This is applied when the legislature enacting the law has transgressed its power as is mentioned in the constitution. This doctrine is also called as fraud on the constitution. The doctrine of colourable legislation has reference to competency, and not to the motives, bona fides or malafides, of the legislature. In india, legislative powers of parliament and the state legislatures are conferred by article 246 and distributed by list i, ii, and iii, in the seventh schedule of. The doctrine of colourability is the idea that when a legislature wants to do something that it cannot do within the constraints of its governments constitu. The doctrine of colorable legislation means where the constitution of a state distributes the constitutional realms defined by specific legislative entries or where there are limits on the legislative authority in the sense of fundamental rights, questions arise as to whether the legislature has not, in a particular case, the subjectmatter of the legislation or the process of activation the policy does not require any issue on the part of the legislature about bonafide or malafide purpose. The question of colourable legislation was fully discussed by the supreme court in k.
Whenever, legislature tries to shift this balance of power towards itself then the. Colourable legislation does not involve the question of bonafides or malfides. The doctrine of colourable legislation doctrine of colourable legislation, like any other constitutional law doctrine, is a tool devised and applied by the supreme court of india to interpret various constitutional provisions. Article 245 and 246 makes it more clear by specifying the extent and subject a matter of the parliament and state legislature to make laws and resolves the matter. Pdf the doctrinaire trident testing constitutionality of the laws. It was observed by the supreme court that the act was regarding the taxing of agricultural income as described in the entry 46 of the state list of 7 th schedule. It comes to know while the legislature purporting to act within its power but in reality, it has transgressed those powers. Watch the full video first so that you develop an understanding of t.
The doctrine of colourable legislation tests the competence of legislature against an enacted law. What is the doctrine of colorable legislation, and what are. The doctrine of colourability is the idea that when the legislature wants to do something that it cannot do within the constraints of the constitution, it colours the law with a substitute purpose which will still allow it to accomplish its original goal. The doctrine of colourable legislation is a tool devised by courts which has proven to be guiding principle in construing legal competence while interpreting constitutional provisions.
The doctrinaire trident testing constitutionality of the laws. This is part 2 of the doctrines of the indian constitution, this lesson deals with 2 doctrines that is doctrine of repugnancy, and doctrine of colourable legislation. The doctrine of pith and substance lawsisto legal news. Introduction with the enactment of laws by different legislative bodies all over the world, conflict of laws is an unavoidable issue. Ii violation of fundamental rights part iii or any other constitutional requirement or limitation like for eg. The doctrine of colorable legislation means where the constitution of a state distributes the constitutional realms defined by specific legislative entries or where there are limits on the legislative authority in the sense of fundamental rights, questions arise as to whether the legislature has not, in a particular case, the subjectmatter of the legislation or the process of activation the. It is a guiding principle of immense utility while construing provisions relating. Definition of law o personal law o constitutional amendment act an extra hour if. Doctrine of colorable legislation you cannot do indirectly what you cannot do directly. Principles of constitutional interpretation law and beyond. It expressly provides that all persons who are members of the defence services or the civil services of the union or of allindia services hold office during the pleasure of the president. Legislation is considered as colourable when a legislature having no power or legislative competence.
What do you mean by colourable exercise of power in. What is the doctrine of colorable legislation, and what. In this case is the court will look in the true nature and character of the legislation and for that its object, purpose or design to make the law. Apr 24, 2020 the doctrine of colourable legislation is a tool devised by courts which has proven to be guiding principle in construing legal competence while interpreting constitutional provisions. The whole doctrine resolves itself into the, question of competency of a particular legislature to enact a particular law. It is not for the courts to decide and scrutinise the policy which led to the enactment within the. Before knowing what this doctrine is and how it is applied in india, let us first understand the genesis of doctrine of colorable legislation. Definition of law o personal law o constitutional amendment act an extra hour if needed thr ee right to equality i eight lectures. In india doctrine of colorable legislation signifies only a limitation of the lawmaking power of the legislature. The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is in the essence a question of vires or power of the legislature to enact the law in question. Explain the rule of colourable legislation with decided. The doctrine of colorable legislation becomes applicable whenever legislation seeks to do in an indirect manner what it cannot do directly. Doctrine of colourable legislations lawsisto article news. The expression colourable legislation simply means what cannot be done directly, cannot be done indirectly too.
The primary function of the legislature is to make laws. In simpler terms it means indirectly doing something which cannot be done directly. The doctrine of colourable legislation means if the constitution of a state distributes the legislative 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 not, in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power. The question whether a law is a colourable legislation and as such void, does not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether, though the legislature has purported to act within the limits of its powers, it has in substance and reality, transgressed those powers, the transgression being veiled or disguise. In addition to questions of excess of power openly exercised, there may arise questions of excess of power covertly exercised. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it cannot do it directly. In india doctrine of colorable legislation signifies only a limitation of the law making power of the legislature. Short speech on the doctrine of colourable legislation. Indian judicial doctrines principles of constitutional. This doctrine is a tool used to determine the legislative competence of laws enacted by various legislatures. The doctrine of pith and substance was first acknowledged in canada. The question whether a law is a colourable legislation and as such void, does not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether, though the legislature has purported to act within the limits of its powers, it has in.
