Federalism is one of the basic characteristics of Indian constitution. The constitution envisions a demarcation of legislative roles and powers within different constituent units of the country. In general, there are two levels of government in a federation, and the constitution guarantees the existence and authority of each level of government. When a government with no control or legal competence enacts law that is so disguised that it seems to fall within its legislative competence, it is referred to as colorable legislation. The focus is to ensure that the legislature does not go above its authority to implicitly legislate.
Meaning, Scope and Applicability of the Doctrine
The Doctrine of Colorable Legislation is founded on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which states that what cannot be done directly cannot be done indirectly as well. The doctrine is applied to assess questions of competency to pass a rule, if a government oversteps the assigned authority and legislates on things implicitly that it can’t do explicitly. On the surface, the subject matter of the statute appears to be under the legislative jurisdiction, but the related consequence or object of the matter is simply beyond the legislature’s domain and authority. In this way, the doctrine limits the overstretching or abuse of legislative authority. This is why the doctrine is often referred to as “constitutional fraud.” It is important to note that the doctrine does not apply where the challenged statute doesn’t fall under the legislative power of the legislature. The Supreme Court explained the doctrine’s meaning and range in the case of K.C Gajapati Narayan Deo vs. State of Orissa.
Historical Background of the Doctrine
The origins of the theory of colorable law can be traced back to the colonial era, when self-government was expanding throughout the British Empire and Commonwealth. The legislative subjects were then divided between the Central and Provincial units, and every enactment was checked against the theory of colorable legislation to keep a balance on the powers given to these units. From there, the doctrine made its way to India, which adopted the doctrine’s premise based on Canadian and Australian legal precedents. In India, the judiciary was granted the authority to apply this doctrine when ruling on the Union’s and states’ constitutional competence. The judiciary in India has been given the authority to apply this theory in determining the legal ability of the Union and state legislatures.
Limitations on the Doctrine
There are some limits to the Doctrine’s applicability. They are as follows:
- It does not apply in areas where the legislature’s power is unrestricted by constitutional provisions.
- It does not apply to cases with subordinate laws.
- The legislature’s purpose when passing a law is irrelevant in determining its legitimacy.
- There will always be a presumption in favour of the enactment’s constitutional validity.
State of Bihar v. Kameshwar Singh
This is the case in which a statute has been declared clearly unconstitutional due to the fact that it is colorable legislation. In this case, the petitioner questioned the legality of the Bihar Land Reforms Act 1950, claiming that although the act was supposedly meant to provide a compensation principle, it failed to do so. This was seen as an attempt to deny the petitioner’s right to compensation. The court upheld the unconstitutionality of the Act.
Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd.
The legality of the disputed legislation was raised in this case, and the Supreme Court stated that by amending the Act, the legislature sought to set aside or overrule the court’s ruling, which is forbidden under the Constitutional scheme. Article 141 of the Constitution, which expressly states that the Supreme Court’s orders are binding on all Indian courts, means that the legislature, in no capacity, can say that the court’s declaration was null, imprecise, or mistaken.
The preceding cases show that the legislature’s explicitly conferred powers to legislate on some subject have incidental and ancillary powers related to the law’s proper enforcement.
The Constitution divides legislative powers between the Parliament and State Legislatures, and each must operate under its own jurisdiction. In the case of specific laws, the question may arise as to whether the legislature has exceeded the constitutional limitations put on it. This type of transgression can be explicit or direct, but it can also be subtle, hidden, or indirect. The term “colorable legislation” refers to this last category of cases. The fundamental premise is that, while a government may seem to be acting within its jurisdiction while passing a law, yet in substance and in reality, it transgressed these powers, the transgression being concealed by what appears, on proper examination, to be mere pretense or disguise. If this is the case, the law in question is invalid.
 1953 AIR 375.
 AIR 1952 SC 252.
 1971 AIR 57.
Author: Shejal Rathore from Indore Institute of Law.