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

 

What is the Bible belt in the USA

The Bible Belt is a term used to describe an area in the south eastern and south-central United States where there is a high concentration of conservative Protestant Christians and a strong influence of evangelical Christianity. It is known for its religious conservatism and adherence to traditional Christian values.

The states commonly associated with the Bible Belt include Mississippi, Alabama, Georgia, Tennessee, Arkansas, Louisiana, Kentucky, Oklahoma, South Carolina, North Carolina, and parts of Texas, Florida, and Missouri. The Bible Belt is characterized by a high rate of church attendance, religious activities, and a general cultural emphasis on traditional Christian beliefs and values. It has had a significant impact on the social, political, and moral landscape of the region, including influencing legislation and public opinion on issues such as abortion

Are the Bible belt states historically more Democratic or Republican?

The Bible Belt states have historically leaned towards the Republican Party in terms of their voting patterns. The shift towards Republican dominance in the region began in the mid-20th century and has persisted in recent decades.

There are several factors that have contributed to the Republican lean in the Bible Belt. One significant factor is the alignment of conservative social and cultural values with the Republican Party platform, particularly on issues such as abortion, same-sex marriage, and religious liberty. The Bible Belt’s emphasis on traditional Christian beliefs and social conservatism has resonated with the Republican Party’s conservative base.

Additionally, the Bible Belt states have often been characterized by rural and more conservative-leaning populations, which have traditionally aligned with the Republican Party. The influence of evangelical churches and Christian organizations in the region has also played a role in shaping the political landscape.

What is the extent of the conservative nature of these States in terms of laws?

The alliance of wealthy religious fundamentalists, conservative philanthropic organizations, and corporate magnates has effectively established political partnerships that have led to the passage of numerous federal and state laws restricting access to abortion. These laws have been enacted in several conservative states, including Arkansas, Idaho, Kentucky, Mississippi, Missouri, Oklahoma, North Dakota, South Dakota, South Carolina, Utah, West Virginia, and Wyoming. The restrictions imposed by these laws encompass limitations on the number of abortions performed by physicians, requirements for abortion facilities to have operating rooms for different abortion methods, mandatory biased counseling and delays, allowances for healthcare providers and facilities to refuse abortion services, restrictions on Medicaid coverage for abortion, parental consent requirements, and limitations on who can perform abortions. Additionally, there have been attempts to introduce fetal personhood laws in states like North Dakota, Montana, Maryland, Alabama, and South Carolina, which designate legal personhood to the fetus while neglecting the mother’s mental and physical well-being.

A few impacts of the Supreme Court Ruling:-

• The Supreme Court Ruling:

The Supreme Court ruling pertains to a Mississippi law that bans most abortions after 15 weeks of pregnancy. The Court’s decision allows the law to stand, marking a significant shift in the legal landscape of abortion rights. This ruling is seen as a potential opportunity for states to introduce more restrictive abortion laws.

• Impact on Roe v. Wade:

The ruling has raised concerns among abortion rights advocates as it challenges the framework established by the landmark 1973 Supreme Court decision in Roe v. Wade. While the Court did not overturn Roe v. Wade directly, the decision indicates a shift in the Court’s composition and possibly a more conservative approach to abortion-related cases.

• State Reactions:

The ruling has prompted various responses from states across the country. Conservative-leaning states have expressed intentions to enact or reinforce their own restrictive abortion laws, hoping to test the limits of the Court’s new stance. On the other hand, liberal-leaning states are vowing to protect and expand abortion rights within their jurisdictions.

• Potential Legal Battles:

Legal experts anticipate a wave of legal challenges in response to the ruling. Abortion rights organizations and advocates are expected to file lawsuits against restrictive laws, seeking to either overturn or block them based on constitutional grounds. These legal battles may ultimately determine the future of abortion rights in the United States.

• Public Opinion and Political Impact:

The ruling has also reignited discussions surrounding public opinion on abortion. Recent polls have shown that a majority of Americans support the constitutional right to abortion, though opinions vary across party lines. This ruling is expected to energize both sides of the abortion debate, potentially influencing public sentiment and political actions.

