Doctrine of Colourable Legislation in Indian and Canadian Law

Federalism is one of the basic feature of Indian constitution. By virtue of this power the constitution envisages a demarcation of governmental functions and powers between various constituent units of the country. Generally in a federation there are two levels of govt. the existence or authority of each level of the Government has been guaranteed by the constitution. Indian system is very much influenced to the colonial rulling system of the English for many reasons. One of the influence of this must be the policy which created the three pillars of the democracy i.e. executive, legislature and the judiciary. In Indian constitutional pattern a direct separation of power prevails by which a balance has been maintained between the different organs of the govt. among these the law making power primarily vests on the legislature.

The doctrine of colourable legislation refers to the question of competency of the legislature while enacting a provision of law. My project has two different parts, the part one of my work deal with the doctrine of colourable legislation and part two deals with legislative accountability. It is worthy to be mention that my whole research work is doctrinal in nature.

Legislature of a federal state is accountable to its people and the legislation has different power which is vested upon it by the constitution. So the question is what would be the extent and context of legislative accountability with reference to the power conferred upon it in the light of doctrine of colourable legislation in Indian scenario?

To get an satisfactory answer of this above question first we have to deal with the doctrine of colourable legislation. If a legislature is prohibited from doing something, it may not permitted to do this under the guide or pretence of doing something while acting within its lawful jurisdiction and this prohibition is an implied result of the maxim “what cannot be done directly, cannot be done indirectly” [1] and This doctrine is based on the maxim ‘what cannot be done directly, cannot also be done indirectly [2] It is applicable when the legislature intends to do something indirectly which cannot be done directly. . Later on I deal with the legislative accountability, which means excessive secrecy or open abuse of the public trust vested upon legislative assembly is not tolerable. They are bound to do justice towards the public aspirations which led them to their seats. These two parts are discussed in a broad manner respectively with the help of constitutional provisions and judicial decisions.

COLOURABLE LEGISLATION IN INDIA :-

In India ‘the doctrine of colorable legislation’ signifies only a limitation of the law making power of the legislature. It comes into picture while the legislature purporting to act within its power but in reality it has transgressed those powers. [3] So the doctrine becomes applicable whenever a legislation seeks to do in an indirect manner what it cannot do directly. If the impugned legislation falls within the competence of legislature, the question of doing something indirectly which cannot be done directly doesnot arise.

In India legislative powers of Parliament and State Legislatures are conferred by Art. 246 and distributed by Lists I, II and III in the seventh schedule of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters in List II. [4] Parliament and State Legislatures have both powers to make laws with respect matters in List III which is also known as concurrent list. Residuary power of legislation is vested in Parliament by virtue of Art. 248 and entry 97 in list I. the power of State Legislatures to make laws is subject to the power of Parliament to make laws with respect to matters in List I and III. While examining the legislative competence of Parliament to make a law all that is required to be seen is whether the subject matter falls in List II which Parliament cannot enter for in view of the residuary power vesting in Parliament other matters are not outside the legislative competence of Parliament. [5] Legislative competency is an issue that relates to how legislative power must be shared between the center and states. It focuses only on the relation between the two. [6]

The question whether the Legislature has kept itself within the jurisdic­tion assigned to it or has encroached upon a forbidden field is determined by finding out the true nature and character or pith and substance of the legislation [7] . The main point is that the legislature having restrictive power can not step over the field of competency. It is termed as the “fraud on the constitution”

The Supreme Court in the case of K.C gajapti vs state of Orissa while explaining the doctrine held that “if the constitution of a state distributes the legislative 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 in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. Such transgression may be patent , manifest and direct, but may also be distinguished, covered and indirect and it is the latter class of cases that the expression ‘colourable legislation’ has been applied in certain judicial pronouncements.” [8]

The Supreme court of India in different judicial pronouncements has laid down the certain tests in order to determine the true nature of the legislation impeached as colourable :-

1. The court must look to the substance of the impugned law, as distinguished from its form or the label which the legislature has given it. [9]

For the purpose of determining the substance of an enactment, the court will examine two things :- a) effect of the legislature and the b) object and the purpose of the act. [10]

2. The doctrine of colourable legislation has nothing to do with the motive of the legislation, it is in the essence a question of vires or power of the legislature to enact the law in question. [11]

The doctrine does not involve any question of bonafides or malafides intention on the part of the legislature. If the legislature is competent enough to enact a particular law, then whatever motive which impelled it to act are irrelevant [12] . On the other hand, it was observed by the Apex court that “ the motive of the legislature in passing a statute is beyond the scrutiny of the courts” [13] so the court has no power to scrutinize the policy which led to an enactment of a law falling within the ambit of the legislature concerned. [14]

There is hardly any instance where a law has been declared by the court as invalid on the ground of competency of the legislature. The only instance is in the case where a state law dealing with the abolition of landlord system, provided for payment of compensation on the basis of income accruing to the landlord by way of rent. Arrears of rent due to the landlord prior to the date of acquisition were to vest in the state and half of these arrears were to be given to the landlord as compensation. The provision was held to be a piece of colourable legislation and hence void on the basis of the following grounds:-

That it was not within the competence of bihar state legislature to enact the impugned act.

