Constitutional interpretation refers to the theories and methods politicians, political scientists, public servants, and others use to assign meaning to the constitution. There are many different political theories used in constitutional interpretation. Therefore, the same phrase in a constitutional document can mean a myriad of things depending on how it is interpreted. Constitutional interpretation allows individuals to justify their actions based on the constitution of a state and therefore legitimize their policy decisions. 

Constitutional interpretation is usually assumed to be a particular kind of legislative interpretation, particularly  because constitutions have characteristics of their own, yet legislative interpretation all the same, because constitutions are written laws enacted by a (supreme) political authority. Any theory of constitutional interpretation must start from the fact that we have a written Constitution. Why is the written Constitution treated as binding? Because, as Chief Justice Marshall asserted in Marbury v. Madison (1803), it is the supreme law of the land and because since 1789 public institutions and the citizenry have treated it as an authoritative legal document. It is no exaggeration to say that the written Constitution lies at the core of the American "civil religion".

Interpretation of constitution: The process of explaining the meaning of constitution by knowing its objectives, values and beliefs. Courts have the responsibility to interpret the law in order to decide between the guilty and not guilty. However, the literal meaning may not always be sufficient to solve the case and sometimes things need to go beyond its literal meaning. Thomas Jefferson had once said that “the constitution is like a wax in the hand of the judiciary, which they may twist and shape into any form they please.” The constitution of India as the preamble suggest is the constitution which the people have given to themselves who is the beneficiary of its provisions.[3] A perfect analogy has been given by Churchill: “A little man with a little pencil with a little ballot to vote should never be neglected. It is the responsibility of the judiciary to apply its mind while interpreting any provision in question which affects the individual dignity in any manner. The interpretation by the Judges in an innovative manner has to be continued keeping in mind the historical growth of the constitution of India.


Phases of Constitutional interpretation
There seems to be no single “correct” way to understand a document. Two people may read a political item in the newspaper and interpret it differently based on their unique perspectives, experience and so on. Similarly, different judges on the court have interpreted the constitution’s provision differently.

1. The first phase where it was interpreted literally.
2. The second phase where the court began to scrutinize all possible methods of interpretation as a result of which the basic structure doctrine came into existence.
3. The third phase can be considered as a phase of electicism where the decision by the apex court were based on fairness.
4. The fourth phase is the current one where the court has begun to interpret the provision in a transformative manner.

Doctrine of Harmonious Construction

The objective of harmonious construction is to avoid any confrontation between two enacting provisions of a statute and to construe the provisions in such a way so that they exist in harmony. The basis of this rule is that the legislature never envisages to provide two conflicting provisions in a statute, for the reason that it amounts to self-contradiction. The real legislative intent, the one we try to discover in the process of interpretation cannot be to provide for something in one provision and deny the same in subsequent one. Hence, even if an inconsistency is found, the same should be considered to be unintentional and as such, is required to be cured by way of harmonious construction.

 
The Doctrine of Harmonious Construction is considered as the thumb rule to the Rules of Interpretation of Statutes.
The Doctrine states:
"Whenever there is a case of conflict between two or more Statutes or between two or more parts or provisions of a Statute, then the Statute has to be interpreted upon harmonious construction. It signifies that in case of inconsistencies, proper harmonization is to be done between the conflicting parts so that one part does not defeat the purpose of another."

The Doctrine of Harmonious Construction is based on a cardinal principle in law that every statute has been formulated with a specific purpose and intention and thereby should be read as a whole. The normal presumption is that what the parliament has given by one hand is not sought to be taken away from another. The essence is to give effect to both the provisions. To avoid conflict, the adopted Interpretation of the Statute should be consistent with all its provisions.

 
Doctrine of Pith and Substance

The meaning of Pith is the true nature or essence of something, and substance means the most important or essential part of something. In countries that exercise federalism, the power of making law is divided into different levels; usually the three: central, state and local level. They all have certain boundaries of making laws. When one level makes laws on the subject whose jurisdiction seems to fall in another level then there arises the question of validity of the law. In this case, the court observes the true nature and essential part of the law which it falls under and decides its validity.

 
This doctrine highlights or focuses upon the true nature and characteristic of law. The doctrine signifies that it is the real subject matter which is to be challenged and not its incidental effects on another field. The application of this doctrine can be illustrated through Article 246 of the of the Indian Constitution which enumerates the legislative competency mentioned in the lists under the seventh schedule. It is pertinent to the fact that the legislature will make laws on the subject matter enshrined under the lists, but there might be incidental trespass by the legislature which ultimately result in the declaration of that specific law as ultra vires. The rationale behind this doctrine is that the central and state legislature at any point of time trespass the field protected for each other.

