Jurisprudence - Legal Rights and Duties

Jurisprudence - Legal Rights and Duties

Definition, Basis and Characteristics & Types of Legal Rights

by : 
Vijay Sardana
Advocate, Delhi High Court

Rights: Meaning, Features and Types of Rights

Rights are those essential conditions of social life without which no person can generally realize his best self. These are the essential conditions for the health of both the individual and his society. It is only when people get and enjoy rights that they can develop their personalities and contributes their best services to society.

Rights: Meaning and Definition:

In simple words, rights are the common claims of people which every civilized society recognizes as essential claims for their development, and which are therefore enforced by the state.

1. “Rights are those conditions of social life without which no man can seek in general, to be himself at his best.” -Laski

2. “Rights are powers necessary for the fulfilment of man’s vocation as a moral being.” -T. H. Green

3. “Rights are nothing more nor less than those social conditions which are necessary or favourable to the development of personality” -Beni Prasad

As such, Rights are common and recognized claims of the people which are essential for their development as human beings.

Features/Nature of Rights:

1. Rights exist only in society. These are the products of social living.

2. Rights are claims of the individuals for their development in society.

3. Rights are recognized by the society as common claims of all the people.

4. Rights are rational and moral claims that the people make on their society.

5. Since rights in here only in society, these cannot be exercised against the society.

6. Rights are to be exercised by the people for their development which really means their development in society by the promotion of social good. Rights can never be exercised against social good.

7. Rights are equally available to all the people.

8. The contents of rights keep on changing with the passage of time.

9. Rights are not absolute. These always bear limitations deemed essential for maintaining public health, security, order and morality.

10. Rights are inseparably related with duties. There is a close relationship between them “No Duties Ho Rights. No Rights No Duties.” “If I have rights it is my duty to respect the rights others in society”.

11. Rights need enforcement and only then these can be really used by the people. These are protected and enforced by the laws of the state. It is the duty of a state to protect the rights of the people.

All these features clearly bring out the nature of Rights.

Types of Rights:

1. Natural Rights:

Faith in natural rights is strongly expressed by several scholars. They hold that people inherit several rights from nature. Before they came to live in society and state, they used to live in a state of nature. In it, they enjoyed certain natural rights, like the right to life, right to liberty and right to property. Natural rights are parts of human nature and reason.

However, several other scholars regard the concept of natural rights as imaginary. Rights are the products of social living. These can be used only in a society. Rights have behind them the recognition of society as common claims for development, and that is why the state protects these rights.

2. Moral Rights:

Moral Rights are those rights which are based on human consciousness. They are backed by moral force of human mind. These are based on human sense of goodness and justice. These are not backed by the force of law. Sense of goodness and public opinion are the sanctions behind moral rights.

If any person violates any moral right, no legal action can be taken against him. The state does not enforce these rights. Its courts do not recognize these rights. Moral Rights include rules of good conduct, courtesy and of moral behaviour. These stands for moral perfection of the people

3. Legal Rights.

Legal rights are those rights which are recognized and enforced by the state. Any violation of any legal right is punished by law. Law courts of the state enforce legal rights. These rights can be enforced against individuals and also against the government. In this way, legal rights are different from moral rights. Legal rights are equally available to all the citizens. All citizens enjoy legal rights without any discrimination. They can go to the courts for getting their legal rights enforced.

Legal Rights are of three types:

1.      Civil Rights:

Civil rights are those rights which provide opportunity to each person to lead a civilized social life. These fulfill basic needs of human life in society. Right to life, liberty and equality are civil rights. Civil rights are protected by the state.

2.      Political Rights:

Political rights are those rights by virtue of which citizens get a share in the political process. These enable them to take an active part in the political process. These rights include right to vote, right to get elected, right to hold public office and right to criticise and oppose the government. Political rights are really available to the people in a democratic state.

3.      Economic Rights:

Economic rights are those rights which provide economic security to the people. These enable all citizens to make proper use of their civil and political rights. The basic needs of every person are related to his food, clothing, shelter, medical treatment etc. Without the fulfillment of these no person can really enjoy his civil and political rights. It is therefore essential, that every person must get the right to work, right to adequate wages, right to leisure and rest, and right to social security in case of illness, physical disability and old age.

