Same–Sex Adoption and Parental Rights in India

Navtej Singh Johar and Others v. Union of India marked the landmark event of legal recognition of same-sex relationships. There has been massive progress in terms of decriminalising homosexuality by striking down section 377 of the Indian Penal Code. The court held that Section 377, insofar as it criminalised consensual sexual acts between adults in private, violated Articles 14, 15, and 21 of the Indian Constitution, which guarantee the rights to equality, non-discrimination, and personal liberty, respectively.

However, despite the decriminalisation of same-sex relationships, Indian laws continue to discriminate against same-sex couples in adoption and marriage rights. Existing legislation fails to evolve with societal changes and constitutional values, violating fundamental rights to equality, non-discrimination, and personal liberty.

There is a lack of legislative reforms or societal acceptance of the matter, making legalisation problematic. Same-sex adoption and parental rights in India are an evolving area of law and policy. There are primarily four statutes that govern and regulate marriage relationships, adoptions and custody in India

1. The Hindu Adoption and Maintenance Act, 1956
2. The Guardianship and Wards Act, 1980
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. Central Adoption Resource Authority Regulations

The Hindu Adoption and Maintenance Act of 1956 allows single individuals to adopt, provided they are of sound mind and have reached the age of majority. However, the Act does not traditionally recognise same-sex couples under its potential adopters, and the language used implies a heterosexual relationship set-up.

Similarly, the Guardian and Wards Act of 1890 allows single individuals to become guardians, but it does not recognise same-sex couples as co-guardians or co-parents. Therefore, it is not possible for a homosexual couple. This deprives same-sex couples of a family status, which is both violative of Article 15 and makes it difficult for them to live with dignity.

On the brighter side, the Juvenile Justice Act 2000 is more inclusive. It allows for adoption by single individuals irrespective of their sexual orientation, but it remains silent on the rights of same-sex couples to adopt jointly.

As defined under Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, adoption enables a biological child of one set of parents to become the child of another or single parent. The difference between the status of children adopted or born to an individual is sourced from the amendment introduced in the Juvenile Justice Act, 2000, which was conducted to secularise the Act while permitting full adoptions without regard to the individual religions. As for rights, privileges, and relationships, the gap created in this area was filled by the Juvenile Justice (Care and Protection of Children) Act, 2006, wherein adopted children have been accorded the same rights and privileges as biological children.

Central Adoption Resource Authority, or CARA, is an agency of utmost importance in the adoption scenario in India. Under the Ministry of Women and Child Development’s purview, it has its specific guidelines. While not expressly denying the possibility of same-sex adoption under the CARA Regulations, it does not actively facilitate it either. There exists an eligibility for prospective adoptive parents under Section 5, a stipulation of at least two years of continued cohabitation to determine suitability for eligibility for couples, which excludes same-sex couples as their marriages are not recognised in India.

Same-sex couples do not enjoy the right to marry in India. Legal recognition of same-sex marriages and adoption rights would not only affirm the dignity of LGBTQ+ individuals but also provide better opportunities for orphaned children to grow up in nurturing families. Making it necessary for a couple to stay married to adopt jointly indirectly disallows same-sex couples as their marriages don’t enjoy legal recognition or validity. Therefore, adoption laws in India violate Fundamental rights under Article 15.

The LGBTQIA+ face significant challenges in various forms of biological parenthood and Surrogacy. Altruistic surrogacy is forbidden for homosexual couples under the 2021 Surrogacy Regulation Act. This contributes to the stereotypical perception of a family by assuming a heteronormative household dynamic and a lack of female autonomy. According to Indian law, societal norms, and religious doctrine, a child’s holistic development requires that both parents come from different sexes. This idea is based on hypocrisy because it allows widowed and divorced women to use ART services. This is discriminatory and disallows surrogacy for members of the LGBTQIA+ community.

However, the social views and acceptance of this topic are changing with more judicial support. Despite the lack of legislative reform, the judiciary has tried its best to uphold justice.

Arun Kumar Sreeja v. Inspector General of Registration, 2019

The Madras High Court recognised a marriage between a cisgender man and a transwoman, affirming that the term ‘bride’ in the Hindu Marriage Act includes transgender persons. This decision highlighted the judiciary’s evolving stance on LGBTQ+ rights.

Laxmi Kant Pandey v. Union of India, 1984

This case underscored the child’s right to a family, advocating for policies ensuring children develop in a healthy and dignified environment, which could support arguments for same-sex adoption.

Indra Sarma vs . V . K . V . Sarma, 2013

This case broadened the scope of the Domestic Violence Act of 2005 by including unmarried couples and couples in a live-in relationship in the definition of a family for the act. Couples who live under the same roof, perform chores together, and live in a relationship in the nature of a marriage are considered a family under this act.

Suresh Kumar Koushal v. NAZ Foundation,2023

The Suresh Kumar Koushal case highlights the evolving judicial perspective on LGBTQ+ rights in India and underscores the importance of constitutional rights in protecting minorities.

Communities. The ultimate decriminalisation of Section 377 represents a critical milestone in India’s fight for equality and justice.

The Supreme Court’s decision was met with widespread criticism and protests from LGBTQ+ activists, human rights organisations, and the broader public, who viewed it as a setback for human rights in India. Several review petitions were filed against the Supreme Court’s judgement. However, these petitions were initially dismissed. Subsequently, curative petitions were filed, the last judicial resort in India. The Supreme Court admitted these petitions, and the matter was referred to a larger bench in Navtej Singh Johar.

Supriyo @ Supriya Chakraborty & Anr v. Union of India, 2023

In this case, the Supreme Court of India unanimously determined that the Constitution does not guarantee an unqualified fundamental right to marry. The Court upheld the constitutional validity of Section 4 of the Special Marriage Act (SMA) and Section 4 of the Foreign Marriage Act (FMA), which only recognise heterosexual marriages.

The court held that the right to relationship for queer couples might exist but asserted that the judiciary could not create a right to marry without a corresponding statute. The case originated from multiple petitions filed in Indian High Courts seeking legal recognition for the marriages of LGBTQIA+ couples. The Supreme Court consolidated nine similar petitions from the Delhi and Kerala High Courts and referred them to a constitutional bench.

The Court concluded that the right to marry is not a fundamental right and upheld the SMA and FMA provisions. It noted that invalidating these progressive laws would strip various couples of their legal benefits, including those in inter-faith, inter-caste, and international marriages.

The Supreme Court held that integrating queer unions into existing marriage laws would intrude into the State’s legislative domain, necessitating state-made laws to recognise LGBTQIA+ marriages. Additionally, the Court held that not extending marriage rights to LGBTQIA+ individuals does not infringe on their rights to privacy, autonomy, and dignity.

