The Common Law in India - College of Social Sciences and ...

The Indian Constitution 183This vital difference between the powers of theBritish Parliament and the Parliament of the Unionof India has been thus explained by the SupremeCourt of India. " A distinction, however, existsbetween a legislature which is legally omnipotent likethe British Parliament and the laws promulgated bywhich could not be challenged on the ground ofincompetency, and a legislature which enjoys only alimited or a qualified jurisdiction. If the constitutionof a state distributes the legislative powers amongstdifferent bodies, which have to act within their respectivespheres marked out by specific legislativeentries, or if there are limitations on the legislativeauthority in the shape of fundamental rights,questions do arise as to whether the legislature ina particular case has or has not, in respect of thesubject-matter of the statute or in the method ofenacting it, transgressed the limits of its constitutionalpowers." "Therefore, when a Parliament with limited powerslike the Indian Parliament legislates, frequently thelegislation has to be closely examined in order todetermine whether Parliament has exceeded its powersin enacting it. The transgression of its powers " maybe patent, manifest or direct, but it may also bedisguised, covert and indirect." Legislation by whichParliament has exceeded its powers in a covert orindirect manner has been described as " colourablelegislation" by some judges. The idea conveyedby the expression is that although apparently a" K. C. Gajapati Narayan Deo v. State of Orissa (1954) S.C.K.1, p. 11.