Ultra Vires

In one line

Ultra vires is Latin: ultra means beyond and vires means powers, so the phrase means beyond the powers. Every public body holds a power that somebody gave it, and every such power has an edge; if the body steps over the edge, what it has done has no legal force, however sensible it was.

In the wording a student can write in an exam: the doctrine of ultra vires is the ground of review on which an act, a rule or a statute is held void because its maker had no power to make it, or did not exercise the power in the manner prescribed. It has two limbs. Substantive ultra vires goes to content: what was done lies outside the power conferred. Procedural ultra vires goes to manner: the power existed, but a mandatory condition attached to its exercise was not observed. The doctrine works at two levels. Against a statute it asks whether the legislature was competent and whether it transgressed a constitutional limit, and that was the very question referred in In re The Delhi Laws Act, 1912: "Was section 7 of the Delhi Laws Act, 1912 ... ultra vires the Legislature which passed the said Act?" Against a subordinate instrument it asks whether the rule stays inside its parent Act and inside the Constitution. The opposite of ultra vires is intra vires, within the powers.

MU set this in 2019, and the answer it looks for names both limbs and applies each.

Why the law has this at all

In a country with a written constitution nobody has original power. Parliament has the powers article 246 and the Union List give it; a State Legislature has its own; a Minister has what a statute gives him; a municipality has what its Act gives it. Power is always traced back to a grant.

If that is so, then the only question that ever needs asking about an official act is: where does the power come from, and does the act fit inside it? Ultra vires is the name for the answer being no. It is the most practical doctrine in the whole of public law, because it does not require a fundamental right to have been broken, or a policy to be shown unwise. It asks a question of authority, and an authority that does not exist cannot be supplied by good intentions.

The provisions

There is no article called "ultra vires". The doctrine is carried by two.

Article 13(2) supplies the consequence when a fundamental right is in issue: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." And article 13(3)(a) makes the doctrine reach subordinate instruments, because for this purpose "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law".