Reading time : 10 minutes
Have you heard of the Fraud Constitution? No, many people may not have heard it because everyone would have heard it as the doctrine of Colourable Legislation used by the courts of India. In simple words, the meaning of the Doctrine of Colourable Legislation that ‘if you could not do anything directly, also you cannot do indirectly.’ Under the colour or guise of the power given for the other purposes, the legislature cannot demand to achieve that another purpose which it is otherwise not competent to the legislature in pursuance of the Indian Constitution. Changing its colour, form, or language does not make the wrong thing right, because wrong is always wrong. Therefore, under the Indian Constitution, the powers of the Center and the State are divided into three lists under Schedule Seven of the constitution: first the Union list, second the state list and the last Concurrent list. Thus, both will follow their power to make laws according to their list. So that neither of the two makes their law on the subject of each other’s list and there is no guise of differences between the two. If either of the two shall make a law using its power beyond competence for its purpose, it shall be considered by the court that the law is Colourable Legislation. Also, called a Fraud Constitution.
Understanding the Doctrine of Colourable Legislation
The doctrine of Colourable Legislation is based upon the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” that says When something is prohibited directly, it is prohibited indirectly. The doctrine is used in the cases to determine questions of competency to enact a law when a legislature overtakes its conferred power and legislates upon something indirectly, which it cannot do in a direct manner.
Colourable legislation will arise merely when the legislature has no power to form the law on the subject matter because it is not included in the list assigned to it under the respective entries of seventh scheduled, Or due to certain limitations, whether the third part of the constitution or some other power under the constitution. Under Article 246 of the Indian Constitution, it makes provision the division of legislative powers between the Parliament and the State legislatures. It enumerates the legislative subjects into three lists, first the Union List, the State List, and the Concurrent List under the Seventh Schedule of Indian Constitution. It is required to operate within their respective legislative competence for the Centre and the State.
Sometimes the legislature makes such law, which appears to be within its competence but its effect and essence lie beyond its boundary. Then the law would be declared as void. In simple words, the different colour is given to the law (by the legislature to bring it within its limits) but, it cannot prevent it from being declared an illegal law. Such law is called as colourable legislation.
Now, some eminent and important cases regarding the colourable legislation. The most renowned case was The State of Bihar Vs Kameshwar Singh in 1952. The issue was that the constitutional validity of the three state Acts had to be examined by a court called the Bihar Land Reforms Act, 1950. Arrears of the rent due to the landlord prior to the date of acquisition were to vest in the state, and half of these arrears were to given to the landlord as compensation. According to entry 42, on the compensation of property acquired for the purpose of the Union / State or on list third for another public purpose, is determined, ‘was amended as a whole and returned one-half meaning. It invalidated the Bihar Land Reforms Act,1950. It held that the provision of the Act relating to the payment of compensation for the acquisition of surplus land was only a pretension and not a reality.
Another case was the State of M.P. V. Mahalaxmi Fabric Mills Ltd. In that case, the issue was increasing the royalty rates from 400 per cent to 2000 per cent by the Parliament in the cess and other taxes on minerals validating Ordinance, 1992 was a colourable device. It was issued not for the development of minerals but for compensating the State government. The facts that, the central government had the power under the Mines and Minerals (Regulation and Development) Act, 1957 to increase the rates of royalty amount. In 1982 several coals producing states imposed, and received coal development cess, which was held to be invalid and beyond the legislative competence of the state legislature after that the ordinance has been passed. The Supreme Court upheld the validity of the notification and held that it could not be said to be a convenience device. Minerals belonged to the state and the losses suffered by them should be repaid. The Supreme Court upheld the validity of the notification and held that it could not be said to be a convenience device. Minerals belonged to the state and the losses suffered by them should be repaid.
In the case of the K.C. Gajapati Narayan Deo V. The state of Orissa, The Supreme Court while, retaining the validity of the Orissa Agricultural Income Tax Amendment Act, 1950. The court held that the Act was not colourable legislation as it falls within the legislative capacity of the State Legislature.
