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Title:
Role of rule of Colourable Legislation in interpretation of Article
246

Submitted by:
KASHISH GROVER

Symbiosis Law School, NOIDA


Symbiosis International (Deemed University), Pune
In
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INDEX

Title Page No.


1. Introduction..........................................................................5
2. Position in India.....................................................................5
3. Article 246 and Doctrine of Colourable Legislation......................6
4. Research Questions................................................................7
5. Conclusion............................................................................9
6. Bibliography.........................................................................11
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INTRODUCTION
Doctrine of Colourable Legislation is formulated by Supreme Court to interpret various other
Constitutional Provisions. It is a guiding principle of immense utility while construing
provisions relating to legislative competence. Doctrine of Colourable Legislation is built upon
the founding stones of the Doctrine of Separation of Power. Separation of Power mandates
that a balance of power is to be struck between the different components of the State i.e.
between the Legislature, the Executive and the Judiciary. The Primary Function of the
legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards
itself then the Doctrine of Colourable Legislation is attracted to take care of Legislative
Accountability.
Black’s Law Dictionary defines ‘Colourable’ as:

1. Appearing to be true, valid or right.


2. Intended to deceive; counterfeit.
3. ‘Colour’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of Colourable Legislation is that under the ‘colour’ 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.

This Doctrine also traces its origin to a Latin Maxim:

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”

This 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”. The rule relates to the question of legislative competence to
enact a law. Colourable Legislation does not involve the question of bonafides or malfides. A
legislative transgression may be patent, manifest or direct or may be disguised, covert or
indirect.

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. “

POSITION IN INDIA

In India ‘doctrine of colorable legislation’ signifies only a limitation of the law making power
of the legislature. So, the doctrine becomes applicable whenever legislation seeks to do in an
indirect manner what it cannot do directly.
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The doctrine doesn’t lay any question of bona fide or mala fide on the part of legislation. If
the legislature is competent to pass a particular law, the motive behind the passing of the act is
irrelevant.

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.

Sometimes, a Legislature may enact a law which is apparently within its authority and scope
but in substance, it violates its constitutional jurisdiction. In such legislation, the outlet form
of law is not important where as its substance should be considered. Such legislation or law is
called colorable legislation.

 In a recent case the supreme court rejected that the Armed Forces Special Powers Act,1958
enacted by the parliament is colorable legislation and held that “the use of the expression
‘colorable legislation’ seeks to convey that by enacting the legislation in question the
legislature is seeking to do indirectly what it cannot 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.”
This Doctrine is also called as “Fraud on the Constitution”. The failure to comply with a
Constitutional condition for the exercise of legislative power may be overt or it may be
covert. When it is overt, we say the law is obviously bad for non- compliance with the
requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non-
compliance is covert, we say that it is a ‘fraud on the Constitution’; the fraud complained of
being that the Legislature pretends to act within its power while in fact it is not so
doing. Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis, nothing
but a picturesque and epigrammatic way of expressing the idea of non-compliance with the
terms of the Constitution.1

ARTICLE 246 AND DOCTRINE OF COLOURABLE LEGISLATION

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.

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The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.
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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 of the
subject-matter of the statute, or in the method of enacting it, transgressed the limits of its
constitutional powers. Such transgressions may be patent, manifest or direct, but it may also
be disguised, covert and indirect and it is to this latter class of cases that the expression
“colourable legislation” has been applied in certain judicial pronouncements. The idea
conveyed by the expression is that although a legislature in passing a statute purports to act
within the limits of its powers, yet in substance and in reality it transgresses those powers, the
transgression being veiled by what appears on proper examination to be a mere pretence or
disguise.2 In other words, it is the substance of the act that is material and not merely the form
or outward appearance and if the subject-matter in substance is something which is beyond
the powers of that legislature to legislate upon, the form in which the law is clothed would not
save it from condemnation. The legislature cannot violate the constitutional prohibition by
employing an indirect method.3 “You cannot do indirectly what you cannot do directly.” It
may be honest motive or mala fides to the legislature making the law. The Court will
scrutinise the law to ascertain whether the legislature by device purports to make a law, which
though in form appears to be within its sphere, in effect and substance reaches beyond it. If, in
fact, it has power to make the law, its motives in making the latter are irrelevant. 4 The rule of
colourable legislation has no application if the legislature making the law has the competence
to make the law.5