REFERENCES

1. The Hindu Adoption and Maintenance Act, 1956
2. The Guardianship and Wards Act, 1980
3. The Adoption Regulations, 2017 (Central Adoption Resource Authority Regulations)
4. https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
5. The Juvenile Justice (Care and Protection of Children) Act, 2015
6. The Surrogacy Regulation Act, 2021
7. https://timesofindia.indiatimes.com/india/from-same-sex-marriage-to-adoption-rights-for- queer-couples-key-takeaways-from-sc-verdict/articleshow/104502058.cms
8. https://economictimes.indiatimes.com/news/india/unmarried-couples-including-queer-co uples-can-jointly-adopt-child-cji-in-minority-verdict/articleshow/104505574.cms?from= mdr
9. https://ijalr.in/volume-3/issue-1/legal-status-of-adoption-by-same-sex-couples-in-india-an around-the-world-a-critical-analysis-by-shraddha-formula/
10. https://cjp.org.in/a-case-for-same-sex-adoptions/

SETTING ASIDE OF ARBITRAL AWARD

INTRODUCTION

An arbitral award can be set aside by the court if it violates public policy, if there is evidence of partiality by the arbitrator, if one of the parties was under an incapacity if there were procedural irregularities, or if the subject matter of the dispute is not capable of being resolved through arbitration.

GROUNDS FOR SETTING ASIDE OF AN ARBITRAL AWARD

Section 34 of the Arbitration and conciliation act 1996 

Sec 34(2) of the said act deals with the arbitral award set aside by the court.

(2) An arbitral award may be set aside by the Court only if—

(a) The party making the application establishes that:
(i) a party was under some incapacity; or
(ii) the arbitration agreement is invalid under the law to which the parties have subjected it, or, in the absence of such indication, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case; or
(iv) the arbitral award addresses a dispute not contemplated by or not falling within the terms of the submission to arbitration; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement conflicts with a provision of this Part from which the parties cannot derogate, or, in the absence of such agreement, was not in accordance with this part or

(b) the Court finds that—

      (i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or 

      (ii) The arbitral award is in conflict with the public policy of India

Nakshatra Infrastructure Ltd. v. Brigade Enterprises Ltd. (2020) 

When talking about this specific case, the Karnataka High Court in part decided on the grounds for setting aside arbitral awards and stressed the court’s adopting a hands-off approach in cases where the award is not in violation of public policy or contrary to the fundamental principles of justice and morality.

TIME LIMIT FOR APPLYING FOR THE SETTING ASIDE 

According to sec 34(3) of the said act states that the application for setting aside the arbitral award needs to be filed within the three months from date on which the application of arbitral award received or additional award under section 33 of the act had been disposed by the tribunal.

The Court may accept the application within thirty days of this period if it is satisfied that a sufficient cause prevented the applicant from applying in accordance with the above three-month period.

Waaree Energies Limited, vs. Sahasradhara Energy Pvt. Ltd.

The Honble court held that if there is no proper presentation of a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 within the limitation period prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996, either on account of non payment of court fees or payment of deficit court fees, condoning the delay in representation beyond the period prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996 is not permissible.

PROCEDURE FOR APPLICATION 

1. Issuing the prior notice 

According to Section 34(5) of the Arbitration and Conciliation Act, 1996, it is required that before submitting an application to set aside an arbitral award, the party must first give prior notice to the other party regarding their intention to file such an application

In  Dulal Podda v. Executive Engineer, Dona Canal Division (2003),

the Court held that the appointment of an arbitrator at the request of the appellant of the dispute without sending a notice to the respondent and an ex-parte decree given by the arbitration Tribunal will be held illegal and liable for setting aside.

2. The application to set aside an arbitral award.

According to section 34(3) an application to set aside an arbitral award cannot be made after three months have passed from the date when the party received the arbitral award or, if a request was made under section 33, from the date when that request was resolved by the arbitral tribunal. However, if the Court determines that the applicant had a valid reason that prevented them from making the application within the initial three-month period, it may consider the application within an additional thirty-day period.

3. Enforcement

According section 36 of the 1996 act states that if the period for filing an application to set aside the arbitral award under section 34 of the act has expired then the award can be enforced using the procedure in the code of civil procedure 1908.

Angle Infrastructure Pvt.Ltd. vs Ashok Manchanda & Ors.

The Hon’ble court mentioned that “Therefore, enforcement of such settlement would have to be effected in accordance with Section 36 under Chapter-VIII of the Arbitration and Conciliation Act, 1996. It is dealt under Section 36 for Enforcement that an arbitral award would be enforced "under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree." Hence, such conciliation initiated by voluntary acts as contained in Part-III of the Arbitration and Conciliation Act, 1996 does not envisage intervention of the court except for the purposes of enforcement thereof which has to be by the civil court as it were a decree of the court. A settlement in the conciliation, therefore, would not result in a decree."

CASE LAW 

J.G. Engineers Pvt. Ltd. v. Union of India, (2011) 5 SCC 758,

The Supreme Court held that in the event an award decides several claims separately and distinctly, and an error is identified in some of the claims, then the unaffected claims must be segregated and upheld. In this case, the High Court of Guahati had found an error only in relation to some of the claims but it proceeded to set aside the entire award as a whole on the reasoning that if the arbitral tribunal allowed certain counterclaims, the amounts granted under the upheld claims would also have to be adjusted. The Supreme Court, however, disagreed with the reasoning adopted by the High Court. The Supreme Court relied upon the doctrine of severability to uphold the power of courts to partially set aside awards where the claims were separate and distinct.

ANALYSIS OF SECTION 156 OF THE CRIMINAL PROCEDURE CODE WITH SPECIAL EMPHASIS ON POWERS OF MAGISTRATE

Introduction

The powers of the police to investigate a crime are delineated under Sections 154 and 156 of the Code of Criminal Procedure. The primary distinction between these provisions lies in the initiation of the investigation. Under Section 154, the police can commence an investigation only upon receiving information. Conversely, under Section 156, the police have the authority to initiate an investigation on their own accord or based on their knowledge.

The scope of Section 156 is limited to situations where the police exercise their powers according to the procedure established by law. This interpretation has been affirmed by the Hon’ble Supreme Court in the case of H.N. Rishbud and Inder Singh v. State of Delhi (1954). [1]If the police exercise their powers illegitimately, the Magistrate has the authority to intervene in the investigation. Additionally, any investigation conducted under Section 156 must comply with Section 173 of the Code, which requires the police to submit the final investigation report to the Magistrate who has jurisdiction to try the case.[2]

Investigations under Section 156 differ from those under Section 202 of the Code. The scope of Section 202 is limited to assisting the Magistrate in determining whether there are sufficient grounds to proceed further with the case. In contrast, Section 156 grants the police unrestricted power to conduct an investigation without the need to complete the formalities of filing a First Information Report (FIR). The latter part of the article provides a more detailed discussion of the differences between these two provisions.

Section 156 of The Criminal Procedure Code, 1973

Section 156 of the Criminal Procedure Code, 1973 is as follows:

Police officer’s power to investigate cognizable case. —

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.[3]

Power of Police 

Under Section 156 of the Criminal Procedure Code (CrPC), the police are vested with extensive authority to conduct investigations into cognizable offenses. This provision allows the police to initiate and carry out an investigation without requiring prior authorization from a judicial authority. This autonomy ensures that the police can respond swiftly and effectively to criminal activities.

