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Federalism, which is the foundation of the Indian Constitution, can be referred to as the Indian government structure itself. India has a federal system of administration and has been a unified country for almost seven decades, with authority shared between the Centre and the States due to the federal governance structure. The separation of powers between the center and the states is an essential aspect of federalism. One level of government cannot unilaterally amend the core provisions of the Constitution. The goal of the federal system is to protect and promote unity while still accommodating regional variety.

Even before independence, there were agreements on power sharing. The geographical and linguistic variety was recognised by leaders. While debating the legislative competence of parliament, the Constituent Assembly of India gave the judiciary the authority to halt unconstitutional legislation.

Alladi Krishnaswami Ayyar said:

“It is an accepted principle of Constitutional Law that when a Legislature, be it the Parliament at the Centre or a Provincial Legislature, is invested with a power to pass a law in regard to a particular subject matter under the provisions of the Constitution, it is not for the Court to sit in judgment over the Act of the Legislature…Of course, if the legislature is a colourable device, a contrivance to outstep the limits of the legislative power or to use the language of private law, is a fraudulent exercise of the power, the Court may pronounce the legislation to be invalid or ultra-vires”.

Even Jawaharlal Nehru, while upholding legislative supremacy, restricted its absolute power and said:

“Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where in fact there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution.”

As a result, the Constituent Assembly chose to construct a government based on the principles of unity and collaboration between the Centre and the states, with constitutional stature and a clearly defined field of action. This indicates that each Legislative Body has a well-defined authority and cannot go beyond the confines of legislation to establish laws. The Doctrine of Colorable Legislation comes into play in such cases.

Article 246 of the Indian Constitution deals with subject matter legislation, which refers to who has the authority to create laws in relation to a particular subject matter. We know that power has been divided into three lists. The 7th schedule categorises the functions of the Centre and States into three lists: Union list (List I), State list (List II), and Concurrent list (List III), as indicated in Article 246 of the Constitution.

The Union list includes sectors of national importance like as defence, international affairs, currency, atomic energy, and so on. It contains a total of 97 issues on which the Parliament has sole authority to pass legislation. Similarly, issues of local relevance, such as trade, agriculture, and law enforcement, are included in the State list. There are 61 issues on which the State has sole legislative authority. The concurrent list comprises 52 subjects such as education, adultery, adoption, and so on that interest both the Union and the State and for which both can create legislation. Another category of authority is residuary powers, which encompass any additional subjects not covered by any of the lists, such as cyber laws. Both the states and the union are required to function within their own legislative jurisdictions.

If the legislature produces legislation in colour or disguise on a subject without having the requisite competency to make laws on that subject, the Supreme Court has the authority to annul the entire statute. When the ability of certain legislation to pass a particular law is called into doubt, colorable legislation arises. It questions the correctness of adopted legislation in relation to the legislative body that approved the law and examines whether the legislative body has the authority to make laws on that subject or not.

The doctrine of colourable legislation tests the competence of legislature against an enacted law. This doctrine is based upon the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”, which means “you cannot do indirectly what you cannot do directly”, and is based on the doctrine of separation of powers.

Ostensibly the subject matter of the law might coincide with the authority of the legislature, but the purpose or effect relates to the subject matter, which falls outside the authority of the legislature. The notion limits the overstretching of the legislature’s constitutional power in a veiled, concealed, or indirect manner. This idea is sometimes known as “fraud on the Constitution.”

Through this article, I aim to trace the judicial aspect as to how this doctrine has been applied by the Supreme Court, over the years leading up to the case of the Abrogation of Article 370, which is yet to be decided by the five-judge bench.

 KC Gajapati v. Narayan Deo

Brief Facts of the Case:

• The Orissa Estates Abolition Act of 1952 was enacted on 23.01.1952 in the State.
• The fundamental goal of the concerned Act was to abolish all zamindaris, other proprietary estates, and interests in Orissa, and after eliminating such intermediaries, to bring landowners into touch with the State Government.
• Dissatisfied with the terms of the adopted legislation, the estate proprietors filed six challenges before the High Court of Orissa, using Article 226 of the Constitution.
• The petition was filed to challenge the constitutional validity of the Orissa Estates Abolition Act of 1952 as a whole. However, the matter was dismissed by the learned bench of the Orissa High Court.
• Aggrieved by the dismissal, the petitioners have filed another appeal u/a 132 and 133 in the Hon’ble Supreme Court assailing the validity of the said Act being violative of the Constitution of India.

Judgment:

In this case, the Supreme Court ruled that the legislature was competent to pass legislation on the matter and that the legislation was legal. The court held that it would be colorable legislation only if it could be demonstrated that the true goal is inaccessible to it due to a constitutional limitation or that it falls within the exclusive jurisdiction of another legislative. This Act is under the purview of the state legislature because agriculture is covered by the State List, and compensation reduction is simply one aspect of the Act. As a result, it is not colorable law and is not invalid.

State of Bihar v. Kameshwar Singh

Brief Facts of the Case:

• The Bihar Land Reforms Act, 1950 was enacted with the aim of removing the landlord’s custom from the state. The State gave half of the arrears of rent due as compensation to the landlord. 
• The compensation for property acquired comes under Concurrent List’s Entry 42. So, here it was to be determined whether the Act was for a public purpose or not. 