Kinds of Legal Rights

The term 'Right' in ordinary sense, means, " the standard of permitted action within a certain sphere . It means the standard of permitted actions by law, such permitted action of a person is known as his legal right. Any action of a person permitted by law is called 'right' similarly , the expression 'legal right' means " the standard of permitted action by law.

A legal right may be distinguished from a moral or natural right. Legal right is an interest recognized and protected by law.  In short legal rights are legally protected interest. If any person violate the legal right it would be a legal wrong, and for such legal wrong there is legal remedy.

Legal Rights may be classified under following heads :

1) Right in Rem and Right in Persona -

'Rem' means world and 'Persona' means persons. The Right in Rem is the right available against the whole world while right in Persona is the right against a particular person. Right in Persona generally arises out of contractual obligations for example - breach of contract. Whereas right in rem is generally outcome of law.

For example - Tort, Crime.

Right in Persona is generally transitory in nature, which can be transferred in right in rem. Right in rem is a final thing, whereas right in Persona is transitory in nature.

2) Personal and Proprietary Right -

Personal right is in respect of person of owner of right whereas Proprietary right is in respect of property of which the person is an owner. Proprietary Rights are those, which constitute a man's property or wealth. These are the rights, which possess some economic or monetary value and constitute the estate of the Person. Right to land, debts and Goodwill or patent rights are all Proprietary right.

Personal right includes right to safety, to repetition Personal rights are also important like Proprietary right. For example - right to reputation.  Personal Rights is having no economic value. They relate to Person's well-being or status.

3) Positive and Negative Rights -

Positive rights have corresponding Positive duty. Positive right therefore the right when some positive act is required to be done by the person who has the corresponding duty. Thus the person on whom such duty lies must do some positive act.

While on the other hand negative rights are those rights when some negative act by way of omission is required. Negative rights correspond to negative duty, and the person on whom such negative duty lies shall omit (not to do) such act.

4) Principal and Accessory rights -

The principal right is a basic or main right vested in Persona under law. They are Vital and important Rights. While accessory right is incidental or consequential right. They are not essential but are apparent to the more basic general right.

5) Perfect and Imperfect Rights –

Perfect right corresponds with perfect duty. Perfect rights are recognized and also enforced by law and an action can be taken against the wrongdoer by filing a suit in Court of Law for the breach of it.

While Imperfect right corresponds with Imperfect duty, which are not recognized by law and hence cannot be enforced by law.

For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect right to recover loan from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'.

If 'B' failed, then 'A' can file Suit against him in court of law for recovery of loan. But if it is time-barred loan, for example no suit filed within the limitation period (within 3 years) and 'A' was sleeping over his right for a pretty long time. 'A' can claim for the same as it becomes imperfect right which cannot be enforced by law.

6) Right in Re-proporia and Right in Re-aliena -

Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia contemplates absolute ownership. Thus it is the outcome of jurisprudence aspect of ownership.

Whereas right in Re-aliena, is the right in respect of property of another person. Right in Re-aliena is the outcome of jurisprudence aspect of dominant heritage and servient heritage. For example - right of easement.

7) Vested and Contingent Right -

Vested and Contingent rights are depending on the relationship as to owner of right and right itself. Vested right means which is already vested in person, the person already has such right through it depends upon the happening of certain events, that event is going to happen. (See also... Vested interest)

Whereas is in Contingent interest the right is dependent upon happening or non-happening of certain events which may or may not happen.

(See also.. Difference between vested interest and contingent interest)

8) Legal and Equitable Right -

Legal rights are the rights given by common law Courts of England. Common law was based on statute by way of custom, usage. Equitable rights are the outcome of law of equity given by the court of chancellor, or equity Court based on principle of natural justice and conscience of Lord Chancellor.

By Judicature Act 1873, 1875 both systems are unified, but as per J. Snell 'Both the systems flow in one stream but their water does not mix.'

After the unification of the both these systems English law came into existence. But still there are certain principles and rights, which are classified as equitable right and legal right.

9) Corporeal and Incorporeal Right -

Here a fine distinction is made of the subject matter of the right. Corporeal rights are having physical existence. For example - I owned a book, the book has physical existence, so my right in respect of the book, is Corporeal in nature.

Whereas incorporeal rights are those right in respect of such subject matter having no physical existence. For example - copyright of the book or trademark. Both Corporeal Incorporeal rights are legally protected rights.