Upon completion of the investigation, the police are mandated to submit a report to the competent Magistrate as stipulated in Section 173 of the CrPC. This final report, often referred to as a charge sheet or closure report, is crucial for the judicial process, as it informs the Magistrate of the findings and the subsequent legal proceedings.

In addition to the initial investigation, the police have the authority to conduct further investigations under Section 173(8) of the CrPC. This provision is significant as it allows for the gathering of additional evidence or the re-examination of existing evidence if new facts or circumstances come to light. Such flexibility is essential in ensuring that justice is served, as it accommodates the dynamic nature of criminal investigations.

Mostly, the Judiciary in this case will play an oversight role. The Magistrate supervises and ensures that the investigations by the police follow the law and due process in their investigation. However, the Magistrate’s ability to intervene in the investigation is limited. Interference is only permissible if the police are found to be exercising their powers illegitimately or in a manner that contravenes legal norms and procedures. This restriction is vital for maintaining the independence of the police force in carrying out their investigative duties while providing a mechanism for judicial oversight to prevent abuse of power.

In summary, Section 156 of the CrPC empowers the police with significant investigative authority over cognizable offenses, ensuring prompt and efficient law enforcement. The requirement to submit investigation reports under Section 173 and the provision for further investigations under Section 173(8) enhance the thoroughness and flexibility of the investigative process. Meanwhile, the limited scope for judicial interference underscores the importance of adherence to legal procedures, balancing the autonomy of the police with necessary judicial oversight to uphold the rule of law.

Power of Magistrate 

Section 156(3) of the Criminal Procedure Code (CrPC) empowers a Magistrate to order the police to investigate a cognizable offense. However, the Magistrate must be competent to take cognizance of the case under Section 190 of the CrPC for such an order to be valid. If the Magistrate lacks this competence, any directive to the police for investigation would be rendered invalid.[4]

It is important to note that not all actions by the Magistrate constitute “taking cognizance” under Section 190. For instance, if the Magistrate orders an investigation under Section 156(3) or issues a search warrant to aid the investigation, this does not amount to taking cognizance, as clarified by the Supreme Court in Mohd Yousuf v. Smt. Afaq Jahan and Anr (2004).[5]

In R.R. Chari v. State of U.P. (1951), the Supreme Court held that a Magistrate’s powers under Section 156(3) are not confined solely to cases under Section 190(1)(c), where the Magistrate takes cognizance on his own motion or based on information received. These powers also extend to cases under Section 190(1)(a), where cognizance is taken based on a complaint presented before the Magistrate. Nevertheless, the Magistrate’s authority under Section 156(3) does not include interfering with the police’s investigation process.[6]

Powers of Magistrate under The Criminal Procedure Code, 1973

Section 156(3) of the Criminal Procedure Code (CrPC), which operates at the pre-cognizance stage, empowers a Magistrate, who is authorized to take cognizance under Section 190 of the CrPC, to order an investigation into any cognizable case. The Supreme Court in Panchabhai Popatbhai Bhutani & Others [7]ruled that a petition under Section 156(3) should not be strictly construed as a complaint in terms of Section 2(d) of the Code. The absence of a specific or properly worded prayer or lack of complete and definite details would not invalidate a petition under Section 156(3) as long as it states facts constituting the ingredients of a cognizable offense. Such a petition is maintainable before the Magistrate.

The issue of whether a Magistrate can direct the registration of an FIR against public servants for acts performed in the discharge of their duties without the sanction of the appropriate authority was considered by the Supreme Court in several cases. In Anil Kumar’s case, it was held that the Magistrate could not order the registration of an FIR without sanction by the appropriate authority. This requirement does not apply to individuals who are not public servants.

The Supreme Court has clarified the scope of Section 156(3) CrPC in several rulings. It is well established that the law does not prescribe a specific format for applications under Section 156(3) CrPC, nor does it require a verbatim reproduction of the factual allegations or all the ingredients of the alleged offense. However, it is imperative that the application under Section 156(3) contains facts disclosing a cognizable offense.

If the police fail to exercise their powers under Section 154 CrPC despite receiving intimation, the Magistrate can order an investigation under Section 156(3) CrPC. The Magistrate cannot refer the matter under Section 156(3) CrPC against public servants for acts done in the discharge of their duties without a valid sanction order. The Magistrate’s application of mind should be reflected in the order.[8]

In Priyanka Srivastava’s case[9], the Supreme Court provided detailed guidelines on Section 156(3) CrPC, that;

• Magistrates must remain vigilant regarding the allegations and the nature of the allegations and should not issue directions without proper application of mind.
• They should ensure that sending the matter for investigation is conducive to justice.
• Applications under Section 156(3) CrPC should be supported by an affidavit duly sworn by the applicant
• The affidavit ensures that the applicant is responsible and helps to verify the veracity of the allegations.
• The Magistrate should only send deserving cases for police investigation.

The Supreme Court has expressed concerns about unwarranted criminal prosecution of police officers. Subjecting police officers to unwarranted criminal prosecution for registering a case can undermine the fair investigation of the crime and negatively impact the morale and effectiveness of the police machinery, which can have serious and far-reaching consequences for society.[10]

Following the Supreme Court’s decision in Lalitha Kumari vs. Government of UP, [11] an initial investigation must be conducted by the police in particular cases to decide whether the information discloses the commission of a cognizable offense. This is done to screen out petty and vexatious complaints so that they reach the Magistrate only genuine cases with which he will have to send to the police for investigation.

Difference Between Investigation under Section 156 (3) and Section 202 of the Criminal Procedure Code

Confusion often arises regarding the relative scope of Section 156(3) and Section 202 of the Code of Criminal Procedure. Many matters have been decided in the past about the difference between these two provisions and whether or not they were applicable. One of the important cases was decided by the Hon’ble Supreme Court in 2021, under the title, Supreme Bhiwandi Wada Manor v. State of Maharashtra, dealing with explaining the differences between the two sections. [12]It stated that an order under Section 156(3) serves as a “pre-emptive reminder or intimation to the police to exercise their primary duty and power of investigation” and is independent of the process under Section 202. The power under Section 156(3) is broader than that under Section 202; it can be exercised even before cognizance is taken. Conversely, Section 202 can only be invoked after the Magistrate has taken cognizance of the issue.

A similar perspective was provided by the Supreme Court in Suresh Chand Jain v. State of Madhya Pradesh (2001), [13]where it was held that Section 156 pertains to the police officer’s authority to investigate cognizable offences, while Section 202 pertains to the Magistrate’s authority to direct an investigation by a police officer. Under Section 156, a Magistrate can order an investigation prior to taking cognizance. However, once cognizance is taken under Section 190, the standard complaint process must be followed.

