INTRODUCTION  

The doctrine of colorable legislation is a constitutional principle designed to ensure that legislators do not exceed their constitutional limits by enacting laws that will, seemingly within their legal authority, actually intrude into areas reserved for another legislative body. This doctrine is based on the maxim that what cannot be done directly cannot be done indirectly, and it serves to prevent the legislature from circumventing the constitutional boundaries through disguised or indirect actions. 

In India, this doctrine is essential for maintaining the federal balance as legislative powers are distinctly located between the Union and State under Articles 245 and 246 along with the 7th Schedule of the Constitution. The judiciary, particularly the Supreme Court, plays a crucial role in interpreting and applying this doctrine by examining the real intent and effect of a law, rather than just a formal appearance. If a law is found to be a mere facade to achieve an unconstitutional objective, it can be invalidated. A recent Supreme Court ruling highlights the judiciary’s responsibility in upholding constitutional integrity and preventing legislative overreach. 

ORIGIN AND BACKGROUND

The doctrine of colorable legislation is based on the Latin maxim ‘’ which means, that what cannot be done directly should not be done indirectly. This doctrine was conceptualized in British constitutional law as a response to the legislative tactics adopted by the legislature to circumvent the restrictions on their parliamentary powers. It was subsequently adopted in Canada and Australia, where federal constitutions required clear demarcations of legislative power between central and provincial governments. 

In India, this doctrine was introduced during the British Imperial government rule, particularly when the powers were distributed among the units of government under the 1935 Act. Even after independence, the founding fathers of the Constitution believed that this doctrine would further the doctrine of separation of powers thereby making it an integral part of the Indian Constitution. 

The Constituent Assembly members recognized the possibility that the legislature might attempt to exceed its constitutional power not overtly, but through indirect or disguised means. This concern was explicitly addressed in the debates where it was noted that if legislation is a colorable device of contrivance to outstep the limits of the legislative power, it would be invalid. The Assembly agreed that such attempts would be considered a fraud on Constitution and would not be permitted echoing the doctrine’s core principle that what cannot be done directly cannot be done indirectly either. 

The debate also clarified that the judiciary would have the authority to examine whether a law seemingly within the legislative competence, was in fact an attempt to circumvent the constitutional limits. This was seen as essential for maintaining the federal balance and upholding the supremacy of the Constitution. 

KEY PROVISIONS INVOLVED 

Article 245 of the Indian Constitution deals with the extent of laws made by the Parliament and by the legislature of the state. This provision of the Constitution allows the legislature to make laws within the territorial limits of India. In other words, it provides for territorial division of lawmaking power where the Union legislature has the power to make laws which extend to the whole of India and the states have jurisdiction to make laws within their respective territories. 

Article 245 is read with Article 246 of the Constitution which provides for subject matter division of the Union Legislature and the State Legislature. Article 246 divides the subjects into three lists namely Unionist State List and Concurrent List. In the Union list, the Union legislature has the sole power to make laws, the state legislature has the legislative jurisdiction on the subjects in the state list. In the concurrent list, those subjects are enumerated which are under the competence of both Union and state legislature. However, the bare reading of Clause 2 of Article 246 provides that in case of any repugnancy or inconsistency found in the Union and State legislature on making laws on the subject enumerated in the Concurrent List, the Union Legislature laws shall prevail.  

Schedule Seven of the Indian Constitution lists these subjects as provided for under Article 246 of the Indian Constitution. This demarcation is essential to maintain the federal structure of India.  

 RATIONALE BEHIND SUCH DEMARCATION 

There are four salient features which mark the distribution of powers, they are: 

1. There is a threefold distribution of legislative powers represented by three lists, that is, union list, state list, and concurrent list. 
2. The supremacy of federal laws is maintained under 2 situations, 
3. Where it is a subject of a concurrent list. 
4. There, the loss of both the Union and central legislature has a substantial impact on human activity. 
5. If any power does not find its mention in any of the three lists, then, it falls under the union legislature’s jurisdiction. 
6. In certain situations, apart from emergencies, the Union legislature has the power to make laws, even on the state list. 

