Authored By: Abhay Gupta
Gitarattan International Business School, Guru Gobind Singh Indraprastha University
I. Introduction
Between 1967 and 1981, the Governor of Bihar promulgated and re-promulgated two hundred and fifty-six ordinances, some remaining in force for as long as fourteen years without ever reaching the State Legislature.1 A seven-judge Constitution Bench of the Supreme Court held in 2017 that this practice was a fraud on the Constitution and a subversion of the democratic legislative process. The case poses, starkly, a question that has occupied Indian constitutional law since the 1950s: when does a formally competent exercise of law-making power become, in substance, an impermissible attempt to achieve what the Constitution’s distribution of authority was designed to prevent?
That question is the province of the doctrine of colourable legislation, which flows from Article 246 of the Constitution, read with the Seventh Schedule, distributing legislative subjects between Parliament and the State legislatures.2 A legislature, or the Executive acting in a legislative capacity through an ordinance, cannot acquire power it lacks by dressing its measure in the outward form of a permitted one. Indian courts inherited this principle from Canadian and Australian federal jurisprudence and have applied it for over seven decades, culminating most significantly in Krishna Kumar Singh in 2017.
This article argues that while the doctrine’s traditional, motive-blind, competence-only formulation has served Indian federalism well, the ordinance jurisprudence culminating in Krishna Kumar Singh shows the Supreme Court already moving beyond it in a narrow but significant class of cases: where a formally competent power is exercised repeatedly in a manner that defeats the constitutional design underlying it. Krishna Kumar Singh, this article contends, offers a template for a similarly narrow, effects-based supplement to the ordinary test, confined to legislation enacted to reverse or circumvent a specific prior determination.
Part II sets out the constitutional basis and settled test. Part III traces the doctrine from the zamindari cases through the sales-tax jurisprudence to Krishna Kumar Singh and the Jallikattu litigation. Part IV argues for a narrow effects-based supplement to the competence-only test, and Part V offers a comparative note, before Part VI concludes.
II. The Existing Legal Framework
A. Constitutional Basis
Article 246 allocates law-making power over the subjects listed in the Union, State, and Concurrent Lists of the Seventh Schedule.3 Where a State law conflicts with a Union law on a Concurrent List subject, Article 254 renders the State law void to the extent of the repugnancy, unless a reserved State Bill has received the President’s assent.4 These provisions presuppose that competence, not policy merit, is the threshold constitutional question, and it is against this backdrop that the doctrine of colourable legislation operates. The same threshold question arises, in a distinct but related form, wherever the Executive is permitted to exercise a legislative function, as under the ordinance-making power conferred by Articles 123 and 213.
B. The Competence Test
The doctrine was authoritatively explained in KC Gajapati Narayan Deo v State of Orissa, where the Supreme Court held that a transgression of constitutional limits on legislative power may be patent and direct, or disguised and indirect, and that only the latter is properly described as “colourable legislation”.5 The enquiry is confined to legislative competence: it asks whether the legislature, in truth and substance, possessed authority over the subject matter, not whether it was pursuing an improper purpose.
This distinction was sharpened in RS Joshi v Ajit Mills, where the Court held that “colourable exercise of power”, “fraud on legislative power”, and “fraud on the Constitution” are interchangeable expressions that convey a single idea, legislative incompetence, and carry no implication of bad faith or dishonest motive on the part of the legislature.6 The Court further held that legislative entries must be read broadly, so as to include all powers reasonably incidental or ancillary to the subject named, which in practice widens the range of enactments that will survive a colourability challenge.7 It is notable, given the discussion in Part III below, that the vocabulary of “fraud on the Constitution”, used here to mean mere incompetence, would later be given a substantially different, effects-based content in the ordinance cases.
