Doctrine of Colourable Legislation - CLAT PDF Download

Introduction

The doctrine of colourable legislation is a legal principle meant to prevent the misuse of legislative power by the government. It is also known as a "Fraud on the Constitution."

Origin of the Doctrine

• This doctrine comes from the Latin phrase “quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which means that if something is not allowed to be done directly, it cannot be done indirectly either.
• The British administration introduced this doctrine in India, borrowing it from Canada and Australia.
• After India gained independence, the doctrine became a key part of the Constitution of India, 1950 (COI).
• The judiciary has further refined this doctrine through various judgments to oversee the legislative powers of government bodies.

What is the Doctrine of Colourable Legislation?

• This doctrine assesses whether a legislature has the authority to create a particular law.
• It applies when a legislature lacks the power to legislate on a specific subject but tries to do so indirectly.
• The application of this doctrine determines the validity of the challenged legislation.
• It limits the unauthorized extension of legislative powers in indirect ways.
• This doctrine is often referenced in relation to Article 246 of the COI, which defines the legislative powers of both Parliament and State Assemblies.

Article 246 of the COI

• This article outlines the subject matter for laws made by Parliament and State Legislatures.
• Parliament has exclusive power to make laws regarding matters listed in the Union List (List I).
• Parliament and State Legislatures can make laws on matters in the Concurrent List (List III), with Parliament having precedence.
• State Legislatures have exclusive power to legislate on matters in the State List (List II).
• Parliament can legislate on any matter for territories not included in a State, even if it falls under the State List.

Applicability of the Doctrine of Colourable Legislation

• The court uses this doctrine to assess whether the legislation in question is within the legislative authority.
• If the court finds that the legislature overstepped its authority, it can declare that law void.

Limitations of the Doctrine of Colourable Legislation

• The doctrine does not apply to subordinate legislation.
• It only concerns whether a legislative body has the authority to enact specific laws.
• It is not applicable when there are no constitutional limits on the legislature's powers.
• The doctrine does not consider the relevance or irrelevance of the legislation.
• It is also indifferent to whether the legislature's intentions are good or bad; it focuses solely on whether the law is within the legislature's jurisdiction.

Landmark Case of the Doctrine of Colourable Legislation

• In the case of R.S. Joshi v. Ajit Mills (1977), the Supreme Court stated that if a legislature attempts to enact a law without proper authority, even if it appears competent at first glance, it is still considered a colourable enactment.