The case of Ramdev Food Products v. State of Gujarat (2015) [14]further clarified the differences in the nature of cases handled under these provisions. The Supreme Court noted that Section 156(3) requires the Magistrate to apply their mind and can be exercised when credible information is available or when justice necessitates an immediate investigation. In contrast, Section 202 deals with situations where limited material is available, requiring the Magistrate to determine whether there is sufficient ground to proceed. These distinctions have been frequently cited by courts and were recently reaffirmed by a two-judge bench in Kailash Vijayvargiya v. Rajlakshmi Chaudhuri (2023).

Relevant Judgments 

• Ashok Gyanchand Vohra v. State of Maharashtra (2005)[15]

In this case, an organized crime was reported through a private complaint under Section 9 and Section 23 of the Maharashtra Control of Organized Crime Act, 1991. The Hon’ble Bombay High Court addressed whether the Special Court under this Act could order an investigation under Section 156(3) of the Code of Criminal Procedure (CrPC). Affirmatively, the High Court held that the Special Court possesses the powers of a Magistrate for the purposes of the Act, treating it as a court of original jurisdiction for taking cognizance of any matter.

• Laxmi Mukul Gupta @ Lipi v. State of Maharashtra (2018)[16]

In this instance, the petitioner sought the registration of an FIR under Section 156(3) of CrPC against the respondent for an offence under Section 420 of the Indian Penal Code (IPC). The Metropolitan Magistrate granted the application and directed the police to register an FIR. However, the Hon’ble Bombay High Court quashed this order, ruling that a Magistrate’s discretion under Section 156(3) is limited to determining whether the case involves a cognizable offence necessitating police investigation. It emphasized that intervention at the pre-cognizance stage is not permissible under this provision.

• C. Kumaravel v. Director General of Police (2019)[17]

The petitioners sought the High Court’s inherent jurisdiction under Section 482 of CrPC to direct the police to register their complaint. The Hon’ble Madras High Court clarified that when the police refuse to register an FIR under Section 154 of CrPC, the appropriate remedy is to resort to Section 156(3). Section 482 should not be used as an alternative. The Court issued guidelines, specifying that petitions under Section 482 must follow compliance with Sections 154 and 156(3) and be accompanied by an affidavit detailing the complaint’s history.

• Jaisingh Agrawal v. State of Chhattisgarh (2020)[18]

The petitioners challenged an order by a Special Court under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, directing the police to register an FIR. The primary contention was the Special Court’s lack of jurisdiction under Section 156(3) of CrPC. The Hon’ble Chhattisgarh High Court dismissed this contention, affirming the Special Court’s power under Sections 156 and 193 of CrPC and the Atrocities Act. It concluded that the Special Court could take cognizance and direct investigations without committal proceedings.

• Supreme Bhiwandi Wada Manor v. State of Maharashtra (2021)[19]

This case involved an appeal against a Bombay High Court order granting anticipatory bail, which questioned the Magistrate’s order to register an FIR under Section 156(3) without examining the complainant on oath as per Section 200 CrPC. The Hon’ble Supreme Court held that the High Court erred in requiring the complainant’s examination before the police investigation. It clarified that a Magistrate’s power under Section 156(3) is limited to determining if the crime is cognizable and whether police investigation is warranted.

• Smt. Rajlakshmi Chaudhuri v. State of West Bengal (2021)[20]

Here, the petitioner’s application under Section 156(3) of CrPC was rejected due to a nearly two-year delay in lodging the complaint. The Hon’ble Calcutta High Court noted that while delay could affect the merits of the case, it should not be the sole reason to reject a Section 156(3) application. The Court emphasized that the Magistrate must either direct a police investigation or, if taking cognizance, proceed under Section 202.

• Anjuri Kumari v. State (NCT of Delhi) (2023)[21]

The petitioner, after exhausting remedies at the Magistrate and Sessions levels, sought to invoke the High Court’s inherent jurisdiction under Section 482 of CrPC. The Hon’ble Delhi High Court ruled that such jurisdiction is only permissible in rare cases of grave miscarriage of justice or illegality. It upheld the Magistrate’s discretion under Section 156(3), stating that the Magistrate is not bound to direct an investigation even if a cognizable offence is made out.

• X v. Y (2023)[22]

In this case, a quashing petition was filed against an order by a Magistrate directing police investigation under Section 156(3) of CrPC without prior FIR registration. The Hon’ble Andhra Pradesh High Court rejected the petitioner’s contentions, emphasizing the serious fraud allegations and the necessity of a trial. It clarified that a Magistrate’s direction under Section 156(3) need not include detailed reasons, particularly when documents require thorough examination, thereby dismissing the quashing petition.

Recommendations

Magistrates acting under Section 156(3) CrPC should be competent to order the registration of a case (FIR) and the subsequent investigation. It is crucial that when passing such orders, Magistrates must apply their minds, and this application of mind should be clearly reflected in the order. To enhance the responsibility of complainants, the CrPC should be amended to require that applications under Section 156(3) be accompanied by a sworn affidavit. Instead of ordering the immediate registration of an FIR, Magistrates may first direct a preliminary inquiry by the police to verify the truthfulness and genuineness of the complaints. [23]In cases involving public servants, Magistrates should not direct the registration of an FIR without obtaining a valid sanction under Section 197(1) of the CrPC. Additionally, complaints against police officers for registering FIRs should undergo detailed scrutiny to ensure their genuineness, thereby preventing vexatious prosecutions. Ultimately, Magistrates should ensure that only deserving cases are referred for police investigation.

Conclusion

Section 156 of the Criminal Procedure Code (CrPC) endows the police with broad authority to investigate cognizable offenses without requiring prior judicial approval. This section delineates the roles and powers of both the police and the Magistrate in the investigative process. The police can initiate and carry out an investigation on their own accord when a cognizable offense is reported or comes to their notice.

The Magistrate also plays a crucial role under Section 156, with the authority to direct the police to conduct an investigation, when necessary, particularly in instances where the police have failed to take action on a cognizable offense. This ensures that the investigative process is not stalled due to police inaction. It is important to note that the Magistrate’s power to order an investigation is confined to cases involving cognizable offenses.

Moreover, the Magistrate has a supervisory role to ensure that the police comply with the procedures established by law during their investigation. This supervisory function is critical to maintaining the integrity and legality of the investigative process.

However, the Magistrate’s powers are restricted to the pre-cognizance stage of the proceedings. Once the Magistrate has taken cognizance of the offense, he or she cannot direct the police to conduct further investigations. This limitation ensures a clear demarcation of roles and responsibilities between the investigatory and judicial functions, maintaining the balance and checks inherent in the criminal justice system.

In conclusion, Section 156 of the CrPC establishes a framework that grants the police substantial investigative powers while simultaneously ensuring that there is judicial oversight to prevent potential misuse of these powers. On one hand, this provision makes it possible for law enforcement to act with some degree of urgency in respect to cognizable offenses committed against individuals by the other. On the other hand, it does not overlook such procedural safeguard which the individual may have under judicial supervision. This dual mechanism is, in short, required to be able to practice effective and fair criminal justice.

