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This article has been written by AASHI UPADHYAY of Ideal Institute of Management and Technology, University of law, Delhi. It has been written by her in course of her internship at Legal Soch Foundation.
Introduction:-
India has a federal shape of the presidency and has been united for over seven decades with strength being divided among the Centre and the States resulting from the federal shape of governance. The federal shape of the presidency has or greater phases of the presidency. Each degree of the presidency has its very own jurisdiction. The jurisdiction of the respective stages of the presidency is particular withinside the Indian constitution. The predominant function of federalism is the segregation of power among the Centre and the states. The essential provisions of the Indian Constitution can not be unilaterally modified via way of means of one degree of position. The federal system has the goal to guard and promote solidarity and accommodate regional diversity.
There was a consensus on power-sharing even earlier than independence. Leaders had been aware of the regional and linguistic diversity. The Constituent Assembly determined to shape a central authority that might be primarily based totally on the concepts of team spirit and cooperation among the Centre and the states which had been to have constitutional fame and an absolutely recognized place of activity. Therefore, below the Indian Constitution, the powers of the Center and the State are divided into 3 lists under Schedule Seven of the Indian constitution: first the Union list, 2nd the State list, and the final Concurrent list. Thus, each will comply with their strength to make legal guidelines in line with their list. So that neither of the 2 makes their regulation at the problem of every other’s list and there may be no guise of variations among the 2. If both of the 2 shall make regulation the usage of its power beyond competence for its purpose, it will be taken into consideration through the courtroom docket that the regulation is Colourable Legislation. Also, referred to as a Fraud Constitution.
However, if a legislative framework isn’t allowed to make legal guidelines in a specific place and does so besides not directly below the snatch of some other law, the doctrine of colorable legislation comes into play. The doctrine of colorable legislation is carried out to look at whether or not they may be in a position to enact the precise regulation or now no longer
Understanding- Doctrine of Colourable Legislation:-
Separation of powers means sharing of powers. In order to save the misuse of power through any individual organ of the government, the Constitution says that every one of those organs has to work out one-of-a-kind powers. This promotes a system of checks and balances. The Constitution has divided powers among the Centre and the states with their specific subject matters. But sometimes, the legislative frame enacts a law that falls out of doors its place of competence. This way that it has transgressed its powers and has not directly completed something which couldn't have been completed at once. This is referred to as the colorable exercise of legislative powers or indirectly making legal guidelines while prohibited from doing so directly. So, to test the transgression of legislative authorities, the doctrine of colorable legislation got here into existence.
Assume If you've got a fruit lawn and besides that, there's a playground. There are malingerers playing in the playground and on every occasion, they throw their toy into the lawn acquired by you and come to take that item back, they take a few fruits from there as well. But they break out by saying that they'd only come to acquire their toy. Here, the malingerers appear to interact in a single action under the garb of some other as collecting their very own toys from the ground is permissible and can not be prohibited. The colorable legislation additionally offers such questions in which one law is supposedly surpassed under the garb of some other. Colorable law is derived from a legal maxim- “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” this means that which is forbidden at once is likewise prohibited indirectly. In a way when a legislature doesn't have the power to make legal guidelines on a specific subject directly, it can’t make legal guidelines on it indirectly. Colorable legislation is one of the doctrines under the Indian Constitution. It essentially means colored law which isn't always its true color. So, every time the Union or state encroaches on their respective legislative competence and makes such legal guidelines, colorable law comes into the picture to decide the legislative responsibility of that regulation.
This doctrine is uniquely grounded upon the Latin maxim-- “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” that announces When something is prohibited at once, it is prohibited tortuouslyalso. The doctrine is used in the cases to decide questions of competency to enact a regulation whilst a legislature overtakes its conferred power and legislates upon something not directly, which it can not do overtly in an immediate manner.
Colorable law will stand up simply whilst the legislature has no power to shape a regulation at the problem depend as it isn't always protected withinside the listing assigned to it under the respective entries of the 7th scheduled, Or because of certain limitations, whether or not the third part of the charter or a few different power under the Indian constitution. Under Article 246 of the Indian Constitution, it makes provision the division of legislative powers among the Parliament and the State legislatures. It enumerates the legislative topics into 3 lists, first the Union List, the State List, and the Concurrent List withinside the 7th Schedule of the Indian Constitution. It’s needed to perform inside their respective legislative competence for the Centre and the State.
Sometimes the legislature makes such regulation, which seems to be inside its competence however its impact and essence lie beyond its boundary. Then the regulation could be declared void. In easy words, a one-of-a-kind color is given to the law (through the legislature to deliver it inside its limits) however, it can not prevent it from being declared an unlawful regulation. Such regulation is referred to as colorable law
Division of legislative powers :-
Article-246 of the Indian Constitution is all approximate problem matter law relating to who has electricity close to the one of a kind problem subjects for making legal guidelines. As we already examine that the powers had been allotted below 3 lists. The authorities that States and Centre had been categorized withinside the 7th schedule below three lists- Union listing i.e. List I, State list i.e. List II, Concurrent List, i.e. List III which is referred to below Article-246 of the Indian Constitution. The Union list contains regions that can be of countrywide significance like defense, atomic energy, overseas affairs, and so forth. It has a complete of ninety-seven gadgets on which the Parliament has the one-of-a-kind proper to make legal guidelines. Similarly, the one's objects are included withinside the State listing that is of neighborhood significance like trade, police, agriculture, etc. There are a complete sixty-one gadgets on which the State has one of kind power to make legal guidelines. The concurrent list includes fifty-two gadgets like adulteration, education, adoption, etc. regarding the nation and union each and concerning which each could make legal guidelines. Another set of powers is residuary powers which encompass all different subjects now no longer referred to in any of the lists like cyber legal guidelines. The States and Union are each required to perform inside their respective legislative competence.