The Supreme Court for the first time applied this doctrine and upheld the same in State of Bombay v. F.N.Balsara. In brief, the facts of the case being that the State of Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay Prohibition Act and the same was challenged with the rationale that it was an interference on the act of importing and exporting of the liquor through the borders. The apex court held that the impugned legislation was in pith and substance, a state subject even though it incidentally encroached subject enumerated in List I. The rationale and the spirit behind being that every law will be declared invalid by citing the reason of being in conflict with the subject matter mentioned in another list.

 
Theory of direct and inevitable effect of fundamental rights

It states that no organs or officials of government should prohibit anything that is directly associated with the enforcement of fundamental rights. A constitution cannot accommodate every right associated with the fundamental rights of citizens, therefore, while interpreting the fundamental rights, the courts must make liberal and detailed explanation on it. The theory states that all the other rights having direct and inevitable relations with fundamental rights should be interpret as a fundamental right. A number of time,  courts have preserved the FR of citizens by declaring such law as void.

Indian SC, in the case of Maneka Gandhi vs Union of India, has interpreted that the decision of the government to seize the passport curtails the personal liberty of citizens and thus declared the act of seizing the passport void.

The similar interpretation is also made by the SC of Nepal in the case of Rabindra Nath Sharma vs. His Majesty Government of Nepal, the court held that the act of stopping the petitioner from going abroad is illegal.

 
Doctrine of Fraud on Constitution

Fraud on constitution means the misinterpretation of words of constitution against the meaning and intention of it for their greedy intention. When the enforcement of constitution is done by misinterpretation of preamble, Article and sub-article of constitution is made against the spirit of the constitution is fraud on constitution.

When the implementation of a constitution is attempted with misinterpretation of values, spirit and intent of it, then the objective of the framers of the constitution cannot be achieved.

The executive and legislative body of government should perform their constitutional duties or exercise their law making right in accordance with the spirit of the constitution. In the context of Nepal, it is seen that the legislature and executive bodies of government have time to time made such fraud of the constitution.

The action of ex-king Gyanendra Shah to dissolve the council of ministers and take all the executive power in his hand by misinterpretation of Article 27 of the Constitution of Kingdom of Nepal is also a fraud upon constitution. The Supreme Court has declared this fraud act as void in the case of Rajib Parajuli v. RCCC.



Doctrine of Severability

The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.  It is a check on the unfettered powers of the legislature which if left on its own has the capability of going rogue and invading the very basic rights guaranteed to individuals. The doctrine of severability opens up the way for the applicability of judicial review. The courts through judicial review invalidate the laws which infringe upon the fundamental rights of individuals. When an individual contends that a particular legislation is taking away his/her fundamental rights, and invokes the Court’s right to judicially review that decision, the burden of proof lies on him/her for proving how the impugned legislation has interfered with his/her rights.

 
Doctrine of Political Question

The political question doctrine refers to disputes that courts determine are best resolved by the politically accountable branches of government: the president and Congress. The traditional expression of the doctrine refers to cases that courts will not resolve because they involve questions about the judgment of actors in the executive or legislative branches and not the authority of those actors. For example, cases involving foreign policy or impeachment often raise political question concerns. Drawing lines between regular cases and political questions has been difficult over the course of American history because of differing opinions about the separation of powers among the branches of the federal government.

According to Jared P. Cole, writing for the Congressional Research Service, the foundation of the political question doctrine is disputed. One theory argues that the Constitution of the United States sets the bounds of the doctrine when it gives responsibility to resolve certain questions to Congress or the president. Another theory states that prudential reasons allow courts to decline to adjudicate certain questions. Cole says that the U.S. Supreme Court has relied on both constitutional and prudential factors in various cases that touch on the political question doctrine.

A note from the Harvard Law Review says that the political question doctrine combined with early notions of judicial review to solidify the place of the courts in the American constitutional system: 

Judges had to respect the Constitution above all else, and therefore could not sanction its violation by Congress or the President. But they could not allow private citizens to litigate against constitutionally delegated political discretion either. Accordingly, political question doctrine as understood in the early republic sought to identify cases that implicitly or explicitly challenged the judgment, rather than the authority, of federal officials

Doctrine of Colorable Legislation
The doctrine of colorable legislation is based on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means that what cannot be done directly, should also not be done indirectly. It checks the competency of the legislature to enact the law. The doctrine of colorability is the idea that when the legislature wants to do something that it cannot do within the constraints of the constitution, it colors the law with substitute purpose which will still allow it to accomplish its original goal.

The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it can do it directly. Thus, it refers to the competency of the legislature to enact a particular law. If the impugned legislation falls within the competence of the legislature, the question of doubt something indirectly which cannot be dine directly doesn’t arise. The doctrine is used in the cases to determine questions of competency to enact a law when a legislature oversteps its conferred power and legislate upon something indirectly which it can’t do in a direct manner.

 
Limitations 

1. The doctrine doesn’t extend to subordinate legislation either.

2. Colorable law theory doesn’t require any doubt on the part of the legislature about bona fides or mala fides. The whole theory transforms itself into a single legislature’s question of ability to pass a particular law. 