That the acquisitions of the estates not being for public purpose, the act was unconstitutional

That the legislative power in various sections of the act has been abdicted in favour of the executive and such abdication of power was unconstitutional.

That the act was a fraud on the constitution and that certain parts of the act were unenforceable on account of vagueness and indefiniteness [15] .

There is always a presumption that the legislature that the legislature doesnot exceed its jurisdiction( ut res magis, valet quam parret) and the burden of establishing that an act is not within the competence of the legislature or that it has transgressed other constitutional mandates as is always on the person who challenges its vires.

So the ultimate analysis is that colorable legislation indicates that while making the law the legislature transgressed the limits of its power. But the question may be raised that whether or not parliament can do something indirectly, which it can not do directly, may depend upon why it cannot do directly. There are so many examples in law as well as life where something can be done indirectly, although not directly. So the true principle of colourable legislation is “ it is not permissible to do indirectly, what is prohibited directly.” [16]

LEGISLATIVE ACCOUNTABILITY IN INDIA

In India legislature moulds the laws whenever they transgressed their limits. Actually in colloquial language we can safely say, the Indian legislature make it a habit to do rewind, fast forward, pause; everything they wish whenever they found any inconvenience. They just bring the majority in the house and pass laws whatever they need. They never give due regard to the public aspirations which actually is the source of their power. For that reason we need legislative accountability. To understand legislative accountability first we have to know what is accountability? Generally, it indicates the process of holding persons or institutions responsible for the performance as objectively as possible. Accountability is the mechanism by which the concern authority is explicable for account of his conduct. The accountability is better if extracted by the authority from himself or rather say by his inner consciousness and not by legal means [17] . It requires responsibility. Responsibility refers the authority to act, the power to control and the freedom to decide.

Over the past half century India has been a complex experiment in instituionalising democratic accountability through parliamentary institution. Parliament is the agency through which the govt is accountable [18] . In Indian constitution there is no direct contemplation of legislative accountability. But in India where a parliamentary democracy prevail, the legislature has a vital role to make administration accountable. The members of the parliament and legislative assemblies in different states are elected by the people of India so the parliament is accountable to the people. The indication of legislative accountability can only be traced through the provision of Comptroller and Auditor General of India as enumerated in article 148 and 149 of the Indian constitution.

The framers of the Indian constitution being inspired by the then freedom movement and emotions with it would have a opinion that the ministers would always think for the people so to make legislature accountable to some extent the above mentioned provisions are made. Under article 148 the comptroller and auditor general of India is the most important officer of the Govt. of india who by exercising his power and discharging duties make the legislature accountable to some extent. [19] Under the article 149 the duties and powers of the comptroller and general of India is to enhance accountability of the executive to the parliament and the state legislatures, by carrying out audits in public sector and providing accounting services in the states in accordance with the constitution of India and laws as well as best international practices. [20] To maintain the accountability being a high independent statutory authority the comptroller and auditor general has a double role to perform. Firstly, to function as an agency on behalf of the legislature to ensure that the executive complies with the various laws passed by the legislature in letter and spirit and secondly on behalf of the executive to ensure compliance by subordinate authorities with the rules and orders issued by it. [21]

The comptroller and auditor general of India generally empowered to perform certain duties among which he has a duty to take account of accounts of the union and of the states. On the basis of which he prepares a report regarding the expenditures and money spent by the union and the state. Under article 149, it is the responsibility of the CAG to audit all expenditures and receipts of the Govt.of India, the state Govt. and Union territories. It has played a vital role to maintain the balance in the govt. finances. The system mechanism should be user friendly so that the public can acquainted with the financial management of the Govt.

The primary duty of the legislature is to make laws. The primary accountability is accountability for law made means what law should be made by the Legislature? As Article 246 of the Constitution speak about the Distribution of Legislative powers between Centre and State, and power to make laws. Thus, it is important for the legislature to take account of the fact that what laws should be framed and how it should legislate. Whether on the areas identified in the Constitution under Schedule VII, which means Legislature can make legislations on only 97+66+47 = 210 areas/fields or according to the need of the people, need of the country. The answer to this question is simple that Legislature is accountable to frame legislations according to the need of the hour and entries identified under Schedule VII. So it is necessary for the legislature to take account of the fact that what laws should be framed and how it should be legislate. But unfortunately, there is no specific provision in this regard.

