Doctrine of Colourable Legislation (Fraud on the Constitution)

Introduction:

Have you ever wondered looking at an outline of the image that it should be filled with different colours? I think most of us have because filling colour to an outline will give it a more beautiful, appealing, and realistic look. So, as we fill colours to an image to give it a more appealing look according to our senses, in the same way whenever an executive wants to execute the law and attain certain objectives out of them, he tries to customize legislation and give it a new meaning according to his wills and fancies. To protect the common public from this arbitrary power of executive and legislature the doctrine of colourable legislation has been introduced. It was once aptly said by former union minister of corporate affairs of India, Mr Arun Jaitley, “Over legislation is not necessarily a virtue. It often leads to misuse of law” and to put a brake on this misuse of law doctrine of colourable legislation has been devised and exercised by the Supreme Court of India.

Genesis of the Doctrine

This doctrine has been devised upon the brickwork of the doctrine of separation of power. The doctrine of separation of power as devised by John Locke and Montesquieu believes in clear demarcation and separation of power among three organs of the state viz., Executive, Legislature, and Judiciary to remove arbitrariness and accumulation of power in only one hand. Since, misuse of power can’t be removed by clear demarcation because the most powerful in each section could easily abuse the power so a system of checks and balances has also been devised, according to which all of these three organs will check and balance each other power. Whenever the legislature will try to shift the balance on its side by passing legislation which it is not empowered to pass then the judiciary with the help of this doctrine can come into the picture and check the accountability of the legislature.

Meaning

The doctrine of colourable legislation has been derived from the legal maxim, “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”, which means “when anything is prohibited directly then it is also prohibited indirectly.” Hence, the meaning of the doctrine of colourable legislation being similar to the meaning of this maxim is “one can not do indirectly what one cannot do directly.” This doctrine helps in finding out the answer to the question that has been raised on the competency of the legislature while enacting a provision of law and to find out whether any law made by the legislature is achieving some other purpose which legislature is not capable to legislate upon under the “colour” or “guise” of the power conferred to the legislature for a particular purpose. So, it is one of the various tools used by the Indian courts (mainly Supreme Court) to interpret various provisions of the Indian Constitution and analyze the provisions passed by the legislature.

Fraud on the Constitution

The doctrine of colourable legislation is also known as “Fraud on the Constitution.” Whenever legislature, in the exercise of its legislative power fails to comply with the constraints of the constitution, the non-compliance may be overt or it may be covert. The non-compliance will be overt when the law passed by the legislature will be ultra-virus to the constitution i.e., the law on the face of it is not complying with the ideals of the Constitution. However, non-compliance will be covert when the legislature professes that they are working in compliance with the ideals of the Constitution but in reality, it is not true. This covert non-compliance is what known as a fraud on the constitution because here legislature in an epigrammatic way is trying to commit fraud against Constitution and this doctrine of colourable legislation has been devised to deal with such picturesque demonstration of compliance by the legislature and remove this veil to reveal the real purpose the government.[1]

Limitations to the Doctrine of Colourable Legislation

1. The doctrine does not apply to Subordinate Legislation and wherever powers of the Legislature are out of the Constitutional limitations.
2. The doctrine does not resolve itself into finding out the intention i.e., bona fides or mala fides of the legislature. The doctrine only involves the question of the competency of the legislature to legislate a particular law. The aims which prompted the legislature to pass a particular law are not relevant if the legislature is competent to make laws on that subject. The question of the constitutionality of a statute is a question of power.[2]
3. The laws that have been enacted by the legislature are always assumed to be constitutional and it is assumed that legislature does not legislate upon Peripheral Matters[3] and if someone challenges the constitutionality of a particular enactment then the burden of proof will be on him to prove that the enactment is a clear transgression of the ideals of the Constitution.[4] It is so assumed because the court always prefers to find out the real meaning which legislature was trying to give to the provision and interprets or constructs the statute to keep them within the competence of the legislature.[5] The legal maxim “construction ut res magis valeat quam pereat” is the reason behind this constructive approach of the court; it means that “it is better for a thing to have an effect than to invalidate it.” Hence, courts assume that laws are constitutional and if one imposes any attack on their constitutionality then should prove it as well.
4. For better administration in the country, the legislature is empowered with all ancillary and incidental powers to make a law and also to make it operational.[6]
5. The legislature’s infringement of constitutional power may be blatant, evident, or direct, but it may also be veiled, stealthy, and indirect, and the doctrine of “colourable legislation” is applicable only in the latter case.[7]

