CONTACT US

084594-00000

About Us  :  Online Enquiry

Download

Doctrine Of Colourable Legislation

Doctrine Of Colourable Legislation

Introduction

  • Federalism is one of the basic feature of Indian constitution.
  • By virtue of this power the constitution envisages a demarcation of governmental functions and powers between various constituent units of the country.                 
  • Generally in a federation there are two levels of govt. the existence or authority of each level of the Government has been guaranteed by the constitution.          Doctrine Of Colourable Legislation
  • Indian system is very much influenced to the colonial rulling system of the English for many reasons.
  • One of the influence of this must be the policy which created the three pillars of the democracy i.e. executive, legislature and the judiciary.
  • In Indian constitutional pattern a direct separation of power prevails by which a balance has been maintained between the different organs of the govt. among these the law making power primarily vests on the legislature.

What is Doctrine Of Colourable Legislation?

  • This is applied when the legislature enacting the law has transgressed its power as is mentioned in the Constitution.
  • It is based upon the doctrine of power separation. Separation of power mandates to strike power of balance between different state components.
  • The expression “colourable legislation” simply means what cannot be done directly, cannot be done indirectly too.
  • It is the substance that is material and not the outward appearance.
  • Hence there are certain situations when it seems that it is within the power of the legislature enacting the law but actually it is transgressing. This is when this doctrine comes into the picture.
  • It is also sometimes called as “Legislative Fraud”.                  Doctrine Of Colourable Legislation

Application Of This Doctrine

  • It was applied by the Supreme Court of India in the case State of Bihar vs Kameshwar Singhand it was held that the Bihar Land Reforms Act was invalid.
  • 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 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”.
  • In the case of Shri Prithvi Cotton Mills v. Broach Borough Municipality, the CJ granted legislative competence and stated that it is not sufficient to merely declare that the court’s decision will not bind as it is equivalent to reversing the decision in the usage of judicial power which the legislature does not possess.
  • A court’s decision should always bind in all situations unless the conditions are fundamentally altered.
  • Therefore, it is accepted that when the premise of the decision is genuinely changed by the legislature then there is no case of exercise of judicial power by the legislature.

Limitation Of Colourable Legislation

  • The doctrine does not extend to Subordinate Legislation, either.
  • Colorable law theory does not require any doubt on the part of the legislature about bona fides or mala fides. The whole theory transforms itself into a single legislature’s, question of ability to pass a particular law.
  • If a Legislature has the power to make legislation on a particular subject, it also has the power to make the law successful.                  Doctrine Of Colourable Legislation
  • The doctrine has no effect where any Constitutional restriction does not fetter the powers of a legislature.

Conclusion

  • The Constitution distributes legislative powers between the State Legislatures and Parliament, and each has to act within its sphere.
  • In respect of particular legislation, the question may arise whether the legislature has transgressed the limits imposed on it by the constitution.
  • Such transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect. It is to this latter class of cases that the expression colourable legislation.
  • The underlying idea is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise. If that is so, the legislation in question is invalid.                              Doctrine Of Colourable Legislation

 

ALSO READ : https://www.brainyias.com/new-zealand-zero-carbon-act/

Mussoorie Times

Send this to a friend