Doctrine of Ultra Vires | Administrative Law - CLAT PG PDF Download

Introduction

• 'Ultra vires' refers to actions taken beyond the legal power or authority granted to an individual or body. It signifies acts performed outside the scope of power, authority, or jurisdiction. An act can be considered 'ultra vires' when it is carried out by someone or a group exceeding their granted power, regardless of whether the act is illegal or not. The core idea is that the act exceeds the limits of power held by the individual or entity.
• Delegated legislation is subject to judicial review. Courts in democratic countries can assess the validity of delegated legislation using two main tests: Substantive ultra vires and Procedural ultra vires.

Substantive Ultra Vires

• Substantive ultra vires occurs when an Act or legislation exceeds the power granted to the Legislature by the Constitution. Similarly, when subordinate legislation goes beyond the authority conferred by the Legislature, it is considered ultra vires. This concept emphasizes that delegated legislation must stay within the limits set by the parent statute or the Constitution.
• A public authority cannot act beyond its legal powers, and this principle is central to administrative law. If an agency operates within its statutory limits (intra vires), its actions are valid; if it exceeds those limits (ultra vires), the actions are invalid.

Circumstances

• Substantive ultra virescould render delegated legislation invalid in several scenarios:
  • Unconstitutionality of the parent Act
  • Delegation of essential legislative functions by the parent Act
  • Inconsistency with general law
  • Unconstitutionality of the delegated legislation
  • Inconsistency with the parent Act
  • Unreasonableness
  • Mala fide (bad faith)
  • Sub-delegation
  • Exclusion of judicial review
  • Retrospective effect
• The validity of delegation depends on the constitutional and legal soundness of the parent Act or enabling statute. If the delegating statute is itself ultra vires the Constitution, any delegated legislation stemming from it is also flawed. For instance, in the Tan Bug Taim v. Collector of Bombay case, the Central Government's rule on requisitioning immovable property was invalidated because the subject was outside the Federal Legislature's jurisdiction.
• In the case of Chintamanrao v. State of M.P., the Deputy Commissioner's order prohibiting bidi manufacturing was deemed ultra vires because the parent Act violated the Fundamental Right to carry on any occupation, trade, or business as guaranteed by the Constitution.

Where Parent Act Delegates Essential Legislative Functions

• It is a well-settled principle of Administrative Law that primary and essential legislative functions must be performed by the Legislature itself and they cannot be delegated to any other organ of the State. To put it differently, under the scheme of our Constitution, a legislature cannot create, constitute or establish a parallel Legislature.