Judgment:

The Supreme Court ruled that, rather than calculating compensation, the Act indirectly removes the petitioner from his property without compensation. In actuality, the Act attempted to establish a principle for deciding compensation while implicitly depriving the petitioner of the right to seek compensation. As a result, the Act was declared unconstitutional.

The Case of Abrogation of Article 370

The State of Jammu and Kashmir (J&K) was granted unique constitutional status under Article 370 of the Indian Constitution. In comparison to other states, the clause significantly curtailed Parliament’s ability to act for the State.

The Instrument of Accession, signed by the erstwhile monarch of J&K, Maharaja Hari Singh, in 1947, resulted in Article 370. Article 370 was supposed to be a transitional measure to allow J&K to shift from an autonomous princely state to a democratic state under Indian control.

Beginning on August 5, 2019, the Union administration weakened Article 370, thereby eliminating J&K’s special status. President Ram Nath Kovind first issued Presidential Order CO 272. Only the suggestion of the J&K Constituent Assembly might change Article 370. The presidential order (CO 272) granted the Union the authority to change Article 370 without the approval of the Constituent Assembly. It accomplished this by modifying another section of the Constitution (Article 367), which describes how the Constitution should be construed. The revision changed the reference to the ‘Constituent Assembly’ in Article 370(3) to a reference to the ‘Legislative Assembly’.

Because J&K was under President’s Rule at the time, the Union Parliament inherited the powers of the J&K Legislative Assembly. As a result, a few hours after CO 272 was published, the Rajya Sabha suggested that Article 370 be repealed by a Statutory Resolution under Article 370(3).

On August 6, President Kovind issued Proclamation CO 273, bringing the Rajya Sabha’s proposal into force. All articles of Article 370 were repealed, with the exception of clause 1, which was changed to state that the Indian Constitution applies to the state of J&K. This effectively ended J&K’s privileged status.

Finally, on August 9, the Union Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, which divided the state of J&K into two Union Territories. J&K and Ladakh are the two new Union Territories, with only the former retaining a legislative assembly.

The different petitions have questioned the Centre’s “unilateral” decision to impose a curfew and undermine India’s unique federal system by splitting Jammu and Kashmir “without the consent of the people.”

They have questioned the Centre’s unexpected decision to “unilaterally unravel the unique federal scheme while undermining crucial elements of due process and the rule of law.”

According to the petitions, what transpired in Jammu and Kashmir “cuts to the heart of Indian federalism.” They contend that the Presidential Order of August 5 substitutes the approval of the Governor of the State government in order to modify the basic nature of a federal entity.

The petitions ask the Court to rule that CO 272, CO 273, and the J&K Reorganisation Act are “unconstitutional, void, and inoperative.” At least four more petitions have been filed as of August 16. The petitioners relied on the ‘Doctrine of Colourable Legislation.’ Article 370(3) forbids the President from modifying the Constitution without the consent of the Constituent Assembly. CO 272 and 273 effectively change Article 370 without the Assembly’s approval.

The petitioners further argue that under a federal democracy, the right to autonomous self-government, especially with regard to constitutional and political status, is a basic right under Part III of the Constitution and cannot be revoked without following the legal procedure.

The 5-judge panel considering the Article 370 petitions denied the request to send these petitions to a bigger bench on March 2, 2020. The Bench ruled in a 41-page decision that there was no such oversight or conflict. It provided two main grounds for its conclusion. For one thing, it noted that the circumstances under which these instances were determined differed. Two, the issues at stake were radically different. Given this, the Bench concluded that there was no reason for a dispute. The Bench clearly stated in its order that it was merely resolving the preliminary question of reference.

Senior Advocates Dwivedi and Parikh’s key reason for the disagreement was that Sampat Prakash missed several critical points made in Prem Nath Kaul. According to them, Prem Nath Kaul stated that the Parliamentary and Presidential powers granted under Article 370 were subject to the ultimate decision of the Jammu and Kashmir Constituent Assembly. These powers ceased to exist after the Assembly was dissolved.

The Supreme Court has been hearing the Article 370 dispute for almost two years. The case had not been heard since March 2020, when a five-judge Bench refused to refer the petitions to a bigger Bench. The matter has been cited multiple times since then for an early hearing.

Conclusion

Colourable legislation denotes an infringement on legislative authority. The theory of colourable law firmly bans doing things indirectly when doing so directly is prohibited. It determines whether or whether the legislature adopted a statute within its approved jurisdiction. So, if there is a constraint on making laws, the legislature must adhere to it, or it will be considered excess vires of legislative power. If any law is enacted under whatever pretence, the heinous exercise will be forced on legislative authority.

In the case of Abrogation of Article 370, there has been no progress as of yet in the Courts. The five-judge bench has an immensely important task in deciding the case as it would eventually set a precedent for cases in the future. Apart from that, the Court’s decision will have weight on the implications that would follow, on the political climate of J&K.

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ARTICLE WRITTEN  BY DIVYA SHREE GN