 

Why are minority communities and queer individuals most affects by these anti-abortion laws?

Minority communities and queer individuals are often most affected by anti-abortion laws in the United States due to a combination of systemic inequalities and intersecting oppressions. Here are a few key reasons:

1. Limited Access to Healthcare: Minority communities and queer individuals are more likely to experience barriers to accessing comprehensive healthcare, including reproductive health services. They may face discrimination, language barriers, lack of culturally competent care, and limited healthcare resources in their communities, making it harder to access abortion services.
2. Socio-economic Disadvantages: Economic disparities disproportionately impact minority communities and queer individuals, who often have lower incomes and fewer resources. Anti-abortion laws that restrict public funding for abortion or increase the cost of the procedure create significant financial obstacles, further limiting access to safe and legal abortion services.
3. Racial and Gender-based Stereotypes: Minority communities, particularly Black and Latina women, have historically been subject to harmful stereotypes surrounding reproductive choices. These stereotypes perpetuate biases that contribute to the stigmatization and marginalization of these communities, leading to limited access to reproductive healthcare, including abortion.
4. LGBTQ+ Discrimination: Queer individuals, especially transgender and gender non-conforming individuals, may face unique challenges when seeking reproductive healthcare, including abortion. Discrimination, lack of inclusive healthcare providers, and legal barriers can further restrict access to abortion services for queer individuals.
5. Intersectional Experiences: Many individuals from minority communities and queer individuals experience intersecting identities, such as being a person of color and LGBTQ+. These intersections compound the barriers they face in accessing reproductive healthcare and make them more vulnerable to the impacts of anti-abortion laws.

Addressing the disproportionate impact of anti-abortion laws on minority communities and queer individuals requires an intersectional approach that recognizes the unique challenges they face and works to dismantle systemic inequalities. It involves ensuring equitable access to comprehensive healthcare, combating discrimination, and centering the reproductive justice framework, which emphasizes the right to have children, not have children, and parent in safe and supportive environments.

Conclusion

The landscape of abortion laws in the United States continues to be a subject of intense debate and legal battles. Anti-abortion laws have significant implications for reproductive rights, affecting women’s autonomy, bodily integrity, and access to safe healthcare services. These laws disproportionately impact marginalized communities, including low-income individuals, people of color, and queer individuals, who face systemic barriers and intersecting oppressions. The restrictive nature of these laws exacerbates existing healthcare disparities and deepens socio-economic inequalities. Limited access to affordable healthcare, geographic barriers, lack of insurance coverage, and the closure of abortion clinics further hinder individuals from exercising their reproductive rights. This not only infringes upon their autonomy but also perpetuates a cycle of inequality, disproportionately affecting those already marginalized in society.

Efforts to address these disparities and protect reproductive rights must center on an intersectional approach that recognizes the diverse experiences and vulnerabilities of those impacted by anti-abortion laws. Advocacy for equitable access to comprehensive healthcare, including reproductive health services, is crucial. This involves dismantling systemic barriers, combatting discrimination, and promoting policies that prioritize bodily autonomy, inclusivity, and reproductive justice.

As the fight for reproductive rights continues, it is vital to engage in open and informed discussions, challenge stigmatization, and advocate for policies that uphold the principles of bodily autonomy and ensure equitable access to safe and legal abortion services for all individuals. Only through concerted efforts to protect reproductive rights and address the underlying disparities can we strive towards a society that respects and supports individuals’ agency over their own bodies and reproductive choices.

REFERENCES:-

Guttmacher Institute (www.guttmacher.org) – A leading research organization providing data and analysis on reproductive health and abortion laws in the United States.

Center for Reproductive Rights (www.reproductiverights.org) – An organization dedicated to advancing reproductive rights and defending legal access to abortion.

National Abortion Federation (www.prochoice.org) – An organization that provides resources and information on abortion laws, regulations, and access.

American Civil Liberties Union (ACLU) (www.aclu.org) – A civil rights organization that advocates for reproductive freedom and provides resources on abortion laws and litigation.

 

Article by Shreeya S Shekar