Where Delegated Legislation is Inconsistent with the Parent Act

• The validity of delegated legislation can be challenged on the ground that it is ultra vires the parent Act or enabling statute. It is an accepted principle that delegated authority must be exercised strictly within the authority of law. Delegated legislation can be held valid only if it conforms exactly to the power granted.
• In Indian Council of Legal Aid & Advice v. Bar Council of India, a rule was framed by the Bar Council barring enrolment as advocates of persons who had completed 45 years of age. The parent Act enabled the Bar Council to lay down conditions subject to which an advocate 'shall have right to practice.' Declaring the rule ultra vires, the Supreme Court held that the Bar Council can make the rule only after a person is enrolled as an advocate, i.e. at the post-enrolment stage. It cannot frame a rule that is barring persons from enrolment. The rule was thus inconsistent with the parent Act.
• The validity of delegated legislation can be challenged on the ground that it is ultra-vires the parent act or enabling statute. It is an accepted principle that delegated authority must be exercised strictly within the authority of law. Delegated legislation can be held valid only if it conforms exactly to the power granted.
• Under English law  delegated legislation may be struck down on the ground that if it infringes the parent Act. Thus, where, in the exercise of power under the parent Act, the executive framed certain regulations in order to discourage asylum claims by migrants, it was held that the regulation was ultra vires since they rendered the provisions of the Act nugatory.
• This principle is accepted in India also it is well settled that the rule-making power conferred by the parent Act does not enable the rule-making authority to make a rule which may travel beyond the scope of the Act or may be inconsistent with or repugnant to the enabling Act. If the rule cannot be reconciled with the parent Act, it must be struck down. This principle was laid down in Chandra Bali v. R., AIR 1952.
• In Mohd. Yasin v. Town Area Committee AIR 1952 and in State of Karnataka v. Ganesh Kamath, 1983 SCC, under the parent Act, the municipality was empowered to charge a fee only for the use and occupation of some property of the committee, but the town area committee framed bye-laws and imposed a levy on wholesalers irrespective of any use or occupation of the property by them. Supreme Court held that the bye-laws were beyond the powers conferred on the committee and were ultra-virus.
• In Kunj Bihari Bihari Lal vs State offf. P. 3 2000 SCC., he parent Act H.P. Ceiling on Land Holdings Act, 1972, conferred on the state government power to make rules "for carrying out the purpose of the Act". Though the Act excluded from the operation of the Act "Tea Estate", rules (delegated legislation) sought to include tea plantations and prohibited transfer of such land. The rule was held ultra-vires and was struck down.
• Even where the power to make delegated legislation is in subjective terms and allows the administrative agency to make rules "as appear to it to be necessary or expedient for giving effect to the provisions of the Act", the discretion is neither unfettered nor beyond judicial scrutiny. The court has the power to decide the validity of vires of such provision.
• The question when can a bye-law any other delegated legislation is said to be inconsistent with or repugnant to the parent Act or any general law and therefore, bad. In White v. Morley 1899 Q B "A delegate is not entitled to exercise powers in excess or in contravention of the delegated powers. If an order is issued or framed in excess of powers delegated to the authorities, such power would be illegal or void". Channel LJ stated: "A bye-law is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful".
• Whether a particular piece of delegated legislation is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference to specific provisions contained in the relevant statute conferring the power to make the rule regulation bye-laws extra and also the object and purpose of the Act as can be gathered from various provisions of the enactment.
• In State of M.P. v. Bhola SCC 2003 Supreme Court upheld the validity of rule 3 of the M P Prisoners Release on Probation Rules, 1964 providing that prisoners convicted under Section 396 of the penal code 1860 (IPC) would not be eligible for release on probation. It was held that the classification of offenders on the basis of nature and gravity of offenses cannot be said to be arbitrary and unreasonable.
• In Ajay Canu v. Union of India, SCC 1988, the Rule requiring the compulsory wearing of helmet by persons driving two-wheeler would not be held arbitrary discriminatory for imposing and reasonable restriction on the fundamental right guaranteed under Article 19 (l)(d) of the constitution.

Where Delegated Legislation is Inconsistent with General Law

• Subordinate legislation, apart from being intra vires the Constitution and consistent with the parent Act, must also be in consonance with general law, i.e. any other law enacted by the Legislature. This is based on the principle that a subordinate or delegated legislation made by the executive cannot be contrary to the law of the land.

Where Delegated Legislation is Unconstitutional

• Sometimes a parent Act or delegating statute may be constitutional and valid and delegated legislation may be consistent with the parent Act, yet the delegated legislation may be held invalid on the ground that it contravenes the provisions of the Constitution. It may seem paradoxical that a delegated legislation can be struck down on this ground because if the parent Act is constitutional and delegated legislation is consistent with the parent Act, how can the delegated legislation be ultra vires the Constitution? It was precisely this argument which the Supreme Court was called upon to consider in Narendra Kumar v. Union of India. The Supreme Court held that even though a parent Act might not be unconstitutional, an order made thereunder (delegated legislation) can still be unconstitutional and can be challenged as violative of the provisions of the Constitution.
• In Hindustan Times v. State of U.P., Parliament, by an Act provided a pension to working journalists. The State Government, by executive instructions-imposed a levy on government advertisements on newspapers and deducted such levy from the pension fund of working journalists. The directive of the State Government was held beyond legislative competence and ultra vires the Constitution.