If the legislature makes regulation below the guise of a topic while not having the specified competency to make legal guidelines on that precise problem then the Supreme Court can invalidate the regulation. Colorable law comes into query whilst there may be a query of competency of a specific law to enact a specific regulation. It demands situations the accuracy of an enacted regulation close to the frame that surpassed the regulation and analyzes whether or not the legislative frame has the power to make legal guidelines on that problem or now no longer. In case the legislature isn't permanently capable of the stated problem, then the regulation is stated to be “extremely vires”. When a legislature makes a regulation that looks to be inside its authority however in reality, it isn't always, then the regulation could now no longer have any validity. Even eleven though the color is given to the regulation for bringing it under the functionality it'd be declared as void. Colorable law emerges on every occasion the legislative bodies had no power to create legal guidelines on an object due to the fact both it turned into not included withinside the listing as according to Schedule 7 or for the constraints of Part III of the Constitution or every other provision of the Constitution. When the legislature does indirectly disobey the phrases of the Constitution and claims any Act to be within its power then it is a fraud on the Constitution.
Limitations- Colourable legislation:-
No application wherein there aren’t constitutional limitations. Meaning, regardless of the subject matter is given under the Scheduled Seventh within the 3 lists of the constitution, they are able to most effectively do their work by staying up to them and not going outside.
Not applicable for subordinating laws. It is based on the question of the competency of the particular legislature to enact a particular law by the legislature.
The assumption is constantly in want of the constitutionality of the law, and the burden of proof on that person who wants to demonstrate that there has been a clear violation of the constitutional principles. Meaning, if any person says that there is colorable legislation in any case, then that individual will have the burden of proof to prove the colorable law in that matter. And courts also make their own limitation in colorable legislation cases which use to resolve the cases.
Not involved if the regulation is relevant or irrelevant. The focus is on whether the legislature can legislate or not.
CASE LAWS:-
In the case Shri Prithvi Cotton Mills v. Broach Borough Municipality, the CJI granted legislative competence and stated that it’s not enough to simply declare that the court’s decision will no longer bind as it’s far equal to reversing the decision in the usage of judicial power which the legislature does not possess. A court’s decision ought to constantly bind in all situations except the conditions which are fundamentally altered. Hence, it is accepted that when the premise of the decision is genuinely changed by the legislature then there are zero cases of exercise of judicial power by the legislature.
State of Bihar Vs. Kameshwar Singh is the one and only case where a statute based on colorable legislation has been declared invalid. In this particular case, the Bihar Land Reforms Act, 1950 was held unconstitutional on the grounds that although it ostensibly purported to lay down the precept of compensation, it doesn’t lay down any such principle and therefore implicitly attempted to deprive the petitioner of any compensation.
Inference, when the legislature had the power to legislate on any issue, it had all the ancillary and incidental power to make the law efficient. So, colorable legislation is needed to fix the legislative accountability with references to some modifications in legislative capabilities.
When the issue of validity was taken to the Supreme Court of India in Janapada Sabha Chhindwara vs.Central Provinces Syndicate Ltd., it was held that it wasn’t for the court to deliver the omission and the legislature overruled the decision of the court without changing the premise of the decision. It was mentioned that article-141 which made the Supreme court judgment binding on all the courts in India, the legislature couldn’t say that declaration of regulation by the court was imprecise, invalid, or ineffective either as a precedent or between the parties.
In the case of the State of Tamil Nadu v. M. Rayappa Gounder the Madras Government attempted to reconsider certain theatre owners concerning escaped entertainment tax. It was held by the Madras HC that the Madras Entertainment Tax Act, 1939 did not authorize a reassessment. This act having been struck down by the High Court then the matter was taken in appeal to the SC by Tamil Nadu. It was observed that the effect of this provision was to overrule the decision of the Madras HC and not to change the regulation retrospectively.
Conclusion:-
Colorable legislation indicates an encroachment at the legislative strength. The doctrine of colorable legislation strictly prohibits doing oblique matters whilst it isn’t allowed to accomplish that directly. It checks whether the legislature has enacted a law as per its authorized competency or not. So, wherever there are constraints to make laws, the legislature has to follow the same otherwise it would be declared as ultra vires of legislative powers. If any law is made out of any guise, then the colorable exercise would be imposed on legislative authority. Legislative authority is the statute that legislates laws. They are elected by the people and work on behalf of the individual. The doctrine of colorable legislation acts as a check on them and if it finds incompetency then the law becomes invalid without there arises a need to determine its necessity and requirements. It only checks the competency of the law-making bodies and restricts overstretching power. As this doctrine doesn’t check whether the law is mala-fide or bona- fide and only examines the competency of its legislative authority, it will become an obstacle to the impediment to the capabilities of legislative authority.