10) Primary and Sanctioning Right -

Primary right is basic right. It is independent Right. These are the right ipso facto. for example - Right in rem; Right to reputation, Right to satisfy is the primary right. If right of reputation is violated then there is legal remedy. in Tort or in Crime. There is force behind it.

Sanctioning rights are the consequential rights. They are not right ipso facto. They are right in Persona, which originate from some wrong. For example - from violation of another right. Thus, Sanctioning Right is supporting right to primary right.

11) Public and Private Rights -

Public Rights are those Vested in by state. For example - right to use High-way, right to vote etc.

A private Right is one which is exercised by an individual to protect his benefit.

Relation between Rights and Duties!

1. Rights and Duties always go together:

Rights and duties are closely related and cannot be separated from one another. Both go side by side. These are the two sides of the same coin. If the state gives the right to life to a citizen, it also imposes an obligation on him to not to expose his life to dangers, as well as to respect the life of others. If I have a right to work and earn, it is also my duty to recognize the same right of others.

2. Right of One is the Duty of Others:

Rights can be enjoyed only in the world of duties. For every right there is corresponding duty. When the people fail to discharge their duties properly, the rights all become meaningless. “I can enjoy my rights only if the others allow me to do the same. I have” the right to life and it is the duty of others to respect my life and not to cause any harm to me.”

3.Rights of a Citizen also implies Duties for him:

Rights are not the monopoly of a single individual. Everybody gets these equally. This means that “others also have the same rights which I have, and it is my duty to see that others also enjoy their rights.” Laski has rightly said that one man’s right is also his duty. It is my duty to respect the rights of others as well as the duty to use my rights in the interest of society.

4.Rights are to be used for Social Good:

Rights originate in society. Therefore, while enjoying rights, we must always try to promote social interest. It is the duty of every one of us to use our rights for promoting the welfare of the society as a whole.

5. Duty towards the State:

Since state protects and enforces rights, it also becomes the duty of all citizens to be loyal to the state. It is their duty to obey the laws of the state and to pay taxes honestly. Citizens should always be ready to defend the state. Thus a citizen has both Rights and Duties. He enjoys rights and performs his duties. Rights and Duties are the two sides of the same coin.

Constitution of India: Legislative Process under Constitution of India

Constitution of India: Legislative Process

Procedure regarding Enactment of Legislation

By: 
Vijay SARDANA
Advocate, Delhi High Court

Introduction

The basic function of Parliament is to make laws, amend them or repeal them. The process of law-making or the legislative process, in relation to Parliament, may be defined as the process by which a legislative proposal brought before it, is translated into the law of the land.

All legislative proposals are brought before Parliament in the form of Bills. A Bill is a statute in the draft form and cannot become law unless it has received the approval of both the Houses of Parliament and the assent of the President of India.

The process of lawmaking begins with the introduction of a Bill in either House of Parliament. A Bill can be introduced either by a Minister or a Member other than a Minister. In the former case, it is known as a Government Bill and in the latter case, it is known as a Private Member’s Bill.

GOVERNMENT BILLS Notice of Bill

A Minister who desires to introduce a Bill has to give seven days’ notice in writing of his intention to move for leave to introduce the Bill. The Speaker may, however, allow the motion to be moved at a shorter notice.

Circulation of Bill

A Bill is not included in the list of business for introduction until copies thereof have been made available for the use of members at least two days before the day on which the Bill is proposed to be introduced. This requirement of prior circulation, however, does not apply to Appropriation Bills, Finance Bills and such secret Bills as are not included in the list of business. 

The Speaker may, however, permit the introduction of a Bill without prior circulation or after circulation for a period shorter than two days if the Minister concerned gives adequate reasons in a Memorandum for consideration of the Speaker as to why the Bill is proposed to be introduced earlier than two days after circulation of copies or without prior circulation.

Passage of Government Bills

A Bill undergoes three readings in each House, ie., the Lok Sabha and the Rajya Sabha, before it is submitted to the President for assent.

First Reading

The First Reading refers to the motion for leave to introduce a Bill in the House on the adoption of which the Bill is introduced.

In the case of a Bill originated in and passed by Rajya Sabha, the first reading may be said to refer to the laying on the Table of the House of the Bill, as passed by Rajya Sabha.

Procedure regarding opposing the introduction of a Bill 

Motion for leave to introduce a Bill may be opposed by any member on general grounds or on the ground that the Bill initiates legislation outside the legislative competence of the House. Any member desirous of opposing the introduction of a Bill has to give a notice to that effect specifying clearly and precisely the objections to be raised by 1000 hours on the day on which the Bill is included in the list of business for the introduction.

