Ultra Vires

Article 226(1) supplies the forum and the remedy. A High Court may issue writs "for the enforcement of any of the rights conferred by Part III and for any other purpose". Those last five words matter here more than anywhere else, because most ultra vires challenges have nothing to do with fundamental rights: they say a rule exceeded its Act, and article 226 is wide enough to hear that. See [Article 226].

The two limbs

Substantive ultra vires: the content is outside the power. The heads are these, and they should be learned as a checklist.

1. The parent provision is itself void. Nothing can be made under a section that does not survive, whether because the legislature was incompetent or because the section fails for excessive delegation, on [Delegated Legislation].
2. The rule goes beyond the subject the section allows. A power to make rules about the registration of vehicles does not carry a power to fix freight rates.
3. The rule conflicts with its parent Act. A rule cannot contradict the section it was made under, or any other provision of the same statute.
4. The rule conflicts with the Constitution. By article 13(3)(a) a rule is "law", so a rule violating Part III is void exactly as a statute would be.
5. The rule is retrospective without authority. A delegate has no inherent power to reach backwards; the parent Act must say so.
6. The rule levies a charge or creates an offence without express power. Taxation and penal liability are not implied.
7. The delegate has sub-delegated. The maxim is delegatus non potest delegare, a delegate cannot delegate, and a rule-making authority may not pass its rule-making power to somebody else unless the Act permits it.

Procedural ultra vires: the manner was wrong. Parent Acts commonly attach conditions to the exercise of the power: previous publication of a draft, an invitation of objections, consultation with a named body, the concurrence of another authority, publication in the official gazette, laying before the House. Failure to observe one of them is procedural ultra vires if the condition is mandatory. If it is merely directory, substantial compliance is enough and the instrument survives.

Distinguishing the two is the examinable skill. A court looks at the words used, at whether a consequence of non-compliance is stated, at the purpose of the requirement, and at whether treating it as mandatory would defeat the Act. A requirement that protects the people who will be bound by the rule, such as prior publication and objections, is usually mandatory; a purely internal or reporting step is usually directory.

The same doctrine at two levels

The last row is worth pausing on. A challenge to a rule as ultra vires need not be brought by a writ petition at all. Because an ultra vires rule never had legal force, its invalidity may be set up as a defence whenever somebody tries to enforce it, in a civil suit or in a prosecution.

The case

Facts. In re The Delhi Laws Act, 1912, (1951) 2 SCR 747, decided 23 May 1951 by seven judges. The President referred three questions under article 143, each framed in the language of this chapter: was the section "ultra vires the Legislature which passed the said Act"? Section 7 of the Delhi Laws Act 1912 and section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 each let the executive extend to a territory, "with such restrictions and modifications as it thinks fit", any enactment in force elsewhere. Section 2 of the Part C States (Laws) Act 1950 did the same and added that provision might be made in an extended enactment "for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State".

Held. Seven judges wrote seven opinions and their answers differed, so the case is read for its reasoning. The extension powers in the first two Acts were held intra vires: the policy was discernible, and the words "restrictions and modifications" were read narrowly. Bose J. put the limit in terms that state the whole doctrine: the power to "restrict and modify" does not import a power to make essential changes and is "confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another", because "to alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered". The concluding words of section 2 of the Part C States (Laws) Act, permitting repeal or amendment of a corresponding local law, were held ultra vires, Mukherjea J. holding that "to repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself". Bose J. added that "as it can be separated from the rest of the Act, the remainder is good".

Why it matters. It shows the doctrine doing three things at once. It tests a statutory provision against the power of the body that enacted it, which is ultra vires at the level of a statute. It reads a grant of power narrowly, so that a wide phrase like "as it thinks fit" does not authorise what the grant was not for, which is the technique used against every subordinate instrument. And it severs, striking the offending clause and leaving the rest standing, which is why an ultra vires finding rarely destroys a whole enactment.

A worked example

The Municipal Corporations Act empowers a Corporation to "make bye-laws for the regulation of markets, after previous publication of a draft and consideration of objections". The Corporation, without publishing any draft, makes a bye-law that closes all markets on Mondays, levies a fee of two hundred rupees on every stallholder, and makes a breach punishable with three months' imprisonment. Ismail, a stallholder, is prosecuted.

Step one, name the instrument and the power. The bye-law is subordinate legislation, and its whole force comes from the section quoted. Ismail's case is that the bye-law is ultra vires the Act.

Step two, take procedural ultra vires first. The section makes previous publication and consideration of objections a condition of the power. It protects the very people the bye-law binds, so it is mandatory rather than directory. Skipping it invalidates the bye-law without any need to look at its contents.

Step three, then substantive ultra vires, head by head. Closing markets on Mondays is regulation of markets, so that part is inside the grant. The fee is not: a charge is not implied and needs express words. Nor is the punishment: creating an offence and fixing imprisonment requires express authority, and here there is none.

Step four, check the Constitution separately. By article 13(3)(a) the bye-law is "law", so even if it had been within the Act, the closure and the fee would still have to answer article 19(1)(g) and article 14.

Step five, sever. The market-closure clause could survive on its own, if the procedural defect were cured, but the fee and penalty clauses cannot. Article 13 makes a law void "to the extent of the contravention", and the same approach is taken to a rule that is partly outside its Act.

Step six, where and how. Ismail may petition under article 226, relying on "any other purpose", or he may simply plead the invalidity as a defence to the prosecution, because a bye-law made without power never bound him at all.

What it does NOT mean

It does not mean the court is disagreeing with the rule. An ultra vires finding says nothing about whether the rule was wise. A perfectly sensible rule made by somebody with no power to make it is void, and a foolish rule made within power is valid.

It does not mean an invalid instrument can be cured by consent. Nobody can confer a power the law did not confer, so acquiescence, long usage and estoppel do not validate an ultra vires rule.

It does not mean substantive and procedural ultra vires are alternatives. They are separate limbs and both are pleaded. A rule may be within the subject and still fall for want of consultation, and it may follow every step of procedure and still be outside the Act.

Quick revision

• Ultra vires means beyond the powers; intra vires means within them.
• Substantive ultra vires goes to content, procedural ultra vires to the manner of exercise. Both are pleaded.
• Substantive heads: the parent provision is void; the rule exceeds the subject; it contradicts the Act; it offends the Constitution; it is retrospective without authority; it taxes or penalises without express power; it sub-delegates, contrary to delegatus non potest delegare.
• Procedural ultra vires depends on whether the condition is mandatory or directory. Conditions protecting those bound by the rule, such as prior publication and objections, are usually mandatory.
• Article 13(3)(a) makes a rule "law", so Part III applies to it; article 13(2) makes it void "to the extent of the contravention".
• Article 226 is the forum, and its words "and for any other purpose" are what let a challenge proceed with no fundamental right in issue.
• Invalidity may also be raised as a defence, because an ultra vires instrument never had force. Consent and long usage cannot cure it.
• In re The Delhi Laws Act, 1912: the reference was framed in the language of ultra vires; "restrictions and modifications" was read narrowly; the power to repeal a corresponding local law was ultra vires and was severed.

Test yourself

1. Define ultra vires and distinguish its two limbs, with an example of each.

2. How does the doctrine differ when it is applied to a statute and when it is applied to a bye-law?

3. When is a procedural requirement in a parent Act mandatory rather than directory? What does a court look at?

4. Which two provisions of article 13 carry the doctrine, and what does each contribute?

5. Explain, using In re The Delhi Laws Act, 1912, how a grant of power is read and how severance works.

6. A rule made under a licensing Act imposes a renewal fee. The Act says nothing about fees. Advise the licensee.