Applicability of the Doctrine

In the Indian Parliament and the State Assembly, the legislative power is delegated by Article 246 and is allocated by Lists I, II, and III in the Seventh Schedule of the Indian Constitution. The Parliament has the power to legislate on any list I items, and both the Parliament and State Legislatures have the power to make laws on any list III items, and the remaining powers of the rules and regulations are vested in parliament by section 97, list I and section 248. It is the list III items which create confusion and raise the question as to whether the Parliament was competent or not to enact such a provision of the legislature and whether under the colour of power authorized to it, it has overstretched its limits. To clear this confusion and answer the question arose on the competency of the legislature the doctrine of colourable legislation has been applied on the list III items are given under Article 246 of the Indian Constitution.

Case Laws

The doctrine of colourable legislation has been used only once to declare a statute made by legislature as ultra vires. In the State of Bihar v. Kameshwar Singh[8]the Bihar Land Reforms Act, 1950 has been passed by the state of Bihar to abolish the Zamindari System. It was the first state to make legislation for the abolition of the Zamindari System with an idea of redistribution of the land. There was a clause in the Act which empowers the state to acquire property from the zamindars and pay compensation in exchange for it. The legislation was a challenge in the court on the basis that the calculation for paying the compensation in place of the land acquired is flawed. The court, in this case, upheld the contention rose by the petitioner and held the Bihar Land Reforms Act, 1950 as unconstitutional. It said that although supposedly the act lays down the principle of compensation but in reality it does not lie down any such principle, and devoid the zamindars of any compensation. The doctrine of colourable legislation has been applied to fix the legislative accountability even though all ancillary and legislative power to make a law effective has been given to the legislature.

The court has given the most persuasive and coherent definition of the doctrine of colourable legislation in the case of K.C. Gajapati Narayana Deo and Others v. The State Of Orissa.[9]

In the words of the court “If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers”

Further, explaining more the court said that “the idea conveyed by the expression is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise.”

To conclude, instead of the picturesque and epigrammatic appearance of the legislation what also matters is the subject matter of the legislation and if the subject matter of the law enacted by the legislature is transgressing its powers then the outward appearance which has coloured such transgression will not save the law from condemnation.

Conclusion

The article discussed the doctrine of colourable legislation as a tool devised and applied by the Supreme Court to keep a balance of power between three organs and prevent the legislature from shifting this balance in their favour. The article discussed the meaning, applicability, genesis, limitations, and case laws related to the doctrine. It could be concluded that although the legislature has the power to make laws and execute them if under the veil or colour of these powers legislature tries to transgress the constitutional ideals then such law will be condemned ultra vires to the constitution. The outward appearance of the enacted law if found a mere pretence or disguise and the subject matter of the law found to be a transgression of power then the law will be held invalid.

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References:

[1] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889

[2] K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375

[3] Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC 2042.

[4] Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors, AIR 1958 SC 538

[5] Suyash Verma, Constitutional Law- Doctrine of Colorable Legislation and the Constitution of India, Desikanoon (30/05/2014) http://www.desikanoon.co.in/2014/05/doctrine-of-colorable-legislation-india.html

[6] I.N. Saksena v.The State of Madhya Pradesh, AIR 1976 SC 2650

[7] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889

[8] AIR 1952 Pat 417

[9] AIR 1953 SC 375