If the motion for leave to introduce a Bill is opposed, the Speaker may allow a brief statement from the member who opposes the motion and the Minister who moved the motion. Thereafter, the motion is put to the vote of the House. However, if the motion is opposed on the ground of legislative competence, the Speaker may permit a full discussion thereon.

It is an accepted practice in Lok Sabha that the Speaker does not give any ruling on the point whether a Bill is constitutionally within the legislative competence of the House or not. The House also does not take a decision on the specific question of vires of a Bill. After debate, the motion for leave to introduce a Bill is put to vote of the House by the Speaker.

Publication of Bills in the Gazette

After a Bill has been introduced, it is published in the Gazette of India.

A Bill may, however, be published in the Gazette of India even before its introduction in the House if on a request made by the Minister-in-charge of the Bill, the Speaker permits such publication. If a Bill has been published in the Gazette before introduction, members cannot, later on, oppose its introduction in the House. 

It is not necessary to move a motion for leave to introduce a Bill which has already been published in the Gazette under the orders of the Speaker. 

The next stage in respect of such a Bill is for introduction as distinct from leave to introduce. 

However, if changes are made in the Bill after it has been published in the Gazette, it becomes a new Bill and the motion for leave to introduce the Bill has to be moved as in the case of any other Bill.

Bills which can be introduced only in Lok Sabha

A Bill may be introduced in either House of Parliament. However, a Money Bill cannot be introduced in Rajya Sabha. It can only be introduced in Lok Sabha with prior recommendation of the President for its introduction in Lok Sabha. 

If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker thereon is final.

Like Money Bills, Bills which, inter alia, contain provisions for any of the matters attracting sub-clauses (a) to (f) of clause (1) of Article 110 can also not be introduced in Rajya Sabha. They can be introduced only in Lok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to such Bills.

Article 110 in The Constitution Of India:

110. Definition of Money Bill

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of money into or the withdrawal of money from any such Fund;

(d) the appropriation of money out of the consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub-clause (a) to (f)

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final

(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under Article 109, and when it is presented to the President for assent under Article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 7]

Reference of Bills to Departmentally Related Standing Committees

One of the important functions of the Departmentally Related Standing Committees is to examine such Bills introduced in either House as are referred to them by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make a report thereon in the given time. Normally, a time period of three months is given to the Committees for the presentation of the report.

As per prevailing practise, normally all Government Bills, except Bills to replace Ordinances, Bills repealing obsolete laws, Appropriation Bills, Finance Bills and Bills of technical or trivial nature, are referred to the concerned Departmentally Related Standing Committees for examination and report.

The reports of the Standing Committees have persuasive value and are treated as considered advice by the Government. In case, the Government accepts any of the recommendations of the Committee, it may bring forward official amendments at the consideration stage of the Bill or may withdraw the Bill reported by the Standing Committee and bring forward a new comprehensive Bill after incorporating such of the recommendations of the Standing Committee as are acceptable to the Government.

Second Reading

The Second Reading of the Bill consists of two stages.

First Stage of Second Reading

The First Stage constitutes discussion on the principles of the Bill and its provisions generally on any of the following motions—that the Bill be taken into consideration; or that the Bill be referred to a Select Committee of the House; or that the Bill be referred to a Joint Committee of the Houses with the concurrence of the other House; or that the Bill be circulated for the purpose of eliciting opinion thereon. A Money Bill, however, cannot be referred to a Joint Committee of the Houses.

At this stage, amendments may also be moved by any member to the motion moved by the Minister as per the provisions of Rule 75 of Rules of Procedure and Conduct of Business in Lok Sabha.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 2]

In the case of a Bill originated in and passed by Rajya Sabha, the motion that the Bill, as passed by Rajya Sabha, be taken into consideration, can only be moved. In this case, any member may, if the Bill has not already been referred to a Joint Committee of both the Houses, move as an amendment that the Bill be referred to a Select Committee of the House.

Bills before a Select/Joint Committee

If a Bill is referred to a Select or a Joint Committee, it considers the Bill clause-by-clause just as the House does. Amendments can be moved to various clauses by the members of the Committee.

