SOME IMPORTANT DOCTRINES OF THE CONSTITUTION
1. DOCTRINE OF COLOURABLE LEGISLATION
This doctrines states that something which cannot be done directly cannot be done indirectly also.
For example, there is no law making power with respect to acquisition of property. But the legislature makes a law so as to make the property as good as acquired. If it is shown that the effect of the law is that of what the legislature does not have the competence to make law – the law would be rendered invalid.
LANDMARK CASES AND IMPORTANT ILLUSTRATIONS:
1. The property of a Zamindar was acquired or vested in the state. The total revenue of the properties was to go to the state and the state would then return 1⁄2 of the revenue to the Zamindar as compensation. – The court held that for acquisition of property it has to be shown the acquisition is for public purpose and proper compensation has been paid. In the present case it was held to be no compensation.
2. The legislature overrules the judicial decision without changing the very basis of the judicial decision. In such a case, the legislature has acquired judicial power by way of legislation as also observed in Indira Nehru Gandhi v. Raj Narain (1975).
3. K.C. Gajapati Narayan Deo v. State of Orissa (AIR 1953 SC 375)
In this case, The Orissa Agricultural Income Tax (Amendment) Act, 1950 greatly enhanced the rate of tax on agricultural income. The validity of the Act was challenged on the ground that it was not a bonafide statute at all but is a colourable piece of legislation, the real object being to reduce by artificial means the net income of intermediaries so that the compensation payable to them under the Orissa Estates Abolition Act, 1952 be kept as low a figure as possible, agricultural income tax being deducted from the gross income
in order to arrive at the net income on the basis of which the amount of compensation is to be determined.
It was held that Entry 46 L. II Taxing on Agricultural Income – The state legislature has undoubted competency to legislate on agricultural income tax and the Act purports to increase the existing rates of income tax. The increase in rates may be unjust or inequitable but that does not affect the competency of the legislature.
Even if it is assumed that the Act was made under the guise of a taxation statute with a view to accomplish an ulterior purpose, namely, to reduce the amount of compensation, still it cannot be regarded as a colourable piece of legislation. As per Entry 42 – L. III The legislature can adopt any principle of compensation in respect of properties acquired. Whether the deductions are large or small, inflated or deflated, they do not affect the constitutionality of a legislature under this entry.
It would be colourable legislation only if it is shown that the real object is to attain something which is beyond any constitutional limitation or that it lies within the exclusive field of other legislature. It could be noticed that the two Acts did not make any reference to each other and were in no way interconnected. Both of them are within the competence of the legislature and hence valid.
The motives which impel to enact the law are irrelevant. However, if there was some mention of one Act in the other or the two Acts were expressly declared to be interconnected and the court could have read the ulterior purpose and in such a case motive would have become provided in Article 31(2), thereby characterizing the taxation statute as a colourable legislation, the purpose being to overcome the payment of compensation.
4. Case: Moopil Nair v. State of Kerala (AIR 1961 SC 552):
The provisions of the Travancore Cochin Land Tax Act of 1955 was declared to be unconstitutional in view of Articles 19 and 19(1)(f). It was found that a person making an income of Rs. 3,100 per year was liable to pay Rs. 54,000 under its operative provisions. The Supreme Court held that the provisions of the Act were confiscatory in character as in passing the Act the legislature had merely adopted a device and a cloak to confiscate the property of the citizen taxed.
2. THE DOCTRINE OF IMPLIED / ANCILLARY POWERS
The Honourable Supreme Court in Calcutta Gas Ltd. v. State of West Bengal (AIR 1962 SC 1044) has held that the widest possible and the most liberal interpretation should be given to the language of each entry. “A general word used in an entry must be construed to the extent of all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it.”
In an earlier case, United Provinces v. Atique Begum (AIR 1941 FC 16), Gwyer C.J. had held that “the subjects dealt with in the three lists are not always set out with scientific precision. It would have been practically impossible to define each item in the lists in such a way as to make it exclusive of every other item in that list and the parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import…. Each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it.”
Ancillary or incidental powers are those powers which are necessary to maintain the express powers given in the lists e.g., an entry expressly dealing with employment and labour also included all related powers, viz., payment of wages, working hours etc. as ancillary powers. Similarly, an entry dealing expressly with forests also includes as ancillary powers, the power of aforestation, deforestation, planning, etc.