DOCTRINE OF ECLIPISE

INTRODUCTION

When India’s Constitution came into effect on January 26, 1950, it guaranteed fundamental rights to its citizens. Even before these rights were granted, there were existing laws conflicting with the newly created rights. The Doctrine of Eclipse was developed by the Supreme Court of India to deal with this situation. If a law existed before the Constitution and was inconsistent with its fundamental rights that law was considered "eclipsed" or temporarily invalid. However, if the law is later amended to align with the Constitution’s provisions, it is revived and becomes enforceable again. This doctrine ensures that laws eventually conform to constitutional standards while allowing for the correction of earlier inconsistencies 

Article 13 of the Constitution of India is crucial because it protects our fundamental rights, which are outlined in Part III of the Constitution. It states that the government cannot make any law that violates these fundamental rights. Think of it like a protective shield around our rights. If the government tries to pass a law that goes against our fundamental rights, Article 13 steps in to prevent that law from being enforced. This ensures that our rights are respected and upheld by law.

Articles 32 and 226 are also important because they provide ways for citizens to challenge any infringement of their fundamental rights after the fact. They allow people to go to court and seek remedies through writs and public interest litigation. So, while Articles 32 and 226 deal with what happens if our rights are violated, Article 13 sets the stage by making sure that such violations shouldn’t happen in the first place. It’s like setting boundaries to protect our fundamental rights right from the beginning.

Article 13 of the Indian Constitution

Article 13 (1) talks about the pre-independence laws

Article 13(1) of the Constitution of India states that any law or order in India that was in force before the Constitution came into effect shall be considered void if it contradicts the fundamental rights guaranteed by the Constitution.

Before India adopted its Constitution, British laws were in force and some of them did not respect the rights of Indian citizens. Article 13(1) ensures that on the day the Indian Constitution was adopted, any existing law that went against these new fundamental rights became invalid. This provision helped remove laws that were inconsistent with the rights and freedoms promised to Indian citizens under the Constitution.

In essence, Article 13(1) acted as a safeguard to ensure that all laws in India are in line with the fundamental rights enshrined in the Constitution, marking a significant step towards protecting the rights of Indian citizens from laws that were not compatible with these rights.

Article 13 (2) talks about the post-independence laws

Article 13 (2) says that the state shall not make any law that is not consistent with part III of the constitution. If any law made after the commencement of the constitution by the state is inconsistent with part III, the law will become void. Article 13 (2) provides 2 points:

• The state will not make any law that is inconsistent with fundamental rights.

• If the state makes any law that is contrary to part III of the constitution, that law will become void ab initio.

The Doctrine of Eclipse deals with laws made by the Legislature that clash with the fundamental rights guaranteed in Part III of the Constitution of India. When such a clash occurs, the law is not completely nullified but becomes ineffective or "eclipsed" to the extent that it contradicts fundamental rights.

Imagine a law cast in the shadow of fundamental rights. While in this state, it cannot be enforced—it’s like it’s sleeping or dormant. However, if the fundamental rights are later amended to accommodate the law, the shadow is lifted, and the law becomes valid and enforceable again.

So, rather than being immediately void from the start, a law that violates fundamental rights under the Doctrine of Eclipse is temporarily ineffective until it aligns with constitutional standards. This principle ensures that laws eventually comply with the Constitution without immediately invalidating them. It is not a nullity or void ab initio

1. Origin and Scope: The Doctrine of Eclipse comes from Article 13(1) of the Indian Constitution, which states that any law existing before the Constitution, inconsistent with Part III (Fundamental Rights), is void to the extent of inconsistency.

2. Prospective Nature: It considers applying these primary rights from the moment when the Constitution becomes operative. Any law contravening such rights is neither void ab initio nor automatically unenforceable but dormant until such time as it qualifies to constitutional specification.

3. Status of Pre-Constitutional Laws: Laws conflicting with fundamental rights aren’t considered null and void from the beginning. Instead, they’re in a dormant state, inactive until they’re amended to comply with constitutional requirements.

4. Application to Past Transactions: These laws apply to deeds in the past. Rights and obligations that have come into being by the time this Constitution was brought into force are the ones covered by the laws.

5. Applicability to Non-Citizens: Such laws may still apply to individuals who aren’t granted fundamental rights, like non-citizens, as long as they don’t contradict other laws or international agreements.

On the contrary, the "Doctrine of Eclipse" is that somewhat subtle principle which has been able to save the "pre-constitutional laws" from total obliteration. In fact, it has provided the same legality between pre-constitutional and post-constitutional positions about various laws; this has ensured the success of constitutionalism in its every sense.

Salient features of the Doctrine of Eclipse:

1. Applicability to Pre-Constitutional Laws: The Doctrine of Eclipse applies to laws that were valid before the Indian Constitution came into effect on January 26, 1950. If these laws conflict with fundamental rights, they become inactive or dormant but not completely void.

2. Non-Applicability to Post-Constitutional Laws: It does not apply to laws created after the Constitution’s adoption because such laws are invalid from the beginning if they violate fundamental rights. However, there are exceptions for non-citizens who may not benefit from this voidness.

3. Conflict with Fundamental Rights: However, a pre-constitutional law cannot be in conflict with the fundamental rights that are within the Constitution. In such cases, the law is obliterated, and it will not be enforced until the requirement of the constitution is satisfied.

4. Inoperative Nature: Instead of being null and void from the outset, the law remains in a dormant state. It’s like it’s asleep and cannot be enforced until it’s amended to comply with the Constitution.

5. Effect of Fundamental Rights Amendment: If the fundamental rights relevant to the law are amended in the future to accommodate it, the law automatically becomes valid and enforceable again.

EVOLUTION OF DOCTRINE OF ECLIPSE

The development of the Doctrine of Eclipse in simpler terms based on the cases mentioned:

1. Keshavananda Bharti Case (Prospective/Retrospective Nature):

  – Keshavananda Bharti v. State of Bombay dealt with the Indian Press (Emergency Powers) Act of 1931. The petitioner argued that this law violated their freedom of speech and expression under Article 19(1) (a) of the Constitution.

  – The Supreme Court ruled that laws inconsistent with fundamental rights are ‘void’ to the extent of their inconsistency. However, ‘void’ doesn’t mean the law is repealed immediately; it means the law remains unenforceable until it is amended to comply with the Constitution.

  – The Court also established that fundamental rights generally apply prospectively, meaning they apply from the time of the Constitution’s adoption onwards.

2. F.N. Balsara & Behram Khurshid Pesikaka Case (Nexus between Article 13(1) and Pre-Constitutional Laws):

  – In the case of F.N. Balsara and later in Behram Khurshid Pesikaka v. State of Bombay, the Supreme Court explored the connection between Article 13(1) and pre-constitutional laws.

  – It was held that if a specific provision of a law violates fundamental rights, only that particular provision becomes inoperative, not the entire law.

  – The burden of proving citizenship and the violation of rights lies with the accused challenging the law.

3. Bhikaji Narain Dhakras Case (Genesis and Evolution):

  – In Bhikaji Narain Dhakras v. State of Madhya Pradesh, the Supreme Court refined the Doctrine of Eclipse.