A Select Committee or a Joint Committee of both the Houses entrusted with the consideration of a Bill issues a press communique and invites memoranda from the public at large as well as from specialised interest groups to place materials and points of view before the Committee. The Committee may also hear expert evidence and representatives of special interest groups affected by the measure.

Circulation of a Bill for eliciting public opinion

If a Bill is circulated for the purpose of eliciting public opinion thereon, such opinions are obtained through the agency of the State Government.

Where a Bill has been circulated for eliciting opinion and opinions have been received and laid on the Table of the House, the next motion in regard to such a Bill must be for its reference to a Select or a Joint Committee. It is not ordinarily permissible at this stage to move a motion for consideration of the Bill, unless the Speaker allows.

Petitions on Bills before Parliament

The Parliamentary device of petitions on Bills provides a democratic touch to the process of legislation. Petitions from the public on Bills before the Houses are examined by the Committee on Petitions and may be circulated to the members of the House in extenso or in a summary form so that the members may be aware of the public views on a particular legislative proposal.

Second Stage of Second Reading

The Second Stage of the Second Reading consists of clause-by-clause consideration of the Bill, as introduced in Lok Sabha or as reported by a Select or a Joint Committee or as passed by Rajya Sabha, as the case may be. The discussion takes place on each clause of the Bill and amendments can be moved at this stage. Each amendment and each clause is put to the vote of the House. The amendments become part of the Bill if they are accepted by a majority of members present and voting. After the clause(s), the schedules, if any, clause one, the Enacting Formula and the Long Title of the Bill have been adopted with or without amendments by the House, the Second Reading is deemed to be over.

Third Reading

The Third Reading refers to the discussion on the motion that the Bill or the Bill, as amended, be passed. At this stage, the debate is confined to arguments either in support or rejection of the Bill without referring to the details thereof further than is necessary for the purpose of arguments. Only formal, verbal or consequential amendments are allowed at this stage.

Bills in the other House

After a Bill has been passed by Lok Sabha, it is transmitted to the Rajya Sabha for concurrence with a message to that effect. On receipt of the message, the Bill is first laid on the Table of Rajya Sabha, which is deemed as the First Reading stage of the Bill in that House. Thereafter, the Bill again goes through the same stages, viz., the Second Reading stage comprising either the discussion on the motion that the Bill be taken into consideration or its reference to a Select Committee of that House and the Third Reading stage. Rajya Sabha may either agree to the Bill, as passed by Lok Sabha. or return the Bill with amendments to Lok Sabha for its concurrence.

Rajya Sabha is, however, required to return a Money Bill passed and transmitted by Lok Sabha within a period of 14 days from the date of its receipt. Rajya Sabha may return a Money Bill transmitted to it with or without recommendations. It is open to Lok Sabha to accept or reject all or any of the recommendations of Rajya Sabha.

However, if Rajya Sabha does not return a Money Bill within the prescribed period of 14 days, the Bill is deemed to have been passed by both the Houses of Parliament at the expiry of the said period of 14 days in the form in which it was passed by Lok Sabha.

After the Bill has been agreed to by both the Houses, either without amendment or with such amendments only as are agreed to by the House, it is submitted to the President for his assent.

Constitution Amendment Bills

The Constitution vests in Parliament the power to amend the Constitution. Constitution Amendment Bills can be introduced in either House of Parliament. While motions for the introduction of Constitution Amendment Bills are adopted by simple majority, a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting is required for the adoption of effective clauses and motions for consideration and passing of these Bills. Constitution Amendment Bills affecting vital issues as enlisted in the proviso to Article 368(2) of the Constitution, after having been passed by the Houses of Parliament, have also to be ratified by not less than one-half of the State Legislatures.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 8]

Withdrawal of Bills

The Minister-in-charge of a Bill, who has introduced the Bill in Lok Sabha, may at any stage of the Bill move for leave to withdraw the Bill on the ground that:

(a)   the legislative proposal contained in the Bill is to be dropped, or

(b)   the Bill is to be replaced subsequently by a new Bill which substantially alters the provisions contained therein; or

(c)    a Bill is to be replaced subsequently by another Bill which includes all or any of its provisions in addition to other provisions.

and if such leave is granted, no further motion is made with reference to the Bill.