In the case of the K.T. Moopil Nair V. The state of Kerala, The Supreme Court declared the Travancore Cochin Land Tax Act,1955 as invalid. The court said that the Act violated Articles 14 and 19(1)f) and its provisions were confiscatory in nature.
In the case of M.R. Balaji Vs. The state of Mysore, the Supreme Court quashed the state order declaring 68 per cent seats in educational institutions to backward class students void. It is believed that the executive order violated Article 15 (4) and was, therefore, a fraud on the Constitution.
Limitations of Colourable legislation
- No application where there are no constitutional limitations. Meaning, whatever the subject matter is given under the Scheduled Seven within the three lists of the constitution, they can only do their work by staying up to them and not going outside.
- Not applicable to subordinate legislation. It is only based on the question of the competency of the particular legislature to enact a particular law by the legislature.
- Not concerned if the law is relevant or irrelevant. In this doctrine of colourable legislation, the focus is only on whether the legislature can to legislate or not.
- The presumption is always in favor of the constitutionality of the law, and the burden of proof on that person who wants to show that there has been a clear violation of the constitutional principles. Meaning, if any person says that there is colourable legislation in any case, then that person will have the burden of proof to prove the colourable law in that matter. And the court also makes its own limitation in colourable legislation cases which use to resolve the cases.
There are two types of government, the Unitary Government and the Federal Government. In Unitary government, the maximum or full powers are derived by the Centre. e.g., France, Japan, China etc. In the Federal government, the division of powers is derived between both the Centre and the state. e.g., the United States, India etc. In India, only at the time of emergency, the Centre would become more powerful, and the State would become less powerful. Only at that time, India uses Unitary Government and rest India use federal government.
So, as per the Indian Constitution, the powers of the Centre and State divided into three categories. First legislative relations Article (245 to 255), second Administration relations Article (256 to 263) and Financial relations Article (264 to 293).
The main relation is the legislative relations between the Centre and the State. Article (245 to 255) mentioned the legislative powers. Also, mentioned the Territorial and Subject-Matter Jurisdiction. Colourable legislation is used by the courts to settle a dispute over the jurisdiction of the subject matter. Under the Seventh Schedule, in Article 246 of the Constitution of India, Parliament can make a law on the Union List(I) and the Concurrent List (III). The State legislature can make the law only on the State list (II). If a new subject comes into nature, then the only Parliament has the power to legislate on it. It is questioned under Article 248 (2) of the Indian Constitution. But this can change under exceptional circumstances. Under National Emergency, Raja Sabha passes a resolution, on the state’s request and implementing the international agreement. Hence, all these subjects have been distributed to the Centre and the State in their respective lists.
However, sometimes the state makes a law on the subject of the Union List which is not under its jurisdiction, the State makes such a law for itself but it indirectly encroaches the subject of the Union List, which goes further. Disputes occur between the state and the Centre. So, the simple thing is that the state is required to enact laws within its prescribed jurisdiction and not beyond it and colourable legislation is used by the court to prevent this arbitrariness and to know the validity of the law. Also, we have already discussed the related cases above.
In the end, we can conclude that the state cannot change the colour or appearance of any law to enforce it under the given subject-matter in 7th Scheduled of Indian Constitution, which is not under their jurisdiction. Because according to the doctrine of colourable legislation also, something you cannot do directly, you cannot do it indirectly.
 State of Bihar V. Kameshwar Singh, AIR 1952 SC 252
 State of Madhya Pradesh V. Mahalaxmi fabric mills ltd, AIR 1995 SC 2213
 K.C. Gajapati Narayan Deo V. The state of Orissa AIR 1953 Ori 185
 K.T. Moopil Nair V. The state of Kerala 1961 AIR 552, 1961 SCR (3) 77
 M.R. Balaji Vs. The state of Mysore 1963 AIR 649
Author: Aditya Kohli, Dharmashastra national law university, Jabalpur, M.P.
Editor: Kanishka Vaish, Editor, LexLife India.