Unreasonableness

• The test of unreasonableness has been, applied in Britain to the bye-laws made by a municipal corporation. The court might well take the position that the legislation never intended to give authority to make unreasonable rules, and they are, therefore, ultra vires.
• In Kruse v. Johnson 1898 2 Q B, laying down the proposition, Lord Russel, however, gave somewhat Limited meaning to the term unreasonableness, viz., if bye-laws were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, or if they involved such oppressive or gratuitous interference with the right of those subject to them as could find no justification in the minds of reasonable man, then these can be regarded as ultra-vires on the presumption that Parliament never intended to give authority to make such bye-laws.
• In Air India v. Nergesh Meerza 1981 SCC, regulations made by Air India providing for termination of service of an air hostess on her first pregnancy has been held to be the most unreasonable and arbitrary provision which is abhorrent to the notions of civilized society. The ruling in Yadav v. State of Haryana AIR 1987 SC, also appears to come very close to saying that unreasonable rules would be ultra vires.
• The courts however adopt a restrictive view of unreasonableness. The test is not whether the impugned rules are reasonable, but whether these are undesirable. A court does not hold a rule unreasonable merely because it does not like or approve the rule. A rule is held unreasonable if it is "manifestly unjust, capricious, inequitable or partial in operation".
• Rajasthan SRTC v. Bal Mukund Bairwa 2009 SCC rule authorizing a public sector undertaking to dismiss a permanent employee just by giving him a 3 months' notice without any hearing being given to him has been quashed by the Supreme Court as being unreasonable and arbitrary.
• It might also be pointed out that delegated legislation may also be adjudged as unreasonable under Article 14 or 19. Art. 14 is been given an expansive interpretation by the courts to cover quite a few aspects of the administrative process.
• In Indian Express Newspapers v. Union of India, 1985 SCC the Apex Court ruled that subordinate legislation does not enjoy the same degree of immunity as substantive legislation enjoys. 'Unreasonableness' is one of the grounds of judicial review available to test the validity of delegated legislation. If a delegate intends to impose a condition, which is unreasonable, it cannot be held legal or valid.

Mala Fide

• Indian Administrative Law is based on the principle that every statutory power must be exercised in good faith. Power to make delegated legislation cannot claim immunity from judicial review if the power has been exercised by the rule-making authority mala fide or with dishonest intention. It may, however, be stated that the decisions of the Supreme Court, are not consistent on the point and there is a cleavage of opinion.

Exclusion of Judicial Review

• Quite often, statutes make an attempt to exclude judicial control of delegated legislation, by providing

Procedural Ultra Vires

• Procedural ultra vires occurs when subordinate legislation does not meet the procedural requirements set by the parent Act or general law. When creating rules, bye-laws, or regulations, the parent Act may stipulate specific procedures, such as consulting certain bodies or publishing draft rules. It is essential for the delegate to follow these procedures to exercise power as intended by the Legislature.
• If the procedural requirements are not followed, the rules may be invalidated. However, it's important to note that failing to meet these requirements does not always nullify the rules. This distinction lies between mandatory and directory requirements. Non-compliance with a directory provision typically does not invalidate subordinate legislation, while ignoring a mandatory requirement does. Absolute enactments must be followed exactly, while directory enactments can be fulfilled substantially.

Procedural Requirements

• Publication
• Consultation

Publication

• Object: The public must have access to the law and be given the opportunity to know it. While Parliament ensures publicity for Acts through various means, delegated legislation may not receive the same attention.
• Directory or Mandatory: In cases like Harla v. State of Rajasthan and Narendra Kumar v. Union of India, the Supreme Court emphasized the necessity of publication for delegated legislation to be valid.
• Mode of Publication: A distinction exists between the publication of delegated legislation and the mode of publication. Even if publication is mandatory, the mode may be directory.
• Effect of Publication: Once published, delegated legislation takes effect from the date of publication.
• Defect in Publication: If delegated legislation is not published at all, it is considered void. However, if it is not published in a specific manner, it may still be valid.

Consultation

• Consultation with affected interests before preparing delegated legislation is a safeguard against abuse of power by the executive.
• The process of consultation involves exchanging viewpoints to reach a satisfactory solution, benefiting both the affected parties and the rule-making authority.
• Consultation does not mean consent but involves deliberation and examination of different viewpoints.
• Whether consultation is mandatory or directory depends on the specific context and purpose of the provision.
• Consultative techniques balance individual interests and administrative needs, infusing democratic norms into bureaucratic legislation.