III. Case Law Analysis
A. Foundational Application: The Zamindari Abolition Cases
The doctrine first assumed its modern shape in the litigation over the abolition of intermediary land tenures after Independence. In KC Gajapati Narayan Deo, proprietors challenged the Orissa Estates Abolition Act on the ground that an accompanying amendment to the agricultural income-tax law was, in truth, a disguised device to depress the compensation payable to them, and therefore a colourable exercise of the taxation power.8 The Supreme Court rejected the challenge, holding that the dominant purpose and true character of the legislative scheme remained estate abolition, a subject squarely within the State’s competence, notwithstanding its incidental effect on intermediaries’ income.
A companion body of litigation, State of Bihar v Kameshwar Singh, tested the Bihar Land Reforms Act, 1950 on similar grounds. The Supreme Court upheld the Act’s core scheme of abolishing the zamindari system, but found specific compensation provisions illusory and certain sections discriminatory.9 It remains, among the foundational cases, the clearest instance in which particular statutory provisions were treated as an impermissible attempt to dress up a denial of compensation as a legitimate reform measure, even as the Act’s core object survived scrutiny.
B. Consolidation: RS Joshi v Ajit Mills
The 1977 decision in RS Joshi arose from a challenge to a sales-tax provision requiring traders to forfeit amounts wrongly collected as tax from customers. The Court’s insistence that motive is legally irrelevant to the colourability enquiry consolidated the doctrine into the form it retained for the following four decades: a legislature’s honesty or dishonesty of purpose is beside the point, and the only question is whether the enacted measure falls, in pith and substance, within a constitutionally assigned entry.10
C. The Ordinance Cases: Krishna Kumar Singh v State of Bihar
The same State whose land-reform legislation shaped the doctrine in the 1950s later became the source of its most significant contemporary development. Beginning in 1989, the Governor of Bihar promulgated an ordinance taking over the management of four hundred and twenty-nine privately run Sanskrit schools, and then re-promulgated substantially the same ordinance repeatedly rather than placing it before the State Legislature as Article 213(2) required. The Supreme Court had, however, already condemned the practice in DC Wadhwa v State of Bihar, decided in 1987 on the earlier pattern of Bihar ordinances. It described repeated re-promulgation as a colourable exercise of the Governor’s power, observing that the Executive had, in substance, usurped the legislature’s law-making function for years at a stretch.11
When the Sanskrit-schools litigation eventually reached a seven-judge Constitution Bench, the majority, in a judgment delivered by Chandrachud J, held that laying an ordinance before the legislature is a mandatory constitutional requirement, that re-promulgation without such laying is a fraud on the constitutional power conferred by Article 213, and that the satisfaction of the Governor in promulgating an ordinance is not immune from judicial review.12 Article 213(2) requires that an ordinance cease to operate six weeks after the legislature reassembles, or earlier if a resolution disapproving it is passed.13
The Court further held that an ordinance does not, merely by virtue of having been in force, create enduring rights or obligations that survive its cessation. Whether specific rights should nonetheless be protected is to be assessed by reference to a public-interest test applied to the facts of each case. The Court used that test in Krishna Kumar Singh itself to preserve the salaries already paid to the affected teachers, while declining to treat the ordinances as a source of any continuing entitlement.14
D. A Further Contemporary Illustration: The Jallikattu Litigation
A further recent illustration, closer to the doctrine’s original, ordinary-legislation form, is the 2023 dispute over jallikattu, the traditional Tamil Nadu bull-taming sport. After the practice was judicially restricted on animal-welfare grounds, the Tamil Nadu legislature amended State law to permit it subject to regulatory conditions, prompting a challenge that the amendment was a colourable attempt to override the earlier ruling by resort to the wrong legislative entry.15 The Supreme Court upheld the amendment, holding that it fell within the State’s competence over the prevention of cruelty to animals under the Concurrent List, that the amended regime in fact reduced cruelty relative to the pre-amendment position, and that the judiciary could not strike down legislation on the basis of an assumption that it would not be complied with.16
Read together with Krishna Kumar Singh, the case shows the doctrine’s two faces: a pure competence test that leaves an ordinary State amendment undisturbed once a plausible entry is found, and a more exacting, effects-based enquiry that the Court has, in the distinct context of ordinances, been willing to apply where a formally competent power is used repeatedly to defeat the constitutional design underlying it.