  – The case involved the C.P. and Berar Motor Vehicles Amendment Act of 1947, which allowed the state to regulate motor transport businesses.

  – This law was found to violate Article 19(1) (g) (right to practice any profession or occupation), and thus it was initially rendered inoperative under the Doctrine of Eclipse.

  – When Article 19(1) (g) was amended in 1951, removing the inconsistency, the law became enforceable again.

  – The Court clarified that amendments to fundamental rights remove the ‘shadow’ over such laws, making them valid and enforceable once more.

These cases illustrate how the Doctrine of Eclipse operates in relation to pre-constitutional laws that conflict with fundamental rights. It ensures that such laws are not immediately struck down but rather remain inoperative until they are brought into conformity with constitutional standards through amendments or other legal measures.

LANDMARK JUDGEMENTS RELATED TO THE DOCTRINE OF ECLIPSE

There has always been a legal struggle concerning the applicability of the Doctrine. Does the Doctrine apply to Article 13(1), i.e. Pre-Constitutional Laws or Article 13(2), i.e. Post-Constitutional Laws? This struggle has been the crux of the issue that has been argued in several cases. The same was settled in the case of Bhikaji Narain and Deep Chand.

In the case of Deep Chand v. State of Uttar Pradesh, the Supreme Court clarified the scope of the Doctrine of Eclipse:

1. Applicability to Pre-Constitutional Laws: The Doctrine of Eclipse applies specifically to laws that existed before the Constitution came into force (pre-constitutional laws). These laws, if found inconsistent with fundamental rights under Article 13(1), are not immediately void but become inactive or dormant until amended.

2. Non-Applicability to Post-Constitutional Laws: Post-constitutional laws, created after the adoption of the Constitution, are treated differently. If they violate fundamental rights, they are considered void from the beginning (‘void ab initio’). This means they are invalid and cannot be enforced at any point.

3. Subsequent Cases: The decisions in Bhikaji Narain Dhakras and Deep Chand were reaffirmed and upheld in subsequent cases such as State of Gujarat v. Ambica Mills, Mahendra Lal Jain v. State of Uttar Pradesh, P. L. Mehra v. D. R. Khanna, and Sagir Ahmed v. State of Uttar Pradesh.

The Doctrine of Eclipse preserves pre-existing laws but requires them to align with the Constitution’s fundamental rights. Post-constitutional laws violating these rights are immediately invalid, ensuring that all laws comply with constitutional standards right from their enactment.

The Doctrine of Eclipse in relation to Article 368 of the Indian Constitution, based on the cases mentioned:

1. Golaknath Case (Eclipse of Article 368):

  – In the case of I. C. Golaknath v. State of Punjab, the Supreme Court ruled that Parliament did not have the authority to amend fundamental rights under Article 368 of the Constitution.

  – This decision implied that fundamental rights were beyond the reach of Parliament’s amending power, effectively eclipsing Article 368 with respect to fundamental rights.

  – The Court held that fundamental rights were sacrosanct and could not be amended to curtail individual liberties.

2. Keshavananda Bharti Case (Removal of Eclipse from Article 368):

  – The landmark case of Keshavananda Bharti v. Union of India overturned the decision in Golaknath.

  – The Supreme Court held that while Parliament could amend fundamental rights under Article 368, it could not alter the basic structure of the Constitution.

  – This decision removed the Eclipse from Article 368 by clarifying that Parliament’s amending power was subject to the Constitution’s basic framework, ensuring that fundamental rights could be amended within these limits.

In Golaknath case initially restricted Parliament’s power to amend fundamental rights, effectively eclipsing Article 368. However, the Keshavananda Bharti case later clarified that while Parliament could amend fundamental rights, it must respect the Constitution’s basic structure. This clarification removed the Eclipse from Article 368 and established the framework for amending fundamental rights within constitutional limits.

DOCTRINE OF SEVERABLITY

The doctrine of severability, also known as the separability doctrine or the severability clause, is a legal principle that addresses the issue of whether a contract or a law can remain valid and enforceable even if certain parts of it are found to be invalid or unconstitutional. The doctrine is based on the idea that if a part of a law is deemed to be invalid, that particular provision can be “severed” or removed, allowing the rest of the law to remain in effect.

In doctrine of severability in constitutional law is used to avoid throwing out an entire law just because one part of it violates the Constitution.

1. Purpose: The main goal of severability is to preserve the parts of a law that are valid and enforceable even if other parts are unconstitutional. This ensures that the law can still be applied effectively without the unconstitutional elements.

2. Application: When a court finds that a specific provision of a law conflicts with the Constitution (such as fundamental rights in India), it doesn’t necessarily mean the entire law is scrapped. Instead, the court examines whether the rest of the law can function independently without the unconstitutional part.

3. Outcome: If the court determines that the valid parts of the law can operate separately from the unconstitutional parts, it will strike down only the unconstitutional provisions. The remaining parts of the law continue to be valid and enforceable.

4. In Indian Context (Article 13): Article 13 of Indian Constitution empowers the courts to declare as void certain laws that violate fundamental rights. The doctrine of severability is applied by the courts to meticulously excise only the offending portion of the law and leave intact the law. In this manner, the legislative intent is respected, and an invalid law can be treated as valid.

Severability is about surgically removing unconstitutional elements from laws while preserving the functional parts, thereby maintaining the law’s overall effectiveness and compliance with constitutional principles.

The doctrine of severability was discussed at length in the case of R.M.D.C v. the State of Bombay, and the court laid down the following principles.

• In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
• In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
• When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the Statute has become unenforceable.
• In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
• There may be instances where the valid and invalid parts are separable and not part of the same scheme, however, invalidating the valid part leaves the rest too thin and truncated, then also it will be invalidated as a whole.
• Severability is to be determined by reading the statute as a whole and not specific provisions or parts.
• In order to find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title and preamble

In Kihoto Hollohon v. Zachillhu, it was contended that the anti-defection law is incompatible with freedom of speech. The Supreme Court held that even on removing para 7 from the 10th Schedule, it remains complete and valid. Since the remaining provisions of the 10th schedule are valid and workable after application of the doctrine.

A.K. Gopalan was detained by the State of Madras under the Preventive Detention Act, 1950. Gopalan challenged his detention, contending that it violated his fundamental rights under Articles 19 and 21 of the Constitution. The Supreme Court, in the case of A.K. Gopalan vs. State of Madras, ruled that the rest of the Preventive Detention Act shall be treated as constitutionally valid except for Section 14. Removing that section, the rest of the Act will remain unaffected and hence has to stand valid and operative.

The doctrine of severability played a crucial role in the Minerva Mills case as the court examined the constitutional validity of various provisions of the 42nd Amendment. The court declared Article 368(4), which sought to exclude the jurisdiction of courts over constitutional amendments, as unconstitutional. It held that judicial review was an essential feature of the basic structure of the Constitution and could not be excluded. The court applied the doctrine of severability to strike down this specific provision while leaving the rest of the 42nd Amendment intact.

