Doctrine of Ultravires or Judicial Control

Introduction

Delegated legislation does not go beyond the scope of judicial review and in all most all the democratic country it is acceptable that the court can decide the validity or otherwise of delegated legislation by mainly applying two text

1) Substantive ultravires
2) Procedural ultravires

Whereas ultra vires mean beyond the power or authority or lack of power. An act may be said to ultra vires when it has been done by a person or body of a person which is beyond their power, authority, jurisdiction.

Ultravires relates to the capacity, authority, or power of a person to do an act. It is not necessary that an act to be ultra vires must be illegal. The essence of doctrines of ultra vires is that an act has been done in excess of power post by the person.

Substantive ultravires

When an act of legislature enacts in excess of the power conferred on the legislature by the Constitution the legislature is said to be ultra vires of the Constitution. It is based on the same principle when subordinate legislation goes beyond what the delegate is authorized to enact an exceeds its power conferred by the legislature the act is said to be ultra vires.

Principle explain

Substantive ultra vires mean that the delegated legislation goes beyond the scope of authority conferred on it by parent statute or by the Constitution. It is the fundamental principle of law that the public authorities can act outside the power that is ultra vires and it has been widely describing as a central principle and foundation of large part of administrative law.

Circumstances

Delegated legislation may be held invalid on the ground of Substantive ultra vires in the following circumstances

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1) Where the parent act is unconstitutional – For delegation to be valid the first requirement is that the parent act or enabling statute by which legislative power is conferred on executive authority must be valid.

2) Where the parent acts delegate essential legislative functions – It is well-settled principles of administrative law that primarily essential legislation functions may be performed by the legislature itself and they cannot delegate it to any other organ of the state.

3) Where delegated legislation is inconsistent with parent act – The validity of delegated legislation can be challenging on the ground that it is ultra vires of the parent act. Delegated legislation can be held valid only if it confirms exactly the power granted.

Case Law

Indian council of Legal Aid and advice vs Bar council of India 1995
A rule was framed by the bar council to lay down conditions for enrolment where they give enrolment of advocates above 45 years of age. The law or the parent act enabled the bar council to lay down the condition subject to which an advocate shall have the right to practice. Therefore declare the rule as ultra vires the supreme Court held that the Bar Council of India make the rule only after a person is enrolled as an advocate. It cannot frame rule baring from enrolment.

4) Where delegated legislation is inconsistent with special laws– A subordinate legislation an art of being ultra vires the Constitution and consistent with parent act must also be in consonance with general law that is any other law enacted by Parliament. This is based on the principle that subordinate or delegated legislation made by the executive cannot be contrary to law.

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Case Law

Hindustan times vs state of UP 2003
Parliament by an act provided a pension to working generalists. The state government by executive instruction imposed on government advertisements or newspaper and deduct such from the pension fund of working generalist The directive of state government held that beyond legislative competence and ultra vires the Constitution.

5) Where the delegated legislation is unconstitutional – Sometimes the parent act or delegating statute may be constitutional and valid and delegated legislation may be invalid on the ground that it contravenes the provision of the constitution. It may be seen that the delegated legislation can be struck down on the ground because if the parent act is constitutional and the delegate legislation is consistent with the parent act. Then how can the delegate legislation be ultra vires?

Case Law
BS Nakara vs Union of India 1983
The apex court held that a pension scheme providing higher pension to government servant retiring before a particular date and a lower pension to others retired after such cut off was arbitrary, discrimination ultra vires as the classification does not stand the test of article 14.

6) Unreasonableness –

Case law
Indian Express newspaper vs Union of India 1984
The apex court ruled that the subordinate legislation does not enjoy the same degree of immunity as substantial legislation. Unreasonable ness is none of the grounds of judicial review to test the validity of delegated legislation. If a delegate intends to impose a condition that is Unreasonable it cannot be held legal or valid.

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7) Malafide (Bad faith) – Indian delegated legislation is based on the principle that every statutory power must be exercised in good faith. Power to make delegated legislation cannot claim immunity from the judiciary if the power has been exercised by the rulemaking authority under a Malafide intention.

Once the court declares that some administrative act is legally q nullity the consequences are that such an act has not happened at all.

Case Law
Ledhiya machine ltd vs Union of India
The supreme court, in this case, held that if the rule is made by a rulemaking authority which is outside its scope of power then it is void and it is not at all relevant that its validity has not been questioned for a long period of time if the rule is void it remains void whether it has been a question or not.
When an act of legislature enacts in excess of the power conferred on the legislature by the Constitution the legislature is said to be ultra vires of the Constitution. It is based on the same principle when subordinate legislation goes beyond what the delegate is authorized to enact an exceeds its power conferred by the legislature the act is said to be ultra vires.

Author: Mohak Jain,
Ideal Institute of Management and Technology Karkardooma

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