Doctrine of colourability

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.

In Canadian federalism

India

Under the constitution of India ^[1] exclusive jurisdiction for the Union and the State has been conferred regarding subject matters of legislation. This has been provided by Article 246 ^[2] 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. As a consequence the conflicts of jurisdiction arise, due to the very fact that we have separate lists for the Union and the State to legislate upon. It often happens that the strict constitutional boundaries are transgressed in legislation inviting judicial review of the said Bill/Act.

The enactment of legislation is a function of the legislative power. In order to decide whether a particular legislation is unconstitutional for offending the constitutional limitations of distribution of powers, the Court examines the enactment with some strictness. The Legislature can only make laws within its legislative competence. The legislative competence may be limited by specific List entries, or be restricted by other constitutional limitations and prohibitions. It cannot over-step the area of its legislative capability. A simple rule is followed in this regard which is to find out if the legislating body had the power to legislate directly. If it is not so, then the legislature cannot hide its incompetence by purporting to legislate indirectly. What it cannot do directly, it cannot attempt to do it indirectly. Therefore, the substance of the legislation must be articulated for the purpose of determining whether what it is enacted, it can really do.

The question of colourable legislation was fully discussed by the Supreme Court in K.C. Gajapati Narayan Deo v. Orissa, a decision which has been treated as settling the law on the subject which was further approved in the Supreme Court decision of Sonapur Tea Co. v. Deputy Commissioner.

References

1. ^ Book Titled "Land and the Constitution in India" has a chaters titled "Empire and Commonwealth Origins of the Doctrine of Colorability" page 209 and "Colorability" and Zamindari Abolition Laws" page 211
2. ^ [1]

• http://laws.lp.findlaw.com/getcase/10th/case/027040.html
• Edinger, Elizabeth: "Constitutional Law - The Doctrine of Colorability and Extraterritoriality", 63 Canadian Bar Review, (1985) 203
• talks about colorability
• also talks about colorability

A good example of this kind of doctrine can be seen through Jean-Philippe Herbert life work. In effect, as Judge Beetz has said many times: " Jp Boobie is the incaranation of the doctrine of colourability: the criterion we ask ourselves revolves around his great/horrible attributes. Would the unreasonable JP have thought of this, god forbid he were the acting legislator".