Colourable Exercise of Power

Colourable Exercise of Power is a constitutional and legal doctrine which refers to the misuse or disguised application of authority by a legislative or executive body, appearing lawful in form but unconstitutional in substance. In essence, it means that what cannot be done directly cannot be done indirectly. This doctrine ensures that governmental powers are exercised only within their lawful boundaries and prevents authorities from evading constitutional limitations by using deceptive or indirect means.

Background and Origin

The doctrine of Colourable Exercise of Power originates from the principle of the Rule of Law, which mandates that every organ of government must act within the scope of its constitutionally assigned powers. The term “colourable” denotes something that appears legitimate on the surface but conceals an ulterior or unconstitutional motive underneath.
The doctrine emerged prominently in Indian constitutional law through judicial interpretation, though similar ideas can be traced to common law principles in other jurisdictions. It is closely associated with the doctrine of separation of powers and the distribution of legislative competence between various levels of government.
In India, this doctrine is primarily applied in cases involving legislative competence—that is, where the legislature enacts a law that seemingly falls within its authority but, in reality, encroaches upon the powers reserved for another legislature under the Constitution.

Legal Principle and Meaning

The principle underlying the Colourable Exercise of Power can be summarised as follows:

“You cannot do indirectly what you are prohibited from doing directly.”

This means that even if an act or law appears to conform to constitutional limits in its wording or structure, the court may examine its substance and purpose to determine whether the real objective violates constitutional boundaries.
If the legislature or executive adopts a measure merely as a device to accomplish an unlawful objective, the act may be struck down for being a colourable exercise of power.

Judicial Interpretation in India

Indian courts have applied this doctrine in several landmark cases to uphold constitutional supremacy and prevent legislative overreach.

1. K.C. Gajapati Narayan Deo v. State of Orissa (1953) – This case laid the foundation for the doctrine in India. The Supreme Court held that the doctrine of colourable legislation applies when the legislature oversteps its constitutional limits under the guise or colour of exercising its lawful powers. The Court observed that the issue is not about the legislature’s motives but about the substance of the law.
2. State of Bihar v. Kameshwar Singh (1952) – The Supreme Court examined the Bihar Land Reforms Act, 1950, and held that although the Act purported to serve a public purpose, in substance, it unfairly discriminated in compensation. The legislation was struck down as a colourable exercise of power.
3. R.S. Joshi v. Ajit Mills (1977) – The Court reiterated that the doctrine is meant to prevent the legislature from enacting laws indirectly that it cannot enact directly. However, the Court clarified that the motive of the legislature is not the primary concern; rather, the effect and intent reflected in the legislation are examined.
4. K. C. Gajapati Narayan Deo Case Observation – The Supreme Court famously stated:

   “The idea conveyed by the expression ‘colourable legislation’ is that although apparently the legislature in passing a statute purported to act within its powers, yet in substance and in reality, it transgressed those powers.”

Elements of Colourable Exercise of Power

For an act to be declared a colourable exercise of power, certain conditions generally exist:

• The legislature lacks competence to enact the law directly under the Constitution.
• The form of the law disguises its true character or purpose.
• The substance of the law reveals that it indirectly attempts to achieve what is constitutionally forbidden.
• The effect of the law results in an encroachment on the powers of another authority.

Courts, therefore, go beyond the superficial wording of a law to evaluate its pith and substance, purpose, and consequences.

Distinction from Legislative Motive

It is important to distinguish the doctrine of colourable exercise from the idea of legislative motive. The courts do not inquire into the personal or political motives of legislators. Instead, they analyse whether the legislature’s constitutional competence has been exceeded in the guise of permissible action. The focus is on legislative competence, not legislative intent.
Thus, the doctrine acts as a constitutional safeguard against indirect encroachment or disguised transgression of authority, rather than as a means to question the moral or political intentions of lawmakers.

Constitutional Relevance in India

The Constitution of India divides legislative powers between the Union and the States through three lists in the Seventh Schedule—the Union List, State List, and Concurrent List. The doctrine of Colourable Exercise of Power becomes relevant when a legislature attempts to frame a law ostensibly within its list but, in substance, affects matters under another list.
For instance, if a State legislature enacts a law that, in appearance, concerns public order (a State subject) but, in effect, regulates telecommunications (a Union subject), it may be challenged as a colourable exercise of power.

Objectives of the Doctrine

The primary objectives of the doctrine include:

• Preventing Misuse of Power – Ensuring that constitutional limitations are not circumvented by indirect means.
• Maintaining Federal Balance – Protecting the distribution of legislative powers between the Union and the States.
• Safeguarding the Constitution – Ensuring that the spirit and purpose of constitutional provisions are preserved.
• Ensuring Accountability – Holding legislative and executive actions within constitutional boundaries.

Limitations of the Doctrine

• The doctrine applies only to questions of legislative competence, not to the reasonableness or fairness of a law.
• Motive or intention of the legislature is generally irrelevant unless it demonstrates a deliberate attempt to disguise an unconstitutional act.
• The doctrine does not prevent legislatures from enacting laws that have incidental overlap with another field, provided the pith and substance of the law lies within their domain.
• The determination of colourability depends heavily on judicial interpretation, which can vary with context and circumstance.