Doctrine of Colorable Legislation (2018)
Category : Constitutional Law – II
The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.
Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and applied by the Supreme Court of India to interpret various Constitutional Provisions. It is a guiding principle of immense utility while construing provisions relating to legislative competence.
his maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.
In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.
This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one. By applying this principle the fate of the Impugned Legislation is decided.
Doctrine of Colorable Legislation states, “Whatever legislature can’t do directly, it can’t do indirectly”. By applying this principle the fate of the impugned legislation is decided. This has been provided by Article 246 which has demarcated the legislative jurisdiction of the parliament and the state assemblies by outlining the different subjects under List I for the Union, List II for the State and List III for both, as given in the seventh schedule to the Indian Constitution.
“ In a recent case the supreme court rejected that the Armed Forces Special Powers Act,1958 enacted by the parliament is colourable legislation and held that “the use of the expression ‘colourable legislation’ seeks to convey that by enacting the legislation in question the legislature is seeking to do indirectly what it can not do directly. But ultimately the issue boils down to the question whether the legislature had the competence to enact the legislation because if the impugned legislation falls within the competence of the legislature the question of doing something indirectly which cannot be done directly does not arise.”
Colourable Legislation in India : In India ‘doctrine of colourable legislation’ signifies only a limitation of the law making power of the legislature. It comes to know while the legislature purporting to act within its power but in reality it has transgressed those powers. So, the doctrine becones applicable whenever a legislation seeks to do in an indirect manner what it cannot do directly.
In India legislative powers of Parliament and the State Legislatures are conferred by Article 246 and distributed by Lists I, II,and III, in the Seventh Schedule of the Indian Constitution. The Parliament has power to make law respect to any of the matters of the List II and the Parliament and the State Legislatures both have power to make laws with the respect to any of the matters of the List III and the residuary power of legislation is vested in the Parliament by virtue of Article 248 and entry 97,List I. For making any law or for that law’s validity legislative competency is an issue that relates to how legislative power must be shared between the Centre and the States or it focuses only on the relationships between both of them. The main point is that the legislature having restrictive power cannot step over the field of competency. It is termed as the ” fraud on the Constitution.”