3. The doctrine has no effect where any constitutional restriction doesn’t fetter the powers of a legislature.

4. When discussed above, the legislature’s transgression of constitutional power may be proprietary, manifest of actual, but may also be veiled, concealed and indirect, and the term “Colorable legislation” applies only to this latter class of situations.

 
Principles

1. It can be distinguished as a fraud on the constitution because legislation cannot violate a law through an indirect method. (K.C.G. Narayan Deo Vs State of Orissa)
 
2. Colorability is bound with incompetency and not with any evil and bad motive, if the legislature has the power to make the laws, then the motive in making the law is irrelevant. (Nageshwar v. A.P.S.R.T Corp.)
 
3. If something is colorable in appearance only but not in reality then the court looks into the true nature of the legislation and in that case it focuses on the object as the purpose is relevant and not the motive. (Jalan Trading Vs. Mill Mazdoor Sabha)
 
4. The expediency, necessity and propriety of a legislation act are for the determination of the legislative authority not for the determination by the courts. (T. Venkaia Reddy v. State of A.P.)

5. If the legislature is competent to do a thing directly then the fact that it attempted to do it indirectly or in a disguised manner can't make the respective Act invalid. (K.C Gajapati Narayan Deo vs. State of Orissa)
 
GENESIS OF THE DOCTRINE OF COLORABLE LEGISLATION 

The Black's Law Dictionary defines “color” as

1. Appearing to be true, valid, or right.

 2. Intended to deceive; counterfeit.

 3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of the doctrine of the colorable legislation is that under the powers of power's "color" or "guise" The legislature cannot strive to accomplish another goal if it has been granted for one reason only. It is then ineligible to legislate on a purpose for which it is not otherwise competent. The theory is utilized in instances to assess problems of competency to pass legislation when a legislature exceeds its granted jurisdiction and indirectly legislates on something it cannot directly legislate on. This doctrine is also known as the “fraud on the constitution,” because when the legislatures validate an impugned law that is not covered by the subject matter power of the legislatures to enact such a law, which is granted to them by the provisions of the constitution in article 246, it is substantially evident that such laws are clearly in violation of the constitution ad such ratified laws may be declared invalid. 

A case study

On June 10, a five-judge Constitutional Bench of the Supreme Court delivered an interim order in Borna Bahadur v. Prime Minister  & Council of Ministers that will have direct bearing on the functionality of the democratic government in Nepal for the days to come. The issue before the court concerned the authority of the executive branch of the government to make laws using ordinances. Since April 2020, Prime Minister KP Sharma Oli has issued a series of ordinances, many of which were re-promulgated, instead of being presented before Parliament. In essence, by subverting and evading Parliament, Oli has usurped the people’s power and is effectively ruling the country by dicta, reminiscent of the despotic Rana regime. In the June 10 interim order, the bench, consisting of Chief Justice Cholendra Rana, Justices Deepak Kumar Karki, Meera Khadka, Hari Krishna Karki, and Ishwar Prashad Khatiwada, pronounced that the power to issue an ordinance was contingent on an situation that renders it necessary to take immediate action.

In its ruling, the Supreme Court first dissected Article 114 of the constitution and elucidated the conditions and limitations of the power to issue ordinances. The constitutional bench stated that powers to make laws rest with the legislature, and that it is only within a limited framework, when both Houses of federal Parliament are not in session and the situation renders an immediate need, that the executive has the right to issue an ordinance. The court stated that any ordinance intended to bypass Parliament would constitute ‘colorable legislation’ which cannot be said to be valid law.

After analyzing facts and evidence, the court opined that as the Citizenship Act is already in place and its amendments have been pending for over three years in Parliament, the circumstances cannot be said to be surmised to have necessitated ‘immediate’ action. Furthermore, the court stated that the power to promulgate ordinances should not encroach on the authority of the legislature to fulfill vested political interests. 

The court found the Oli Cabinet’s actions to be insincere and disingenuous. As Oli had promulgated the citizenship ordinance a day after the dissolution of the House, his actions were not a routine exercise of power but clearly contradictory to the rule of law and the doctrine of separation of powers and checks and balances set forth by the constitution.

Conclusion
The Constitution disseminates administrative forces between the Parliament and State Legislatures, and each needs to act inside its circle. In regard of the specific legislations, the inquiry might emerge whether the governing body has violated the limits imposed on it by the constitution. Such offense might be patent, show or direct, however it might likewise be masked, indirect or covert. It is to this last class of cases that the expression Colorable legislation.

The Doctrine of Colorable legislation comes to rescue to deal with covert, disguised and indirect violation scenarios. The basic thought is that although obviously, a lawmaking body in passing a resolution suspected to act inside the restrictions of its forces, yet in substance and as a general rule it violated these forces, the offense being hidden by what shows up, on legitimate assessment, to be simple affectation or mask. In case that is thus, the legislature being referred to is invalid.