Limited Government: Every Power Is a Conferred Power

Articles 154 and 162 do the same for a State. Executive power is vested in the Governor and exercised by him directly or through officers subordinate to him; and its extent is the matters with respect to which the Legislature of the State has power to make laws, subject to a proviso for concurrent subjects where Union law occupies the field.

Article 72 and article 161 confer the pardon powers. The President may grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute a sentence, in the cases article 72 specifies, and a Governor has the corresponding power under article 161. Both are conferred powers, exercisable on ministerial advice, and both are reviewable on limited grounds, which is itself a good illustration of the doctrine: even a power of mercy has a source and a boundary.

The doctrine of ultra vires, in plain words

A thing done outside the grant is void, not merely wrong. Ultra vires is Latin for "beyond the powers". A municipal corporation empowered to license eating houses that purports to license bookshops has not made a bad decision; it has made no decision at all in law.

There are two kinds and both matter here. Substantive ultra vires means the authority did something it was never empowered to do. Procedural ultra vires means it had the power but failed to follow the procedure the empowering provision laid down, for example by not consulting a body the statute required it to consult.

And there is a third idea that does the most work in modern law. A power conferred for one purpose and used for another is an abuse of power, even though the authority undoubtedly had the power. A power to acquire land for a public purpose, used to punish a political opponent, is exercised for a collateral purpose and is void on that ground.

A worked example

A State government has power under a Municipalities Act to supersede a municipal council for "incompetence, or persistent default in the performance of duties". It supersedes a council three weeks after the council passes a resolution criticising the Chief Minister, giving as its reason the council's failure to complete a drainage project.

First ask whether the power exists. It does; the Act confers it, and the Act is within Entry 5 of List II, local government. So this is not substantive ultra vires.

Then ask whether the procedure was followed. If the Act requires a show-cause notice and none was given, the order falls for procedural ultra vires without anyone needing to examine the government's motive. Always take this point first, because it is the cheapest to prove.

Then ask what the power was for. The purpose disclosed by the words "incompetence, or persistent default" is the protection of municipal administration. If the drainage delay was shared by twenty other councils that were not superseded, and the timing follows the resolution, the inference is that the power was used for a purpose it was not given for.

Finally identify the constitutional provision that catches it, because "abuse of power" is not itself a head of challenge. Article 14 is: an order made on an extraneous consideration is arbitrary, and after Royappa arbitrariness is inequality. That is how the doctrine of limited government reaches an Indian court.

The cases

The Indian executive has no residue of inherent power, and the leading statement of this is early. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. Facts. The Punjab government took over the business of printing and publishing school textbooks and prescribing them for schools, and private publishers complained that it was carrying on a trade without any Act authorising it. Held. The executive power of a State is not confined to executing laws already made: it extends to matters on which the legislature can legislate, so the government could carry on this business without a statute, provided it did not encroach on anyone's rights and no expenditure was incurred without appropriation. It also held that Indian government does not follow a rigid separation of powers but a sufficient differentiation of functions, the executive being responsible to the legislature. Why it matters here is that it sets the true boundary. Executive power is wide, but it is bounded by the legislative competence of the government exercising it, and it cannot touch a citizen's rights without law.

And where a right is touched, the conferred power must satisfy the whole Constitution. In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The impounding of a passport under the Passports Act 1967 in the public interest, without reasons and without a hearing. Held. Articles 14, 19 and 21 form a single scheme, so the exercise of a statutory power depriving a person of liberty must be right, just and fair, and that an arbitrary procedure is no procedure at all. Why it matters here is that having a statutory power is only the first of the questions. The authority also has to show that the power, as exercised, survives Part III, which is the point at which limited government and the rule of law meet.

Distinctions

What it does NOT mean

It does not mean the executive can act only where a statute authorises it. Ram Jawaya Kapur is clear that executive power extends to any matter on which the legislature could legislate, so a government may run a business or a scheme without an Act. What it may not do without an Act is take away a right or impose a burden.

It does not mean a limited government is a small one. Limited refers to the boundary of power, not its quantity, and a State with very extensive powers may still be a limited government if every one of them is conferred and reviewable.

And it does not mean every excess is a constitutional question. Most ultra vires arguments are ordinary administrative law and are decided by reading the statute. The constitutional questions arise where the excess touches Part III or crosses the federal line.

Quick revision

All governmental power in India is conferred. Article 52 creates the President and article 53(1) vests Union executive power in him; article 154(1) does the same for a Governor; articles 73 and 162 fix the extent of each by reference to the corresponding legislature's competence; article 74 makes the President act on the advice of the Council of Ministers, with a power to require reconsideration once, and clause (2) makes the tendering of advice non-justiciable. Articles 72 and 161 confer the pardon powers, which are themselves conferred and reviewable. Ultra vires means beyond the powers: substantive, procedural, or an abuse where the power is used for a collateral purpose. Ram Jawaya Kapur holds executive power co-extensive with legislative competence and does not require a statute for every executive act, but forbids encroachment on rights without law. Maneka Gandhi requires the exercise of a conferred power to satisfy articles 14, 19 and 21.

Test yourself

1. Where is the executive power of the Union vested, and what fixes its extent? In the President by articles 52 and 53(1); its extent is fixed by article 73, which extends it to the matters on which Parliament may make laws and to treaty rights, with a proviso keeping it out of Concurrent List matters inside a State unless expressly conferred.

2. What does article 74 add to article 53? It provides that a Council of Ministers with the Prime Minister at its head shall aid and advise the President, who shall act in accordance with that advice, subject to one power to require reconsideration; and clause (2) makes the question whether advice was tendered non-justiciable.

3. Define ultra vires and distinguish its two forms. Beyond the powers. Substantive ultra vires is doing something the authority was never empowered to do; procedural ultra vires is having the power but failing to follow the prescribed procedure.

4. Does the Indian executive need a statute for every act? No. Ram Jawaya Kapur holds that executive power extends to all matters on which the legislature could legislate, so a government may run a scheme or a business without an Act; but it may not encroach on a citizen's rights or spend without appropriation.

5. Through which article does an abuse of power reach a court, and why? Article 14. An order made on an extraneous consideration or for a collateral purpose is arbitrary, and after E.P. Royappa arbitrariness is inequality, so abuse of power becomes a breach of a fundamental right.

6. Why does limited government put the burden on the government rather than the citizen? Because no power is original: the citizen need not find a prohibition, and the government must point to the provision conferring the power it says it exercised.