The Doctrine of Colourable Legislation is relevant only in connection with the question of
legislative competence.6 Objections based on Colourable Legislation have relevance only in
situations when the power is restricted to particular topics, and an attempt is made to escape
legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the
real subject matter. Whether less than what was done might have been enough, whether a
more drastic provision was made than the occasion demanded, whether the same purpose
could have been achieved by provisions framed differently or by some other means, they are
wholly irrelevant considerations for testing the validity of the law. They do not touch the
ambit of the power but only the manner of its exercise.

RESEARCH QUESTIONS

Q. What are the limitations to the Doctrine of Colourable Legislation?

1) The doctrine has no application where the powers of a Legislature are not fettered by any
Constitutional limitation.
2) The doctrine is also not applicable to Subordinate Legislation.
3) The doctrine of colourable legislation does not involve any question of bona fides or mala
fides on the part of the legislature. The whole doctrine resolves itself into the, question of
competency of a particular legislature to enact a particular law.
2
Ashok Kumar v. Union of India, (1991) 3 SCC 498
3
K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 ; Anil Kumar v. Commr., AIR 1959 Ass 147
4
Gullapalli Nageswar Rao v. A.P. SRTC, AIR 1959 SC 308
5
K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375
6
B.R. Shankaranarayana v. State of Mysore, AIR 1966 SC 1571
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If the legislature is competent to pass a particular law, the motives which impelled it to act are
really irrelevant. On the other hand, if the legislature lacks competency, the question of
motive does not arise at all. Whether a statute is constitutional or not is thus always a
question of power.7

4) A logical corollary of the above-mentioned point is that the Legislature does not act on
Extraneous Considerations.8 There is always a Presumption of Constitutionality in favour of
the Statute. The principle of Presumption of Constitutionality was succinctly enunciated by a
Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.9:

“That there is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles.”

There is a very famous rule of interpretation as well that explains why the courts strongly lean
against a construction which reduces the statute to a futility. The Latin Maxim “construction
ut res magis valeat quam pereat” implies that a statute or any enacting provision therein must
be so construed as to make it effective and operative. The courts prefer construction which
keeps the statute within the competence of the legislature10.

5) When a Legislature has the Power to make Law with respect to a particular subject, it also has
all the ancillary and incidental power to make that law an effective one.11
6) As already discussed above that the transgression of Constitutional Power by Legislature may
be patent, manifest or direct, but may also be disguised, covert and indirect and it is only to
this latter class of cases that the expression “Colourable Legislation” is being applied.12

Q. What is the concept of Colourable Legislation in Canada? How is it different from the
Indian application?

Among various federal constitutions all over the world I have select Canadian federal
structure where the distribution of legislative power is quite similar like Indian constitution
and in the comparative study my intention is to find out the extent of accountability of
Canadian legislature in the light of colourable legislation.
THE Canadian pattern of distribution of legislative power has generally been followed in
Indian constitution. In the first place like section 92 of the British north America act 1867, the
Indian constitution enumerates the subjects with respect to which the legislature of the states
has exclusive power to make laws. Secondly it has followed the Canadian precedent and
enumerates the matters with respect to which the union parliament has exclusive power to
make laws.
The constitution act of Canada has make a division of its legislative department between the
dominion parliament and the legislatures of the provinces by sections 91 and 92 of the British