RELATION BETWEEN COLOURABLE LEGISLATION AND LEGISLATIVE ACCOUNTABILITY :-

It is very clear that the legislature can only make laws within its legislative competence. If a statute is found to be invalid on the ground of legislative competence it does not permanently inhibit the legislature from reenacting the same if the power to do so is properly traced and established. In such a situation , it cannot be said that the subsequent legislation is merely a colourable legislation or a camouflage or to reenact the invalidate previous legislation. [22]

So the doctrine does not signify the colour of the legislation but it signifies whether the legislation while enacting a provision has act according to its authorized power or usurping its power to make a law. The legislature is morally as well as legally accountable to the common people. The doctrine has no application where the power of the legislature are not fettered by any constitutional limitations. So, any law made by disguise where there is a prohibitions for making that law it will be deemed as colourable exercise of legislative power. In this manner the doctrine of colourable legislation is related to legislative accountability.

COMPARATIVE STUDY:- CANADA:-

Among various federal constitutions all over the world I have select Canadian federal structure where the distribution of legislative power is quite similar like Indian constitution and in the comparative study my intention is to find out the extent of accountability of Canadian legislature in the light of colourable legislation.

THE Canadian pattern of distribution of legislative power has generally been followed in Indian constitution. In the first place like section 92 of the British north America act 1867 [23] , the Indian constitution enumerates the subjects with respect to which the legislature of the states has exclusive power to make laws. Secondly it has followed the Canadian precedent and enumerates the matters with respect to which the union parliament has exclusive power to make laws..

The constitution act of Canada has make a division of its legislative department between the dominion parliament and the legislatures of the provinces by sections 91 and 92 of the British North America act 1867. This is the essence of Canadian federalism. The provincial legislature has exclusive jurisdiction to legislate on the 16 subjects enumerated in section 92 where as the dominion parliament has exclusive jurisdiction over 30 subjects as mentioned in section 91 [24] .

COLOURABLE LEGISLATION IN CANADA:-

The rule of colourable legislations has obtained under the common law systems. The doctrine of colourabilty under Canadian federalism 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. The Canadian Supreme court in some judicial decisions declared an act colourably constitutional in this sense. [25]

As per as colourable legislation concerned under the Canadian federal system as lefroy points out that the parliament of Canada can not under colour of general legislation deal with what are provincial matters only and conversely provincial legislatures cannot under the mere pretence of legislating upon one of the matter enumerated in section 92 really legislate upon a matter assigned to the jurisdiction of parliament of Canada [26] In order to find the true nature and character of the law we need to look beyond this coloured purpose to the real purpose. “Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that legislature really doing.” [27] That implies Where the legislation has absolute jurisdiction to legislate any matter then it has no purpose to look into its motive of legislating but whenever it has a limited jurisdiction the there was a need to find out whether that matter is within that limited or qualified jurisdiction of the legislature. But in that circumstances the real substance of that legislation should be taken into account.The legislation cannot violate the constitutional prohibitions by employing an indirect method. In cases like these, the enqiry must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authority.

LEGISLATIVE ACCOUNTABILITY IN CANADA:-

In Canada, the legislative auditors through out Canada have emerged as respected profession by providing assistance to preserve legislative auditors provide :-

Assurance to legislators about the fairness of accountability information particularly finanacial statements presented by govt. and they issue advice on how to improve public administration.

Assurance to legislators by reporting directly on management practices and program performances and they issue advice on how to improve those practices. [28]

The legislative auditors has gained the confidence of the legislators as well as the general public and their credibility is unquestioned in the eye of public which makes them a very significant part in the democratic process. The legislative auditors provided authority through comprehensive legislative mandates that cover all the functions of the govt.

It is the duty of the auditors to follow public money to where it is ultimately spent. Audit reporting is the practical expression of an auditor’s work and such report should be available to the respective legislatures.

In Canadian constitution unlike India there is no direct contemplation of legislative accountability. The Canadian legislature has passed an enactment named THE FINANCIAL ADMINISTRATION AND CONSEQUENTIAL AMENDMENTS ACT 2003 [29] which has an objective to take account of the expenses incurred by the legislature so that the legislative accountability has been available to the citizens. It was the intention of the constitutional framers to make the legislature accountable legally as well as morally to the citizens. The colourable exercise of legislative power has also to be take account to fix up the legislative accountability.

CONCLUSION :-

In this above discussion I have make an effort to describe colourable legislation and legislative accountability separately in Indian constitution as well as comparatively in Canadian constitution and it has been resulted that the legislative accountability is a mechanism which lies in the heart of the people and the legislature is accountable to the people. The colorable legislation has raised a question regarding the competency of the legislature to enact a particular law. But in a country like India is there any need for this colourable legislation and is the legislature legally bound to be accountable for this? In Indian constitution it was never intended by the framers for this but whereas now a days legislature is running out of its duties and make some unnecessary corrupt practice. So the legislative system is needed to be modified. India should carry an efficient legislative system which is free from corruption. Side by side prior amendments should be made to make provision for legislative accountability and to increase the power of the State Auditor General. Finally, it is observed that The doctrine of colourable legislation may be a trend to establish legislative accountability. In federal countries like Canada there is lack of provision with regard to legislative accountability in the constitution but thereafter separate enactments are made when there is crisis of legislative accountability. So, colourable legislation is needed to fix the legislative accountability with reference to some modifications in legislative system..