Substantive and Procedural Ultra Vires
Chapter Fifty-One
Syllabus topic 4, "Grounds of Review"
Pages 155 to 157 of 430
In one line
Substantive ultra vires is doing the wrong thing; procedural ultra vires is doing the right thing the wrong way.
In the wording a student can write in an exam: an act is substantively ultra vires where its content falls outside the power conferred by the enabling law, and procedurally ultra vires where the content is within the power but a procedural condition prescribed by that law and mandatory in character has not been complied with.
Substantive ultra vires: the four ways it happens
One, the subject matter is outside the power. The clearest case, and Kunj Behari Lal Butail in [The Doctrine of Ultra Vires] is the example.
Two, the act exceeds a limit fixed by the statute. A penalty above the maximum; a period of detention beyond the permitted term; a levy above the prescribed rate.
Three, the act conflicts with the parent Act. A rule which contradicts a section is void, because a delegate cannot amend his own enabling law unless the Act says he may, which is the Henry VIII problem in [The Henry VIII Clause].
Four, the act conflicts with the Constitution. A rule is law under Article 13(3)(a), so it dies if it offends Part III.
Procedural ultra vires: the mandatory and directory question
A statute prescribes conditions of two kinds. Some are essential to the validity of what is done; others are directions for the orderly conduct of business. Breach of the first destroys the act; breach of the second does not.
There is no formula, and the courts decide by construction, looking at four things.
The words used. Shall is not conclusive but is a strong indication; may is weaker.
The purpose of the requirement. A requirement designed to protect the person affected is usually mandatory. A requirement designed for administrative convenience is usually directory.
The consequence of holding it mandatory. If a great many past transactions would be upset, the court leans towards directory.
Whether the statute itself prescribes a consequence for non-compliance. If it does, that is a strong indication.
Three requirements that are almost always mandatory
Notice to the person affected. Because the whole point is his protection.
Consultation where the Act requires it before a rule is made. Because the rule affects those consulted.
Publication of a rule. Harla v. State of Rajasthan, AIR 1951 SC 467, holds that natural justice requires a law to be promulgated or published before it becomes operative, and that a law of which the public can have no knowledge is not law at all. The point is worked in [Publication as a Condition of Validity].
Two that are often directory
A time limit for an internal step, where the statute prescribes no consequence.
Substantive and Procedural Ultra Vires
The form of an order or the number of copies to be filed, where nobody is prejudiced.
A worked example
A State Act requires that before declaring an area a slum, the competent authority shall publish a draft declaration, invite objections within thirty days, hear the objectors, and forward the file to the Government within sixty days of the hearing.
The authority publishes the draft, invites objections in fifteen days instead of thirty, hears the objectors, and forwards the file after ninety days.
The shortened objection period is a breach of a mandatory requirement: the period exists for the protection of the persons affected and cutting it in half prejudices them, so the declaration is procedurally ultra vires. The delay in forwarding is directory: it is an internal timetable, the statute prescribes no consequence, and nobody is prejudiced. That contrast, in one set of facts, is the whole topic.
Distinctions that carry marks
| Mandatory requirement | Directory requirement | |
|---|---|---|
| Effect of breach | The act is void | The act stands |
| Typical subject | Notice, hearing, consultation, publication | Internal timetables, forms, returns |
| Test | Purpose of the requirement, words used, consequence of invalidity, whether the Act prescribes a consequence | |
| Can it be waived | