Improper Purpose and Colourable Exercise of Power
Chapter Fifty-Eight
Syllabus topic 4, "Grounds of Review"
Pages 176 to 178 of 430
In one line
A power given for one purpose and used for another is void, and nobody has to be dishonest for that to be true.
In the wording a student can write in an exam: improper purpose, also called the doctrine of extraneous purpose or detournement de pouvoir, means the use of a statutory power for an object other than that for which it was conferred; a colourable exercise of power is the use of a power which is apparently within the authority's competence but which in substance achieves something the authority could not do directly.
Why this is the most useful ground in the group
Because it does the work of mala fides without the burden of proving dishonesty. A court which will not say that an officer acted corruptly will readily say that a power to acquire land for a public purpose was used to acquire a particular man's land because of a dispute with him. The finding is about the object, not about the state of mind.
How the purpose is found
From the statute. The preamble, the long title, the scheme and the section itself. This is Lord Reid's method in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997: the policy and objects of the Act are found by construing the Act as a whole, and construction is a matter of law for the court.
From the order and the file. The reason recorded, the note sheet, the sequence of events.
From the effect. Where the effect of the order is to achieve something the Act does not contemplate, and no other explanation is offered.
Mixed purposes
An order is often made for two purposes, one proper and one not. The courts have used several tests, and the one most often applied is the dominant purpose test: if the improper purpose was the dominant one, or if the order would not have been made but for it, the order falls. Where the proper purpose alone would have produced the same order, it stands.
Colourable exercise
The phrase means that the power is exercised in a form which appears lawful but which in substance is a device. The doctrine is expressed in the maxim that what cannot be done directly cannot be done indirectly. In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, the Court considered the argument of colourable legislation and said that the question is in substance one of legislative competence, and that a legislature cannot overstep the field of its competence directly or indirectly; while if it has the power to make the law, its motive in making it is irrelevant.
That last sentence is the key distinction for an answer: motive is irrelevant to legislation but relevant to administration, because an administrative power has a stated purpose and a legislative power does not.
Improper Purpose and Colourable Exercise of Power
A worked example
A municipal Act empowers a commissioner to close a road temporarily for repairs. He closes the road in front of a market which competes with a market the corporation owns, and the file shows a note from the standing committee about falling revenue at the corporation's own market and no engineering report at all.
Improper purpose is made out. The power exists for repairs and was used to divert custom. Nobody needs to be shown to be dishonest, and the commissioner may honestly have thought he was helping the corporation's finances. It is also a colourable exercise, because the corporation cannot lawfully close a competitor's approach road and has done so under cover of a repair power. And it is malice in law on S.R. Venkataraman, because there was no engineering material at all.
Distinctions that carry marks
| Improper purpose | Mala fides | Irrelevant considerations | |
|---|---|---|---|
| What is wrong | The object pursued | The motive | The material relied on |
| Dishonesty needed | No | For malice in fact, yes | No |
| How proved | The statute's purpose against the actual object | Particulars and the file | The reasons recorded and the file |
| Overlap | Very large | Very large | Very large |
What this does NOT mean
It does not mean an authority may pursue only one purpose. An Act with several objects permits action for any of them.
It does not mean a good result cures a bad purpose. The order falls even if the same order could lawfully have been made for a proper reason, unless the proper purpose was the dominant one.
It does not apply to legislation in the same way. A legislature's motive is irrelevant if it has the competence, which is the Gullapalli point.
Quick revision
Improper purpose is the use of a power for an object other than the one for which it was given. The purpose is found from the Act on Padfield's method, from the file, and from the effect. Where purposes are mixed, the dominant purpose test decides. Colourable exercise is a device: what cannot be done directly cannot be done indirectly, and Gullapalli separates the position for legislation, where competence decides and motive is irrelevant. The ground overlaps mala fides and irrelevant considerations, and needs no proof of dishonesty.
Test yourself
1. Why is improper purpose more useful to a petitioner than mala fides? Because it requires no proof of a bad motive; the question is what object was pursued, which can be shown from the statute, the file and the effect of the order.
Improper Purpose and Colourable Exercise of Power
2. What is the dominant purpose test? Where an order is made for both a proper and an improper purpose, it falls if the improper purpose was dominant or if the order would not have been made but for it.
3. Why is a legislature's motive irrelevant? Because a legislative power is plenary within its field: if the legislature has competence, the court asks what the law does and not why it was passed, which is the reasoning in Gullapalli on colourable legislation.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.