17. Consider the following statements:
1. The doctrine of colorable legislation in India is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government.
2. Doctrine of Pith and Substance 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.
Which of the above statements is/are correct?
17. Consider the following statements:
1. The doctrine of colorable legislation in India is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government.
2. Doctrine of Pith and Substance 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.
Which of the above statements is/are correct?
The correct option is C None of the above
Doctrine of Pith & Substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
- Within their respective spheres, the Union and the State legislatures are made supreme and they should not encroach on the sphere reserved for the other.
- If a law passed by one encroaches upon the field assigned to the other, the Court will apply the doctrine of pith and substance.
- If it is found that the law in substance is within the subjects assigned to that Legislature and the intention of the law is genuine, the law shall be held valid in its entirety, even though there is some overlapping.
- The justification of this is that since there cannot be clear-cut division of powers between the Centre and the States, a strict verbal interpretation of any provision would result in invalidation of many laws on the ground of overlapping.
- The Supreme Court propounded this doctrine in the case of State of Rajasthan Vs G. Chawla in 1959.
- In the opinion of the Court, such encroachment is only incidental and hence the extent of invasion is immaterial.
Doctrine of colourable legislation
- This doctrine is explicitly applicable in a Federal Constitution.
- In a federal Constitution, the transgression of its limits of power by a Legislature may be overt and direct or disguised, indirect and covert.
- If the legislation is disguised, indirect and covert, it is called ‘colourable’ legislation.
- In this case, although the subject on which the Legislature makes laws falls within its competence in outward appearance, its real intention is to transgress the power of other Legislature covertly or in a disguised way.
- Applying the doctrine of colourable legislation, the Court can invalidate the entire law.
- The motive and spirit of the doctrine is that what the Legislature cannot do directly, it cannot do the same indirectly also.
- This doctrine was upheld by the Supreme Court in the case of Moopil Nair Vs State of Kerala.
None of the above
Doctrine of Pith & Substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
- Within their respective spheres, the Union and the State legislatures are made supreme and they should not encroach on the sphere reserved for the other.
- If a law passed by one encroaches upon the field assigned to the other, the Court will apply the doctrine of pith and substance.
- If it is found that the law in substance is within the subjects assigned to that Legislature and the intention of the law is genuine, the law shall be held valid in its entirety, even though there is some overlapping.
- The justification of this is that since there cannot be clear-cut division of powers between the Centre and the States, a strict verbal interpretation of any provision would result in invalidation of many laws on the ground of overlapping.
- The Supreme Court propounded this doctrine in the case of State of Rajasthan Vs G. Chawla in 1959.
- In the opinion of the Court, such encroachment is only incidental and hence the extent of invasion is immaterial.
Doctrine of colourable legislation
- This doctrine is explicitly applicable in a Federal Constitution.
- In a federal Constitution, the transgression of its limits of power by a Legislature may be overt and direct or disguised, indirect and covert.
- If the legislation is disguised, indirect and covert, it is called ‘colourable’ legislation.
- In this case, although the subject on which the Legislature makes laws falls within its competence in outward appearance, its real intention is to transgress the power of other Legislature covertly or in a disguised way.
- Applying the doctrine of colourable legislation, the Court can invalidate the entire law.
- The motive and spirit of the doctrine is that what the Legislature cannot do directly, it cannot do the same indirectly also.
- This doctrine was upheld by the Supreme Court in the case of Moopil Nair Vs State of Kerala.
