What is the doctrine of colourable legislation? How is it different from pith and substance rule? Support your answer with important cases.

Question: What is the doctrine of colourable legislation? How is it different from the pith and substance rule? Support your answer with important cases. [BJS 2018]

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Answer

The doctrine of colourable legislation is based on the principle that “what cannot be done directly cannot be done indirectly”. In other words, if the constitution does not permit the certain provision of legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. This doctrine is found on the wider doctrine of “fraud on the constitution”. A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.

The Supreme Court of India in different judicial pronouncements has laid down 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. For the purpose of determining the substance of an enactment, the court will examine two things:
   a) Effect of the legislature
   b) Object and the purpose of the act.
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.

On the other hand, the Doctrine of Pith and Substance is applied when there is a conflict between two or different subject matters of different list. There can be circumstances in which the subject matter of list 1 clashes with the subject matter of list 2. In such a conflict between legislatures, it needs to be ascertained that if the pith and substance of the enactment is the true character and nature of the legislation.

If after assessing the statutes it is found that legislation is in pith and substance, based on the matter assigned to the legislative then such an act must be held valid in its entirety. Even though the legislature may incidentally trench upon the matter beyond its competence still it is held to be valid as the statutes are in pith and substance-related to the subject of the act or law.

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