IV. Critical Evaluation
The competence-only formulation of the doctrine carries real institutional value. By excluding motive from the enquiry, courts avoid the difficult and speculative task of reconstructing legislative intent, and the doctrine sits comfortably alongside the general presumption that an enactment is constitutional until the party challenging it demonstrates a clear transgression of legislative competence.17 A motive-blind test is also more predictable than one that requires courts to assess the sincerity of a legislature’s stated purpose, and predictability is itself a constitutional value in a federal system that depends on legislatures being able to anticipate the limits of their own power.
These strengths, however, sit uneasily alongside a category of cases the doctrine’s classical formulation was not built to address: measures whose practical function is to reverse or route around a specific prior judicial or constitutional determination, while remaining textually anchored in a power the enacting authority undoubtedly holds. The Jallikattu litigation shows the competence-only test operating exactly as designed, and its outcome may well have been correct on the welfare evidence before the Court. But the case also illustrates how little room that test leaves for asking whether an enactment’s proximate object was to dislodge a specific prior ruling, once a plausible entry has been identified.
Krishna Kumar Singh shows the Supreme Court itself declining to stop at that threshold question in an analogous context. The Governor’s re-promulgation power under Article 213 was never in doubt as a formal matter; each individual ordinance was, on its face, a valid exercise of a power the Constitution plainly confers. What the Court condemned was not a defect of competence but the repeated, cumulative use of that power to achieve, in substance, a permanent legislative regime without ever submitting it to the legislature. This is precisely the kind of effects-based enquiry that the classical colourable-legislation doctrine, as stated in RS Joshi, holds to be irrelevant.18 The Court did not import a general motive enquiry to reach this result. It asked only whether the constitutional design underlying the ordinance power, emergency legislation pending the legislature’s return, had in substance been honoured or defeated by the pattern of conduct before it.
This article suggests that the same narrow, effects-based logic could properly be extended, on a similarly confined basis, to ordinary legislative-reversal cases outside the ordinance context. Courts should continue to apply the pure competence test as the first and ordinarily dispositive enquiry into any challenged enactment. Only where a measure’s undisputed textual object is to nullify or bypass a specific, identifiable judicial or constitutional determination should courts undertake a second, narrowly circumscribed enquiry. The pattern of Bihar ordinances, which bypassed the requirement of legislative scrutiny, is the paradigm. That enquiry would ask whether the constitutional design underlying the relevant power has genuinely been honoured, as opposed to merely evaded through repetition or reformulation. It would examine the enactment’s substance and cumulative effect, not the legislature’s subjective motive, and would therefore remain consistent with the settled principle, reaffirmed even amid the stronger language of Krishna Kumar Singh, that bad faith as such is irrelevant to competence.
A likely objection is that any effects-based supplement, however narrowly drawn, reopens the door to the very motive scrutiny the doctrine was designed to exclude, and that it risks converting ordinary policy disagreement into a constitutional question whenever a legislature responds to an adverse ruling. Krishna Kumar Singh itself suggests an answer: the trigger for the supplementary enquiry was not the Executive’s motive but an objectively verifiable pattern, two hundred and fifty-six ordinances over fourteen years, of using a temporary power as though it were a permanent one. Confined to comparably objective and undisputed patterns of circumvention, the supplement would operate as a narrow exception justified by the very case law that has already applied it, rather than as a general dilution of the competence-only rule that has served Indian federalism well for seven decades.
