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Doctrine of Colourable Legislation Severability

The document discusses two legal doctrines in India: 1. The doctrine of colourable legislation states that what the legislature cannot do directly, it cannot do indirectly. A law can be struck down if it indirectly transgresses the legislature's constitutional powers in a disguised manner. 2. The doctrine of severability protects fundamental rights by allowing invalid provisions of a law to be severed, rather than striking down the entire law. For severability to apply, the valid and invalid parts must be distinct and separable without altering the overall structure and intent of the law. The document outlines several court cases that applied this doctrine.

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676 views5 pages

Doctrine of Colourable Legislation Severability

The document discusses two legal doctrines in India: 1. The doctrine of colourable legislation states that what the legislature cannot do directly, it cannot do indirectly. A law can be struck down if it indirectly transgresses the legislature's constitutional powers in a disguised manner. 2. The doctrine of severability protects fundamental rights by allowing invalid provisions of a law to be severed, rather than striking down the entire law. For severability to apply, the valid and invalid parts must be distinct and separable without altering the overall structure and intent of the law. The document outlines several court cases that applied this doctrine.

Uploaded by

sandeep
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Doctrine of colourable legislation

Doctrine of Colorable Legislation states, “Whatever legislature can’t do


directly, it can’t do indirectly”. By applying this principle the fate of the
impugned legislation is decided. This has been provided by Article 246 which
has demarcated the legislative jurisdiction of the parliament and the state
assemblies by outlining the different subjects under List I for the Union, List II
for the State and List III for both, as given in the seventh schedule to the Indian
Constitution. One of the most cogent and lucid explanations relating to this
doctrine was given 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.

Such transgression may be patent, manifest or direct, but it may also be


disguised, covert and indirect and it is to this latter class of cases that the
expression ‘Colorable Legislation’ has been applied in certain judicial
pronouncements. 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.”
This Doctrine is also called as “Fraud on the Constitution”. The failure to
comply with a Constitutional condition for the exercise of legislative power
may be overt or it may be covert. When it is overt, we say the law is obviously
bad for non- compliance with the requirements of the Constitution, that is to
say, the law is ultra vires. When, however, the non-compliance is covert, we
say that it is a ‘fraud on the Constitution’, the fraud complained of being
that the Legislature pretends to act within its power while in fact it is not so
doing. Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate
analysis, nothing but a picturesque and epigrammatic way of expressing the
idea of non-compliance with the terms of the Constitution

STATE OF BIHAR Vs. KAMESHWAR SINGH This is the only case where


a law has been declared invalid on the ground of colourable legislation. In this
case the Bihar Land Reforms Act,1950, was held void on the ground that
though apparently it purported to lay down principle for determining
compensation yet in reality it did not lay down any such principle and thus
indirectly sought to deprive the petitioner of any compensation.

2. Doctrine of severability

Doctrine of severability

It is also known as doctrine of separability. It protects our


Fundamental Rights, as it is mentioned in the clause 1) of the Article
13 of the Constitution that All laws enforce in India, before the
commencement of Constitution, in so far as they are inconsistent with
the provisions of fundamental rights shall to the extent of that
inconsistency be void. But the whole law or act would not be held
invalid, but only the provisions of the law or act which are not in
consistency with the Fundamental rights. This is what the Doctrine of
severability is. But it is only possible if the part which is inconsistent
with the law is separated from the whole law. If both the valid and
invalid part are so closely mix up with each other that it cannot be
separated then the whole law or act will be held invalid.

In A.K. Gopalan v. State of Madras

The Supreme court held that in case of repugnancy to the


Constitution, only the repugnant provision of the impugned Act will
be void and not the whole of it, and every attempt should be made to
save as much as possible of the act. If the omission of the invalid part
will not change the nature or the structure of the object of the
legislature, it is severable. It was held that except Section 14 all other
sections of the Preventive Detention Act, 1950 were valid, and since
Section 14 could be severed from the rest of the Act, the detention of
the petitioner was not illegal.

In State of Bombay v. F.N. Balsara

eight sections of the Bombay Prohibition Act were declared invalid,


the Supreme Court said that the portion which was invalid to the
extent of fundamental rights was separable from the rest of the act.
In R.M.D.C. v. Union of India

This landmark judgment completely observed Doctrine of


severability, Justice Venkatarama Aiyar observed:
1. In determining whether the valid parts of a statute are separable
from the invalid parts thereof, it is the intention of the legislature
that is the determining factor. The test to be applied is whether
the legislature would have enacted the valid part if it had known
that the rest of the statute was invalid.

2. If the valid and invalid provisions are so inextricably mixed up


that they cannot be separated from one another, then the
invalidity of a portion must result in the invalidity of the Act in
its entirety. On the other hand, if they are so distinct and
separate that after striking out what is invalid, what remains is in
itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest has become unenforceable.

3. Even when the provisions which are valid and distinct and
separate from those which are invalid, if they all form part of a
single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.

4. Likewise, when the valid and invalid parts of a statute are


independent and do not form part of a scheme but what is left
after omitting the invalid portion is so thin and truncated as to be
in substance different from what if was when it emerged out of
the legislature, then also it will be rejected in its entirety

5. The separability of the valid and invalid provisions of a statute


does not depend on whether the law is enacted in the same
section of different sections; it is not the form but the substance
of the matter that is material, and that has to be ascertained on
an examination of the act as a whole and of the setting of the
relevant provisions therein.

6. If after the invalid portion is expunged from the statute what


remains cannot be enforced without making alterations and
modifications therein, then the whole of it must be struck down
as void, as otherwise it will amount to judicial legislation.

7. In determining the legislative intent on the question of


separability, it will be legitimate to take into account the history
of legislation, its object, the title and preamble to it.

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