. However, an exception was made, allowing training for the bulls
to participate in Jallikattu. The Tamil Nadu government passed
the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act,
2017 as an amendment to the Prevention of Cruelty to Animals Act,
1960. The Prevention of Cruelty to Animals (Maharashtra
Amendment) Act, 2017, and the Prevention of Cruelty to Animals
(Karnataka Second Amendment) Act, 2017 by the respective states
were enacted to remain in accordance with the Supreme Court
judgement. The petitioners claim that the amendment fails to remove
the defects of the Act. The petitioners argued that since the state
government lacks the authority to enact legislation through List II of
the seventh schedule, they brought enactment through List III of the
seventh schedule when they do not possess the authority to pass an
amendment through List III as well.
Issues
1. Does the judiciary have the authority to invalidate legislation
for failure of people to comply with it?
2. Whether the impugned Acts introduced by the state
legislatures colourable legislation?
Observation
The Supreme Court observed that the Amendment Acts brought by the
respective state legislatures substantially reduced the pain and
cruelty inflicted on the animals in comparison to the pre-amendment
period. The Supreme Court further said the judiciary cannot strike
down legislation on the assumption of failure to comply with the Act.
The Supreme Court stated that the 1960 Act and the amendment deal
with the prevention of cruelty to animals mentioned in List III. As there
are no other entries in any other lists that deal with this subject, the
Court rejected the petitioner’s contention that the state legislature
lacks the jurisdiction to pass the Amendment.
Judgement
The Supreme Court held that the Amendment Acts introduced by the
states are not a colourable legislation but instead relate to the
doctrine of pith and substance in List III of the Seventh Schedule to the
Constitution of India. The Court stated that the Amendment Acts
minimises cruelty to animals and would not come within the purview
of the Prevention of Cruelty to Animals Act, 1960.
Conclusion
The doctrine of colourable legislation aims to prevent the use of the
legislative authority of the government for unauthorised purposes. The
primary objective of the division of powers is to prevent the
concentration of powers under one government authority. Whenever a
government authority tries to expand its powers by enacting new laws
outside its territory, this situation may pose a serious threat to
democracy in the country. The judiciary, by applying the doctrine of
colourable legislation, reviews such laws passed by the government
and strikes them down if it finds them to be outside the jurisdiction of
the legislative authority.
The doctrine of colourable legislation acts as a shield to the federal
nature of our country and prevents despotic rule by judicial review.
The doctrine of colourable legislation upholds the spirit of democracy
and encourages the leaders to work according to the aims and
aspirations of the people rather than their own advantage.