Therefore, it is a means to implement the separation of powers and impose judicial accountability. Doctrine of colorable legislation is attracted to take care of legislative. Doctrine of colourable legislation introduction doctrine of colorable legislation like any other constitutional law doctrine is a tool devised and applied by the supreme court of india to interpret various constitutional provisions. Supreme court case law after baker fails to resolve the matter. It is a guiding principle of immense utility while construing provisions relating to legislative competence. Doctrine of repugnancy deals with the conflict of laws between the state and the centre. Under the constitution of india, exclusive jurisdiction for the union and the state has been conferred regarding subject matters of. Jun 30, 2020 the subjectmatter of the seventh schedule is not the powers but the fields of legislation. Doctrine of colorable legislation is built upon the founding stones of the doctrine of separation of power. The court has laid down certain tests for discovering whether any particular act constitutes colourable legislation. A legislative transgression may be patent, manifest or direct or may be disguised, covert or indirect. Constitutional law doctrine of colorable legislation and.
Let us consider this with a real life experience, suppose you are not allowed to do a particular thing let say you are not allowed to issue a book from library as you have already issued one on your name, so you asked your friend for a favour and. May 20, 2020 the doctrine of colorable legislation means if the constitution of a state distributes the legislative powers in a specific legislative entries or if there are limitations on the legislative authority in the form or context of fundamental rights, questions may arise as to whether the legislature in a particular case has, in respect to the subject matter of the statute, exceeded or acted ultra vires in regard of the limits of the constitutional power or not. Oct 12, 2020 the supreme court accepted this contention but declared the act valid under the doctrine of colourable legislation. Basically, this doctrine implies that whatever is prohibited directly is prohibited indirectly also. As per as colourable legislation concerned under the canadian federal system as lefroy points out that the parliament of canada can not under colour of general legislation deal with what are provincial matters only and conversely provincial legislatures cannot under the mere pretence of legislating upon one of the matter enumerated in section 92 really legislate upon a matter assigned to the jurisdiction of parliament of canada in order to find the true nature and character of the law. If the legislature is competent to pass a particular law, the motives which impelled it to act. In this case is the court will look in the true nature and character of the legislation and for that its object, purpose or design to make the law on a subject is relevant and not its motive. The doctrine of stare decisis or precedents is the distinguishing characteristic of the english common law. Would you like to get the full thesis from shodh ganga along with citation details. Doctrine of colourable legislation, like any other constitutional law doctrine, is a tool devised and applied by the supreme court of india to interpret various constitutional provisions. Indian judicial doctrines principles of constitutional law.
It is the substance that is material and not the outward appearance. Apr 19, 2018 the doctrine of colourable legislation is based on the maxim that what cannot be done directly cannot also be done indirectly. Short essay on the doctrine of colourable legislation. Miscellaneous topics in india polity by sai samir badeti. Iastoppers upsc ias exam online preparation ias strategy. Understanding the doctrine of colourable legislation international. Government jobs in india private jobs india results. The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The doctrine of estoppel under indian evidence act. It is not for the courts to decide and scrutinise the policy which led to the enactment within the ambit of the legislature. Doctrine of colourable legislation article legal articles in india. Challenge to subordinate legislation all grounds on which a plenary legislation. Doctrine of colourable legislation article legal articles.
In india, article 310 of the indian constitution incorporates the common law doctrine of pleasure. Doctrine of eclipse doctrine of waiver doctrine of severability doctrine of colourable legislation presumption of constitutionality of statute. The doctrine of colourability is the idea that when a legislature wants to do something that it cannot do within the constraints of its governments constitution, it colours the law with a substitute purpose, allowing it to accomplish its original goal india. Doctrine of colourable legislation presumption of constitutionality of statute. Thus, it refers to the competency of the legislature to enact a particular law. Thus the whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. The court has historically applied the doctrine in a small but disparate number of cases, without applying clear rules for. This video explains the concept of colourable legislation in a simple language.
Legislations passed by a legislature in excess of its powers allowed by the constitution could be struck down as ultravires. In india the doctrine of colorable legislation signifies only a limitation of the law making power of the. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. Separation of power mandates that a balance of power is to be struck between the different components of the state i. This doctrine restricts the overstretching of the constituted power of the legislature in a disguised, covert or indirect manner. The other doctrines are doctrine of pith and substance and doctrine of repugnancy, doctrine of colourable legislation etc. It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. Doctrine of colourable legislation would come within this as it is essentially a question of power. Lets say you are forbidden from reaching out to the top shelf thats housed delicious sweets by your mother, being a good child you follow this rule by the word or lets say verbatim, in such a case you are expressly forbidden from eating the swe. What is meaning of doctrine of colourable legislation. The doctrine of colourable legislation lexforti legal. In india, legislative powers of parliament and the state legislatures are conferred by article 246 and distributed by list i, ii, and iii, in the seventh schedule of the indian constitution.
Apr 14, 20 therefore, if the authority fails to furnish a reasonable explanation for the delay, the subjective satisfaction may be inferred to be colourable and not genuine. In india colorable legislation theory implies only a restriction of the legislatures lawmaking power. The doctrine of colourability is the idea that when a legislature wants to do something that it cannot do within the constraints of its governments constitution, it colours the law with a substitute purpose, allowing it to accomplish its original goal. The doctrine of colourable legislation, which tests the competence of legislature against an enacted law, is likely to play a huge role. The court has historically applied the doctrine in a small but disparate number of cases, without applying clear rules for lower courts to follow. The motives of a legislature in making a law are irrelevant. The doctrine of harmonious construction seeks to harmonize the conflict between two statues whereas the doctrine of pith and substance relates to finding out the true nature of a statute, this doctrine is widely used when. According to the scheme of our constitution, an indirect separation of power exists in india, which means a balance has been made between the different components of government i. Under the colour or guise of power given for one particular purpose, the legislature cannot seek to achieve some other purpose which it is.
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