Introduction
The Doctrine of Colourable Legislation is based on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which states that what cannot be done directly should not be done indirectly as well. When a legislator oversteps its granted power and indirectly legislates on something it cannot do directly, the notion is utilized in instances to assess problems of competency to pass a law.
The subject matter of the law appears to be within the power of the legislature on the surface, but the associated impact or intent of the matter falls outside the realm and jurisdiction of the legislature.
So, in a way, the concept limits the overstretching or exploitation of constitutionally authorized power in a clandestine manner. This is why the theory is sometimes known as “constitutional fraud.” It should be noted that the concept does not apply when the challenged law is beyond the judicial power of the legislature.
Evolution of theory of colourable legislation
The theory of colourable legislation evolved during the colonial period when self-government expanded its position in significant sections of the British Empire and the Commonwealth. The legislative topics were therefore divided into Central and Provincial units, and each enactment was examined against the theory of colourable to keep a check on the powers assigned to these divisions. T
he legislative topics were then divided into Central and Provincial divisions, and each enactment was examined against the theory of colorable legislation to keep a check on the powers assigned to these divisions. From then, the theory made its way to India, which adopted the doctrine’s concept based on Canadian and Australian judicial precedents.
The Supreme Court upheld the constitutionality of the Orissa Agricultural Income Tax Amendment Act, 1950 in the case of K.C. Gajapati Narayan Deo v. The State of Orissa. The court ruled that the Act was not colorable legislation since it was passed by the State Legislature.
And stated that, “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 to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers.”
Cases Concerning Colourable Legislation
In the case of Shri Prithvi Cotton Mills v. Broach Borough Municipality, the CJ granted legislative competence and said that simply declaring that the court’s ruling is not binding is similar to overturning the decision in the use of the judicial authority that the legislature does not have.
The State of M.P. v. Mahalaxmi Fabric Mills Ltd. was another case. In that case, the problem was the Parliament’s decision to raise royalty rates from 400% to 2000% in the Cess and Other Taxes on Minerals Validating Ordinance, 1992, which was a colourable device. It was granted not to develop resources, but to compensate the state government.
The federal government had the authority to increase royalty rates under the Mines and Minerals (Regulation and Development) Act of 1957. In 1982, numerous coal-producing states imposed and received coal development cess, which was later ruled to be illegal and beyond the legislative authority of the state assembly.
The Supreme Court maintained the notification’s legality, ruling that it could not be considered a convenience device. Minerals belonged to the state, and any damages incurred should be reimbursed. The Supreme Court maintained the notification’s legality, ruling that it could not be considered a convenience device. Minerals belonged to the state, and any damages incurred should be reimbursed.
Limitations Under the Colourable Legislation
- There is no applicability when there are no constitutional constraints. That is, whatever the subject matter is specified under Scheduled Seven within the three lists of the constitution, they can only conduct their work by remaining up and not going outside.
- It makes no difference whether the legislation is relevant or irrelevant. The focus of this concept of colourable legislation is solely on whether or not the legislature has the authority to legislate.
- The presumption is always in favour of the law’s legality, and the burden of evidence is on the individual who wishes to demonstrate a clear breach of constitutional norms. Indicating, if anybody claims that there is colourable legislation in any situation, that person bears the burden of proving the colourable legislation in that case. In colourable legislation instances, the court also creates the limitations that it uses to settle the issues.
- Subordinate legislation is not covered. It is solely dependent on the question of the legislature’s capacity to enact certain legislation.
Conclusion
The state cannot modify the appearance or aspect of any legislation to execute it within the subject matter included in the 7th Schedule of the Indian Constitution, which is not within their authority. Because, according to the concept of colorable legislation, that cannot be done directly or indirectly. Colorable legislation is also necessary to address legislative clarity and make certain changes to the legislative system