Difference Between Doctrine of Eclipse and Doctrine of Severability
Feature	Doctrine of Eclipse	Doctrine of Severability
Meaning	It aims to preserve valid laws even if they contain unconstitutional elements, as long as the core purpose of the law is not defeated.	It allows for the removal of unconstitutional parts from law while keeping the valid portions intact and enforceable.
Goal	Protect Fundamental Rights while minimizing disruption to the existing legal framework.	Preserve legislative intent and validity of the remaining provisions of the law.
Applicability	Pre-Constitutional Laws.	All Laws. (Pre and Post-Constitution)
Judicial Interpretation	Courts may “eclipse” or nullify the unconstitutional parts of a law but preserve the remaining portions if they are separable and the law can still function effectively.	Courts have the power to “sever” or remove the unconstitutional provisions from the law while leaving the rest intact. Thus, assuring the law’s continued operation without violating constitutional rights.
Outcome	Unconstitutional parts of the law are rendered void, ineffective, or “eclipsed,” but the remainder of the law remains legally enforceable.	The unconstitutional provisions are severed, nullified, or “cut out,” leaving the valid portions of the law intact and capable of enforcement.
Examples	If a statute contains provisions that violate Fundamental Rights, such as the right to privacy, the offending parts may be “eclipsed” while the rest of the law remains valid.	A law imposes restrictions on free speech, but certain provisions are found to be unconstitutional. The court may “sever” those provisions while upholding the rest of the law.
Cases	In Bhikaji Narain Dhakras v. State of Madhya Pradesh.	In R.M.D.C. v. Union of India.

CONCLUSION

Moreover, Article 13 of the Constitution of India throws strong protection over the Fundamental Rights. It ordained that laws contravening the Fundamental Rights shall be void in so far as they derogate from these rights. The Doctrine of Eclipse, however, supplements this by dealing with pre-constitutional laws which had been in their original form inconsistent with the Fundamental Rights. This doctrine does not declare such laws null and void but restores them after the inconsistency is removed. Thus, this exercise maintains constitutionalism and harmonizes laws by filling the gap that old and new laws create. It strongly indicates that pre-constitutional laws would acquire validity through an amendment and thus put them at par with their relevancy and utility in Indian jurisprudence.

REFERENCES

1. https://www.studocu.com/in/document/osmaniauniversity/indian-constitutional-law-the-new-challenges/lecture-notes/llb-notesconstitutional-law-complete-units/2971235/view

– (Supreme Court of India 1950).

-Bhikaji v. State of MP (Supreme Court of India 1955).

-Keshava Madhava Menon v. State of Bombay (Supreme Court of India).

-https://lawctopus.com/clatalogue/clat-ug/doctrine-of-severability-under-indian-constitution/

– https://lawnotes.co/doctrine-of-severability/ 

– http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-6.htm  

– https://blog.ipleaders.in/doctrine-of-eclipse-a-comprehensive-analysis/ 

– https://lexlife68840978.wordpress.com/tag/doctrine-of-eclipse/ 

BLOGS REFERRED:

1. BLOG ARCHIVE- CENTRE FOR LAW AND POLICY FRESEARCH

2. THE CRIMINAL AND CONSTITUTIONAL LAW BLOG

3. CONSTITUTIONAL LAW ARCHIVES, SCC BLOG

DOCTRINE OF COLORABLE LEGISLATION

INTRODUCTION

Federalism in the Indian Constitution divides sovereign authority between the central and state governments. This setup aims to facilitate efficient administration and foster national growth. However, conflicts arise when one government oversteps its jurisdiction by passing laws outside its domain or encroaching on another’s authority. This undermines federalism’s essence and risk. The doctrine of colourable legislation aims to prevent the misuse of legislative power by governments. While not explicitly stated in the Indian Constitution, the judiciary has developed and applied this doctrine to uphold the balance of power between the centre and states. It comes into play when either government tries to expand its authority unlawfully.  centralising power, allowing one authority to impose its decisions on others. The doctrine of colourable legislation aims to prevent the misuse of legislative power by governments. While not explicitly stated in the Indian Constitution, the judiciary has developed and applied this doctrine to uphold the balance of power between the centre and states. It comes into play when either government tries to expand its authority unlawfully.

THE DOCTRINE OF COLORABLE LEGISLATION

The doctrine of colorable legislation is a legal principle that aims to prevent excessive and unconstitutional use of the legislative authority of the government. The doctrine is derived from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum, “ meaning things that cannot be done directly should not be done indirectly. This means that when a legislature does not have the power to make laws on a particular subject directly, it cannot make laws on it indirectly. Colourable legislation is one of the doctrines under the Indian Constitution. It means colored legislation, which is not its actual color. So, whenever the Union or state encroaches on their respective legislative competence and makes such laws, colourable legislation comes into the picture to determine legislative accountability of that law. The Black’s Law Dictionary defines the word ‘colourable’ as:

1. Appearing to be accurate, valid or right.
2. Intended to deceive; counterfeit.
3. Appearance, guise or semblance

The doctrine of colorable legislation refers to the practice of a legislative body exceeding its lawful authority by passing laws that appear to be within its jurisdiction but are actually intended to accomplish something outside its constitutional limits or to bypass legal restrictions. This principle aims to prevent misuse of legislative power by ensuring that laws are enacted transparently and within the proper scope of authority defined by the constitution.

Suppose you have a fruit garden and beside that there is a playground. There are truants playing in the playground and every time they throw their ball into your garden and come to take it back, they take some fruits from there as well. But they escape by saying that they had only come to collect the ball. Here, the truants seem to engage in one act under the garb of another as collecting their own balls from the premises is permissible and cannot be prohibited.

 Division of legislative power between the Centre and states

Article 246 of the Indian Constitution delineates the division of legislative powers between the central government (Union) and the state governments. These powers are categorized into three lists: the Union list (List I), the State list (List II), and the Concurrent list (List III).

1. Union List (List I): This list comprises 97 items that cover subjects of national importance such as defense, foreign affairs, currency, atomic energy, etc. The Parliament of India has exclusive authority to legislate on matters listed here.

2. State List (List II): There are 61 items in this list that cover subjects of local or state importance such as police, public health, trade, agriculture, etc. State legislatures have exclusive authority to make laws on these matters.

3. Concurrent List (List III): This list includes 52 items covering subjects of common interest to both the Union and the states, such as education, criminal law, marriage, adoption, etc. Both the Parliament and the state legislatures can enact laws on items listed in this category. However, in case of a conflict between a central law and a state law on a concurrent subject, the central law prevails.

Apart from these three lists, there are also residuary powers vested in the Parliament, which allow it to legislate on matters not mentioned in any of the lists. This includes areas like cyber laws, where the Union government has exclusive authority. It’s essential for both the Union and the states to operate within their respective legislative domains as defined by these lists to maintain the federal structure of governance in India.

         Colorable legislation refers to when a legislature passes a law that appears to be within its authority but is actually beyond its legal powers. This typically happens when the legislature tries to disguise or give a false appearance of legality to a law that it doesn’t have the competence to enact.

