Presentationon colourable legislation

This presentation is an attempt to explain the colourable legislation in a simple language with the limitations on it and supported by the landmark cases delivered by the apex court.

1. DOCTRINE OF COLOURABLE LEGISLATION PREPARED BY: Harsh Vikram Singh One Year LL.M BVDU New Law College Pune

2. INTRODUCTION Doctrines are “a rule, principle, theory, or tenet of the law. When a legislature makes a law which seems to be in its legislative competence but in effect and substance lies beyond its ambit. So such kind of legislation is known as Colourable Legislation.

3. MEANING, SCOPE AND APPLICABILITY The doctrine is based on Latin maxim “ Quando aliquid prohibetur ex directo, prohibetur et per obliquum” . Which means that what cannot be done directly, should also not be done indirectly. Colourable legislation would emerge only when a legislature had no power to legislate or on account of limitations imposed under Part III of the Constitution. In case of K.C. Gajapati Narayan Deo v. State of Orissa (1953 AIR 375) Supreme Court stated that 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, enacting it, transgressed the limits of its constitutional powers.

4. CONTINUED 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. This transgress can be direct and indirect and the Doctrine of Colourable legislation applies to the later class of cases.

5. LIMITATIONS ON THE DOCTRINE It is not applicable in cases where the impugned legislation does fall under the legislative competence of the legislature. It doesn’t extend to cases of subordinate legislation. The intention of the legislature while passing an enactment is irrelevant to decide its validity. There shall always be a presumption of constitutional validity in favour of the enactment.

6. CONTINUED The principle of presumption was laid down in the case of Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar & ors. (1958 AIR 538)

7. LAND MARK CASES Tara Prasad v. Union of India (AIR 1980 SC 1682): In this case Coal Mines Amendment Act 1976 was challenged on the ground that Parliament has no power to enact this act. By this act, all the non nationalised mines lease stand cancelled. Supreme Court held that the conservation of coal resources is also in the public interest and it was not a colourable exercise of legislative power.

8. CONTINUED Naga People's Movement for Human Rights v. Union of India, (AIR 1998 SC 431) : In this case, Armed Forced Special Power Act was challenged on the ground that the parliament has no competency to legislate on the subject of state matter. Court held that the act is within the legislative competency and is not encroaching on the state subject.

9. CONTINUED S.S. Bola v. Union of India (AIR 1994): In this case court held that where the legislature travelled beyond its power or competence on its transgression of the limitation imposed by the Constitution itself that the enactment would be called a Colourable Legislation.

10. CONCLUSION The Doctrine of Colourable legislation is also known as Fraud on the Constitution. The failure to comply with a Constitutional condition for the exercise of legislative power may be either overt or it may be covert. When it is overt we can say the law is bad for the non compliance of Constitution while when it is covert we can say that it is a fraud on the Constitution.

11. REFERENCES Constitutional Law M.P. Jain 8 th Edition 2018 p.p. 616-618 Constitutional Law of India J.N. Pandey 53 rd Edition 2016 Central Law Agency, Allahabad p.p. 655-666 https://www.legalbites.in/doctrine-of-colourable-legislation/#:~:text=Article%20141%20of%20the%20Constitution,precedent%20or%20between%20the%20parties.

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