Justifying the doctrine of implied powers, Gajendragadkar J. in Jagannath Baksh Singh v. State of Uttar Pradesh (AIR 1962 SC 1563) held:
“It is an elementary and cordial rule of interpretation that the words used in the constitution which confer legislative power must receive the most liberal construction and if they are words of wide amplitude, they must be interpreted so as to give effect to that amplitude… A general word used in an entry… must be construed to extend to all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it.”
When an Act passed by a legislature is challenged on the ground of incompetence, the enquiry has to done be at two levels:
1) Whether the Act is competent – This can be express and if not then we have also to see whether it is implied or incidental. And if yes, then
2) Whether there is any express limitation – This has to be read expressly in the constitution e.g. in the provisions for fundamental rights etc.
In the case of United Provinces v. Atique Begum (AIR 1941 FC 16), the principal question to be decided was whether the regularization of Remission Act, 1938, an Act of the U.P. Legislature was within the competence of the U.P. Legislature. Entries. 21 and 22 of List II dealt with the subject matter of rent. Nowhere the expression ‘remission’ was used. The validity of the remission Act was challenged on three grounds:
i. The legislation did not have competence to remit the rent or to regulate the remission. ii. Whether the executive acts can be retrospectively validated by the legislature? iii. The jurisdiction of the court was challenged.
As to Contention 1: The court held that the general description words in item 21 include “the collection of rents” and if a provincial legislature can legislate with respect to ‘rent’, it can legislate with respect to the remission of rents also, e.g. item 24 deals with ‘fisheries’. It also includes the regulation of fishing and the prohibition of fishing altogether in particular places. Accordingly the court held that the legislation in question is ancillary to item 21 of the Provincial List.
As to Contention 2: The court held that there is no such entry as “validating of executive orders” in any of the lists. Nevertheless, it was incidental to all the entries and the British Parliament did not expressly include it because it did not think it necessary to do so.
However the court refrained from enumerating the incidental matters in the lists, even Entry 21. It observed that “any attempt to enumerate in advance all the matters which are to be included in one of the more general descriptions will be hazardous, as the lists of ancillary item is not always exhaustive. It would be wiser to judge in each case as it comes before the court.”
In R.D. Joshi v. Ajit Mills (AIR 1977 SC 2279), the constitutional validity of Section 37(1) and 46 of Sales Tax Act, 1959 was challenged. Section 46 prohibited collection of Sales Tax by any person in respect of goods on which by virtue of Section 5 no tax was payable. The collection of such tax was made a penal offence, liable to be punished and fined. Also the amount so collected could be forfeited by the State Government. The question was whether such punishment and forfeiture fell within the ambit of E. 54 read with E. 64. The Supreme Court held that the power was ancillary to the subject matter of Es.64 and 54. “Penal sanction for enforcing fiscal legislation for protecting public interest is a part of the ancillary powers.”
SITUATIONS WHERE THE DOCTRINE OF IMPLIED POWER DOES NOT APPLY (SOME ILLUSTRATIONS)
1) Abdul Quadar & Co. v. S.T.O. (AIR 1964 SC 922): There in a law permitting the realization of the amount wrongfully imposed as sales tax by an ordinary dealer was challenged. The Supreme Court held that this money has no indicia of tax. Since it is illegal and its recovery by the state from the dealer is in no way fairly and reasonably connected with the topic on sale of goods. The doctrine of ancillary powers cannot be used a cloak for extending the power of a legislature so as to include a matter which is specifically provided in a separate entry.
2) R.M.D. Chamarbangwala v. State of Mysore (AIR 1962 SC 594): The power with respect to betting and gambling in E.34 of List II cannot include the power to impose taxes on betting and gambling which is specifically provided in E.62 of List II.
3) C.P. Officer v. K.P. Abdullah & Bros. (AIR 1971 SC 792): The power to levy tax would not include the power to confiscate the goods as ancillary thereto.
IMPORTANT CASES
1) Megh Raj v. Allah Rakha (AIR 1947 PC 72): The power to legislate with respect to land includes the power with respect to mortgages of land as a subsidiary subject.
2) Arvind Sugar Mills Ltd. v. State of Gujarat (ILR 1966 Gujarat 313): The power to make laws with respect to labour welfare will justify the state to take over and utilize for the benefits of workers as a class the ‘unpaid accumulation’ belonging to the employees, but which were not claimed by them.
3) Rai Ramkrishna v. State of Bihar (AIR 1963 SC 1667): The power to make laws on a subject includes the power to make validating laws retrospectively, if the existing law on the subject is struck down as unconstitutional.