7
K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375
8
Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC 2042
9
AIR 1958 SC 538
10
CIT v. Teja Singh, AIR 1959 SC 352
11
I.N. Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650
12
The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889
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North America act 1867. This is the essence of Canadian federalism. The provincial
legislature has exclusive jurisdiction to legislate on the 16 subjects enumerated in section 92
where as the dominion parliament has exclusive jurisdiction over 30 subjects as mentioned in
section 91.
The rule of colourable legislations has obtained under the common law systems. The doctrine
of colourability under Canadian federalism is the idea that when the legislature wants to do
something that it cannot do within the constraints of the constitution, it colours the law with a
substitute purpose which will still allow it to accomplish its original goal. The Canadian
Supreme court in some judicial decisions declared an act colourably constitutional in this
sense. 
As per as colourable legislation concerned under the Canadian federal system as lefroy points
out that the parliament of Canada can not under colour of general legislation deal with what
are provincial matters only and conversely provincial legislatures cannot under the mere
pretence of legislating upon one of the matter enumerated in section 92 really legislate upon a
matter assigned to the jurisdiction of parliament of Canada. In order to find the true nature and
character of the law we need to look beyond this coloured purpose to the real purpose.
“Where the law making authority is of a limited or qualified character it may be necessary to
examine with some strictness the substance of the legislation for the purpose of determining
what is that legislature really doing.” That implies Where the legislation has absolute
jurisdiction to legislate any matter then it has no purpose to look into its motive of legislating
but whenever it has a limited jurisdiction the there was a need to find out whether that matter
is within that limited or qualified jurisdiction of the legislature. But in those circumstances the
real substance of that legislation should be taken into account. The legislation cannot violate
the constitutional prohibitions by employing an indirect method. In cases like these, the
enquiry must always be as to the true nature and character of the challenged legislation and it
is the result of such investigation and not the form alone that will determine as to whether or
not it relates to a subject which is within the power of the legislative authority.

CONCLUSION
The Doctrine of Colourable Legislation is also called “Fraud on the Constitution”. The failure
to comply with a Constitutional condition for the exercise of legislative power may be overt
or it may be covert. When it is overt, we say the law is obviously bad for noncompliance with
the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the
non-compliance is covert, we say that it is a ‘fraud on the Constitution’, the fraud complained
of being that the Legislature pretends to act within its power while in fact it is not so doing.
Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis, nothing but a
picturesque and epigrammatic way of expressing the idea of non-compliance with the terms of
the Constitution.13

The doctrine of colourable legislation does not involve any question of bona fides or mala
fides on the part of the legislature. The whole doctrine resolves itself into the question of
competency of a particular legislature to enact a particular law.

If the legislature is competent to pass a particular law the motives which impelled it to act, are
really irrelevant. On the other hand, if the legislature lacks competency, the question of
motive does not arise at all.

13
The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889
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The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889 15 Whether a statute is
constitutional or not is thus always a question of power. If the constitution of a State
distributes the legislative power amount 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 right, questions do arise whether the
legislative 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.

Such transgression may be patent, manifest or direct, but it may also be disguised, covert and
indirect and it is to the latter class of cases that the expression ‘colourable legislation’ has
been applied. The idea conveyed by this expression is that although apparently a legislature in
passing a statute purported to act within the limits of its power, yet in the substance and
reality, it transgressed these powers.

The legal position, therefore, is that the legislature can only make law within its legislative
competency. Its legislatives field may be circumscribed by specific legislative entries or
limited by fundamental rights by the constitution. The legislature cannot overstep the field of
its competency, directly or indirectly.

The court will scrutinize the law to ascertain whether the legislature by device purports to
make a law which though in form appears to be within its sphere,, in effect and substance
reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are
irrelevant.

The doctrine of colourable legislation is relevant only in connection with the question of
legislative competency.

BIBLIOGRAPHY
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BOOKS
1. Shukla, V.N.; Constitution of India; 12th Edition; Eastern Book Company,
Lucknow.

ARTICLES

1. Doctrine of Colourable Legislation by Lawteacher.com


2. Doctrine of Colourable Legislation and Article 246 by Ganesh Upadhyay
3. Scope of Colourable Legislation by Shodhganga

CASES

1. The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 882


2. Ashok Kumar v. Union of India, (1991) 3 SCC 498
3. K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375
4. Anil Kumar v. Commr., AIR 1959 Ass 147
5. Gullapalli Nageswar Rao v. A.P. SRTC, AIR 1959 SC 308
6. B.R. Shankaranarayana v. State of Mysore, AIR 1966 SC 157
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