CASE LAWS AND CASE STUDIES 

The expression colorable legislature conveys the meaning of something highly tainted, or something done with a bad motive. Any law does not get struck down the law simply on bad motive, but because it is made out of the legislative competence. The adjective ‘colorable’ means the lack of competence or capacity to do an authorized task but it was done under the guise of authority. This is a fraud on the Indian Constitution as the legislature, even after such demarcation, extends its authority to the area where it lacks authority. 

If any law is made by a legislature, that is found to be inconsistent with the list of subjects enumerated under the seventh schedule, the courts have the power to do judicial review and strike down that law. Through this exercise, the courts ensure that the sanctity and supremacy of the Constitution are maintained. 

In the case of K.C. Gajapati Narayan Deo v. State of Orissa. The constitution bench gave the unanimous judgment. In this case, the impugned law was related to the drastic upward revision of the rates of agricultural income tax. The petitioner’s contention was based on the absence of a genuine revenue-raising measure; instead, it was alleged that that was done with a view to scale down the amount of compensation that would be payable to zamindars whose estates were going to be acquired. The contention was rejected, and it was pointed out that the court was not concerned with the good or bad motive behind the legislation but only with the legislature’s competence in the matter. Justice Mukherjee, in a beautiful paragraph, explained that when a legislature’s competence was limited, the legislature could transgress the limits in an open and overt manner or in a covert way. It is when the legislature resorts to the latter kind of method that is the said that legislation is colorable. These days we also call it a fraud on the Constitution. 

Another such landmark case was the State of Bihar v. Maharajadhiraj Sir Kameshwar Singh. Heading the state government passed 3 laws to abolish the system of zamindari and the role of intermediaries. The landlords filed the case in the High Court. Challenging the legitimacy of these laws, the High Court declared one law to be invalid, meanwhile other 2 were held to be constitutional. Aggrieved by such a decision, the landlords decided to challenge it in the Supreme Court. When this petition was raised, the. When this petition was raised, the 1st Amendment to the Constitution was introduced, adding the 9th Schedule, which provides immunity from judicial review on the subjects enumerated in the said schedule. This took away the opportunity of the zamindars to challenge the laws on the grounds of it infringing Part 3 of the Constitution. However, the laws were challenged on the grounds of it being a colorable legislation. The court ruled in favor of the petitioners and claimed that the impugned legislation passed by the state legislature was not in compliance with the constitutional principles. This non-compliance could be an overt or covert action by the legislative bodies wherein they pretend to act within their power while not doing so. Therefore, it is declared a fraud on the Indian Constitution. 

A recent case was of the Animal Welfare Board of India V Union of India (2023). The petitioners challenged the famous traditional bull race practiced in the states of Tamil Nadu, Maharashtra, and Karnataka, known as Jallikattu or Bullock cart race, and said that this practice was in violation of the Provision of Prevention of Cruelty to Animals Act, 1960. They further prayed to the court to hold Tamil Nadu Regulation of Jallikattu Act, 2009 as void. The Supreme Court ruled that the court cannot strike down legislation on the presumption of failure to comply with the law. What held that the Act introduced by this date is not a colorable legislation, but instead they led to a doctrine of faith and substance and list three of the seven Schedule of the Constitution of India. 

CONCLUSION 

The doctrine of tolerable legislation stands as a key constitutional safeguard, ensuring that legislatures operate strictly within the scope of their designated powers. It serves as a barrier against any attempt to misuse or overstep legislative authority, emphasizing the real substance of the law. Taking precedence over its outward appearance this principle enables the courts to look beyond the facade of a loss of validity and scrutinize its actual purpose and impact.  

Through significant rulings, that is, from KC Gajapati Narayan Dev to the Animal Welfare Board, the Indian judiciary has consistently applied this doctrine to uphold constitutional integrity and preserve the balance of powers between the Union and the states. This doctrine is concerned not with the intention behind the law, but with whether the legislature was empowered to enact it. 

In India’s ever-evolving legal and political landscape, this doctrine is vital for maintaining the rule of law, preventing any indirect breach of constitutional limits, and promoting transparency and responsibility in the lawmaking process. Ultimately, it upholds the Constitution’s supremacy. By treating indirect violations of legislative powers as seriously as direct ones. 

AUTHOR: KAVYA GUPTA