The question whether a law is a colourable legislation and as such void, does not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether, though the legislature has purported to act within the limits of its powers, it has in substance and reality, transgressed those powers, the transgression being veiled or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly.
“The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law.
If the legislature is competent to pass a particular law the motives which impelled it to act, are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.
thebluediamondgallery.com
ADVERTISEMENTS:
Whether a statute is constitutional or not is thus always a question of power. If the constitution of a State distributes the legislative power amount different bodies which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental right, questions do arise whether the legislative in a particular case has or has not, in respect to the subject matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers.
Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to the latter class of cases that the expression ‘colourable legislation’ has been applied. The idea conveyed by this expression is that although apparently a legislature in passing a statute purported to act within the limits of its power, yet in the substance and reality, it transgressed these powers.
The legal position, therefore, is that the legislature can only make law within its legislative competency. Its legislatives field may be circumscribed by specific legislative entries or limited by fundamental rights by the constitution. The legislature cannot overstep the field of its competency, directly or indirectly.
ADVERTISEMENTS:
The court will scrutinize the law to ascertain whether the legislature by device purports to make a law which though in form appears to be within its sphere,, in effect and substance reaches beyond it. If, in fact, it has power to make the law, its motives in making the law are irrelevant.
The doctrine of colourable legislation is relevant only in connection with the question of legislative competency.