Kinnori
in Labour Law
Asked July 19, 2013

doctrine of colourable legislation

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Can the doctrine of colourable legislation be applied to any constitutional amendment acts?

Answers 2

Default avatar
Aditya Marwah

Sometimes, a Legislature may enact a law which is apparently within its authority and scope but in substance it violates it constitutional jurisdiction. In such legislation, the outlet form of law is not important where as its substance should be considered. Such legislation or law is called colourable legislation. The doctrine of colourable legislation is based on the principle that what cannot be done directly cannot be done indirectly. When the question of the validity of such law arises before the courts, they apply the doctrine of colourable legislation and declare the law as invalid.

 

The legislature can only make laws within its legislative competence. If a statute is found to be invalid on the ground of legislative competence it does not permanently inhibit the legislature from re-enacting the same if the power to do so is properly traced and established. In such a situation it cannot be said that the subsequent legislation is merely a colourable legislation or a camouflage or to re-enact the invalidated previous legislation. The legislature cannot overstep the field of its competency, directly or indirectly

So the doctrine does not signify the colour of the legislation but it signifies whether the legislation while enacting a provision has acted according to its authorized power or usurping its power to make a law. The legislature is morally as well as legally accountable to the common people. The doctrine has no application where the powers of the legislature are not fettered by any constitutional limitations. So, any law made by disguise where there is a prohibition for making that law it will be deemed as colourable exercise of legislative power. In this manner the doctrine of colourable legislation is related to legislative accountability.

 

You can also refer to the Supreme Court’s decision in the case of K.C Gajapti v State of Orissa, AIR 1953 Ori 185 where the doctrine of colourable legislation has been explained. 

Agree Comment 0 Agrees almost 4 years ago

Default avatar
Rishabh Amber

 

Yes, the doctrine of colourable legislation any be applied to a Constitutional Amendment Act. This doctrine basically says that what cannot be done directly cannot also be done indirectly. Thus it refers to the question of competency of the legislature to enact a particular law or to amend the consitution. Therefore, the Court can apply this doctrine to check whether the legislature  is competent enough to bring in any constitutional amendment or not. 

Besides this, the doctirne of ultra vires is quite often also applied to any constitutional amendment to check its validity.

Agree Comment 0 Agrees almost 4 years ago

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