Doctrine of Colourable Legislation

It is based upon the doctrine of power separation. Separation of power mandates to strike power of balance between different state components. It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”. This doctrine of colourable legislation is applied when a Legislature does not have the right to make law upon a particular subject but indirectly makes one. 

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The Court has laid down certain tests for discovering whether any particular Act constitutes colourable legislation-

(a) The court must not look into its form or the label but the substance of the law which the legislature has given it.

(b) The court must look at the object as well as the effect of the law.

(c) If the legislature proceeds under a legislative plan the court must read all the statutes constituting that plan and determine the combined effect.

This Doctrine also traces its origin to a Latin Maxim:

 

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”

 

This maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

In the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa,“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective 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 or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers."

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 a mere presence or disguise.”

Also read - Doctrine Of Repugnancy