If a Bill passed by Rajya Sabha is pending in Lok Sabha, a motion recommending withdrawal of the Bill, on being adopted by the House, is transmitted to Rajya Sabha for concurrence. If Rajya Sabha concurs in the motion, the motion for withdrawal of the Bill is moved in Lok Sabha and proceeded with in the usual manner and when the motion is adopted, a message to that effect is sent to Rajya Sabha. A similar procedure is followed in Rajya Sabha in the case of a Bill passed by Lok Sabha and pending in Rajya Sabha.

Joint Sitting

If a bill passed by one House is rejected by the other House, or the Houses have finally disagreed as to the amendments to be made in the Bill, or more than six months lapse from the date of receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of a dissolution of Lok Sabha, call a Joint Sitting of the two Houses to resolve the deadlock.

The President, after consultation with the Chairman, Rajya Sabha and the Speaker, Lok Sabha, has made the Houses of Parliament (Joint Sitting and Communications) Rules in terms of clause (3) of Article 118 of the Constitution to regulate the procedure with regard to Joint Sitting of the Houses.

The Bill is deemed to have been passed by both the Houses in the form it is passed by a majority of the total number of members of both the Houses present and voting at the Joint sitting.

There cannot be a joint sitting of both Houses on a Money Bill or a Constitution Amendment Bill.

The Constitution empowers the President to take steps for resolving a deadlock on a Bill between the two Houses but it is not obligatory upon him to summon the Houses to meet at a Joint Sitting. However, once the President has notified his intention to summon the Houses for a Joint Sitting, even the subsequent dissolution of Lok Sabha does not stand in the way of proceeding with the Bill. There is no time limit as to when the Joint Sitting should take place. It may take place at any time subsequent to the notification.

Assent of the President

The Secretariat of the House which is last in possession of a Bill initiates action for obtaining the assent of the President thereon. In the case of a Money Bill or a Bill passed at a joint sitting of the Houses, the Lok Sabha Secretariat obtains the assent of the President. The Bill becomes an Act after the President’s assent has been given.

The President can give his assent or withhold his assent to a Bill. The President can also return the Bill, if it is not a Money Bill, with his recommendations to the Houses for reconsideration, and if the Houses pass the Bill again with or without amendments, the President can not withhold his assent to a such a Bill. The President is bound to give his assent to a Constitution Amendment Bill presented to him for assent.

[Legislative process in regard to Government Bills is governed by various provisions of the Constitution, the Rules of Procedure and Conduct of Business in Lok Sabha and the Directions by the Speaker, which include, inter alia, provisions contained in Articles 107 to 111, 117, 245 to 255 and 274 of the Constitution, Rules 64 to 159, 218, 219, 331E, 331H and 335 of the Rules of Procedure and Directions 19A to 26 and 31 to 37 of the Directions by the Speaker.]

Constitution of India: Doctrine of Colourable Legislation

Doctrine of Colourable Legislation

By: 
Vijay Sardana
Advocate, Delhi High Court

This doctrine is based on the principle that "what cannot be done directly cannot be done indirectly". 

In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. This doctrine is found on the wider doctrine of "fraud on the constitution". A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.

K C Gajapati Narayan Deo vs State of Orissa, AIR 1953 is a famous case that illustrates the applicability of this doctrine. In this case, SC observed that the constitution has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres. These limitations are marked by specific legislatives entries or in some cases these limitations are imposed in the form of fundamental rights of the constitution.

Question may arise whether while enacting any provision such limits have been transgressed or not. Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or indirect. It is to this later class of transgression that the doctrine of colourable legislation applies. In such case, although the legislation purports to act within the limits of its powers, yet in substance and in reality, it transgresses those powers. The transgression is veiled by mere pretense or disguise. But the legislature cannot be allowed to violate the constitutional prohibition by an indirect method. In this case, the validity of Orissa Agricultural Income Tax (Amendment) Act 1950 was in question. The argument was that it was not a bona fide taxation law but a colourable legislation whose main motive was to artificially lower the income of the intermediaries so that the state has to pay less compensation to them under Orissa Estates Abolition Act, 1952. SC held that it was not colourable legislation because the state was well within its power to set the taxes, no matter how unjust it was. The state is also empowered to adopt any method of compensation. The motive of the legislature in enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair vs State of Kerala, AIR 1961. In this case, the state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many times the annual income that the person was earning from the land. The SC held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person's property was being confiscated.

Similarly, in Balaji vs State of Mysore, AIR 1963, SC held that the order reserving 68% of the seats for students belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).