V. A Comparative Note
The doctrine of colourable legislation did not originate in India; it was absorbed from Canadian and Australian federal jurisprudence, itself traceable to Privy Council decisions applying the pith-and-substance method to disputes between the Dominion and provincial legislatures under the British North America Act.19 A useful point of comparison is Citizens Insurance Co v Parsons, an early Privy Council decision that treated the true nature and effect of a provincial insurance-contract statute as integral to identifying its constitutional character, rather than as a separate or subsequent step from the competence enquiry.20
In much of the Canadian case law that followed, an assessment of a statute’s dominant purpose and practical effect has remained embedded within the pith-and-substance analysis itself, rather than excluded from it as a matter of principle. India’s ordinance jurisprudence, culminating in Krishna Kumar Singh, moves Indian practice closer to this comparative model in its own context, without disturbing the settled, motive-blind character of the ordinary competence test.
VI. Conclusion
The doctrine of colourable legislation, from KC Gajapati Narayan Deo to Krishna Kumar Singh, has provided Indian constitutional law with a stable and predictable means of policing the boundary between competent and incompetent exercises of law-making power, precisely because it ordinarily declines to ask why a legislature acted and asks only whether it was entitled to act.
That stability is a genuine institutional achievement, and this article has not argued for its abandonment. It has argued, more narrowly, that the ordinance jurisprudence culminating in Krishna Kumar Singh already shows the Supreme Court supplementing the competence-only test with a narrow, effects-based enquiry where a formally valid power is used, repeatedly and cumulatively, to defeat the constitutional design underlying it. The Jallikattu litigation illustrates the ordinary doctrine still operating in its classical, competence-only form, and rightly so for the great majority of cases. But the ordinance cases show that Indian courts have already developed the analytical tools needed for the narrow category of cases where that form is not enough.
Extending Krishna Kumar Singh’s logic, on an equally narrow and objectively confined basis, to legislative-reversal cases outside the ordinance context would close a real gap in the doctrine without disturbing the motive-blind, competence-based review that continues to serve Indian federalism well everywhere else.
Reference(S):
Cases
Animal Welfare Board of India v Union of India 2023 SCC OnLine SC 661.
Citizens Insurance Co v Parsons (1881) 7 App Cas 96 (PC).
DC Wadhwa v State of Bihar (1987) 1 SCC 378.
KC Gajapati Narayan Deo v State of Orissa AIR 1953 SC 375.
Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1.
Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538.
RS Joshi v Ajit Mills AIR 1977 SC 2279, (1977) 4 SCC 98.
State of Bihar v Kameshwar Singh AIR 1952 SC 252.
Legislation
Constitution of India 1950, arts 123, 213, 246, 254 and Seventh Schedule.
Secondary Sources
KC Wheare, Federal Government (4th edn, Oxford University Press 1963).
Footnote(S):
1 Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1.
2 Constitution of India 1950, art 246 and Seventh Schedule.
3 Constitution of India 1950, art 246 (n 2).
4 Constitution of India 1950, art 254.
5 KC Gajapati Narayan Deo v State of Orissa AIR 1953 SC 375.
6 RS Joshi v Ajit Mills AIR 1977 SC 2279, (1977) 4 SCC 98.
7 RS Joshi (n 6).
8 KC Gajapati Narayan Deo (n 5).
9 State of Bihar v Kameshwar Singh AIR 1952 SC 252.
10 RS Joshi (n 6).
11 DC Wadhwa v State of Bihar (1987) 1 SCC 378.
12 Krishna Kumar Singh (n 1).
13 Constitution of India 1950, art 213(2).
14 Krishna Kumar Singh (n 1).
15 Animal Welfare Board of India v Union of India 2023 SCC OnLine SC 661.
16 Animal Welfare Board of India (n 15).
17 Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538.
18 Krishna Kumar Singh (n 1).
19 KC Wheare, Federal Government (4th edn, Oxford University Press 1963).
20 Citizens Insurance Co v Parsons (1881) 7 App Cas 96 (PC).