For example, if a state legislature passes a law on a subject that only the Parliament has the authority to legislate on (like defense or foreign affairs), it would be considered colourable legislation. This is because the law gives the impression of being valid under the Constitution but is actually invalid because it exceeds the legislature’s jurisdiction.

When the Supreme Court finds that legislation is colourable, it declares the entire law null and void. This is because such legislation undermines the constitutional framework by attempting to circumvent the division of legislative powers between the Union and the states as defined in the Constitution.

In essence, colourable legislation is like a disguise used by the legislature to overstep its legal boundaries, and the judiciary ensures that such laws are struck down to maintain the integrity of the constitutional distribution of powers.

Concerns and limitations on the application of the doctrine of colourable legislation

The doctrine of colourable legislation applies specifically to the question of whether a legislative body has the authority to pass a particular law under the Constitution. It does not apply to subordinate legislation (laws made by authorities under the authority of the legislature). 

1. Scope: It deals only with whether the legislature has the constitutional competence (authority) to enact a law on a specific subject. It does not consider the intentions (whether good or bad) behind the legislation.

2. Presumption: There is a presumption that laws passed by the legislature are constitutional. The burden of proof lies on the party challenging the law to demonstrate that it exceeds the legislature’s authority.

3. Limitations: The doctrine does not apply when there are no constitutional restrictions or limits on the legislature’s powers. For example, if a law falls clearly within the subjects allotted to a legislature by the Constitution, colourable legislation does not come into play.

4. Intentions: It is not concerned with whether the legislature had good or bad intentions in passing the law. Instead, it focuses solely on whether the law falls within the legislative competence as defined by the Constitution.

5. Relevance: The doctrine disregards whether the law is relevant or irrelevant; if it exceeds the constitutional competence of the legislature, its relevance becomes moot.

In essence, the doctrine of colourable legislation ensures that legislative bodies stay within their constitutional boundaries when making laws. It upholds the principle that laws must align with the powers granted to each level of government under the Constitution, ensuring the legality and validity of enacted statutes.

CASE LAWS

In the case of Ram Krishna Dalmia v. S.R. Tendolkar, the petitioner challenged Section 3 of the Commission of Enquiry Act, 1952, and the notification appointing an enquiry commission by the Central Government. The petitioner argued that this action violated the principle of equality under Article 14 of the Constitution because the commission was investigating the petitioner’s company.

However, the Supreme Court ruled that the Act and the notification were valid. It emphasized that the commission was appointed only for inquiry purposes and did not represent dictatorial control by the government. The petitioner failed to prove any discrimination against them.

The court highlighted that in cases like this, the burden of proof lies with the person claiming a violation of constitutional principles. It also underscored the importance of reasonable classification under Article 14, which requires laws to be reasonable and ensure equal protection to all under the law.

Ultimately, the case did not fall under the concept of colourable legislation because the issue was about the reasonableness of the law and its application, rather than a challenge to the legislative competence of the government to enact such laws. The court upheld the validity of the Act and the commission’s appointment under it.

In the case of K.C. Gajapati Narayan Deo v. State of Orissa, the validity of the Orissa Agricultural Income Tax (Amendment) Act, 1950 was challenged on the grounds that it was a colourable piece of legislation. The argument was that the true intention behind the law was to reduce the net income of intermediaries, thereby keeping compensation payments low under the Orissa Estate Abolition Act, 1952.

However, the Supreme Court ruled that for legislation to be considered colourable, it must be shown that the real objective cannot be achieved due to constitutional restrictions or that it encroaches into an area exclusively within the jurisdiction of another legislature. In this case, agriculture falls under the State List of the Constitution, giving state legislatures the authority to legislate on agricultural matters.

The Court determined that the reduction of compensation payments was merely a consequence of the Orissa Agricultural Income Tax (Amendment) Act, 1950, and that it fell within the legitimate scope of the state legislature’s powers. Therefore, the Act was not deemed colourable legislation and was upheld as valid.

The Supreme Court held that since agriculture is a state subject and the reduction of compensation payments was a valid aspect of the state’s legislative action, the law was not an improper attempt to overstep constitutional limits or disguise its true purpose.

In the case of State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was introduced to abolish the landlord system in the state. One of the provisions of the Act involved providing compensation to landlords, which raised a question about whether it served a public purpose.

The Supreme Court reviewed the Act and concluded that instead of genuinely addressing compensation for landlords, it indirectly deprived them of their property rights without fair compensation. The Act purported to establish principles for compensation but effectively prevented landlords from claiming adequate compensation.

As a result, the Court ruled that the Bihar Land Reforms Act, 1950 amounted to colourable legislation. This means it disguised its true purpose—depriving landlords of their property rights—under the guise of setting compensation principles. The Court held the Act invalid because it violated constitutional principles regarding property rights and fair compensation.

The Supreme Court found that the Act was not genuinely aimed at determining fair compensation but rather aimed to strip landlords of their property rights without proper compensation, which led to its invalidation.

In the case of K.T. Moopil Nair v. State of Kerala, the petitioner owned a large forest land but faced severe financial hardship due to government actions. The Preservation of Private Forest Act, 1949 significantly reduced the petitioner’s income. Subsequently, the Travancore-Cochin Land Tax Act, 1955 was enacted, imposing a hefty tax burden of Rs. 50,000 per year on the petitioner’s land, despite their income being only Rs. 3,100 annually.

Section 4 of the Act imposed a tax of Rs. 2 per acre, leading to an excessive tax liability compared to the petitioner’s income. Section 7 exempted certain types of land from the tax, creating unequal treatment. Later, an amendment introduced Section 5A, which allowed for provisional assessment of taxes without conducting surveys or fixing deadlines.

The Supreme Court ruled that Sections 4 and 7 of the Travancore-Cochin Land Tax Act, 1955 violated Articles 14 (equality before law) and 19(1)(f) (right to acquire, hold, and dispose of property) of the Indian Constitution. The Act purported to be a taxing legislation but was actually confiscatory in nature because it imposed taxes far beyond what the petitioner could reasonably bear, considering their income from the land.

The Court held the Act invalid because it unfairly burdened the petitioner with taxes that were unjustifiably high relative to their income, thus violating their constitutional rights to equality and property.

CONCLUSION

The doctrine of colourable legislation serves as a check on legislative bodies to ensure they only enact laws within their authorized powers. It prevents them from indirectly exceeding their constitutional limits by disguising laws under a guise that appears permissible but isn’t. If a legislature tries to pass a law on a subject beyond its jurisdiction, the law can be declared invalid as ultra vires, meaning beyond its legal authority.

This doctrine focuses solely on whether the legislature has the competence to make a law on a particular matter as per the Constitution. It does not consider the intentions behind the law (whether good or bad) or its practical necessity. This can sometimes restrict legislative authority from overstepping its boundaries and ensures that laws are enacted according to the constitutional framework.

However, because it does not address the motives behind legislation, it may sometimes hinder the legislative process. Nevertheless, it remains an essential tool to uphold the division of powers and maintain the integrity of constitutional principles in lawmaking.