The doctrine of colourable legislation is based on the maxim that what cannot be done directly cannot also be done indirectly. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it cannot do it directly. Thus, it refers to the competency of the legislature to enact a particular law. 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.
The Doctrine From The Eyes Of Supreme Court
Legislation may be regarded as colourable when a legislature having no power to legislate frames a legislation so camouflaging the same as to make it appear to fall within its competence. The essence lies in fact that the legislature cannot overstep the field of its competency indirectly. Such an instance is clear fraud on constitution.
The Supreme Court has explained the meaning and scope of doctrine of colourable legislation in the case of K.C. Gajapati Narayan Deo v. State Of Orissa as follows:
“ If the constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by the constitution in specific legislative entries, or if there are limitations on the legislative authority in the shape of Fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to 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 or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements.”
Further the Supreme court in this case went to opine that “the idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise.”
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 beyond the powers of the legislature to legislate upon the form in which the law is clothed cannot save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing indirect methods.
Furthermore, in the case of R.S Joshi v. Ajit Mills, The Apex court observed that “In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is struck on it, and then it is colourable legislation.”
It is very important to note that if the legislature is competent to pass a particular law, the motives, which impel it to pass the law are really irrelevant. The doctrine of colourable legislation has reference to the competence and not to motives, bona fides or mala fides of the legislature. The motive of the legislature in the making of a law is irrelevant. It is beyond the scrutiny of courts. The propriety, expediency and necessity of legislative acts are for the determination of legislative authority and are not for determination by the courts. Moreover, if the Legislature has the power to make law, the motive in making the law is “irrelevant.
It is rare that a law is declared bad on the ground of colourable legislation. The State Of Bihar v. Kameshwar Singh is the only case where a law has been declared invalid on the ground of colourable legislation. In this case, the Bihar Land Reforms Act, 1950, was held void on the ground that though apparently, it purported to lay down the principle for determining compensation yet, in reality, it did not lay down any such principle and thus indirectly sought to deprive the petitioner of any compensation.
The Constitution distributes legislative powers between the State Legislatures and Parliament, and each has to act within its sphere. In respect of a particular legislation, the question may arise whether the legislature has transgressed the limits imposed on it by the constitution. Such transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect. It is to this latter class of cases that the expression colourable legislation. The underlying idea is that although apparently, a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise. If that is so, the legislation in question is invalid.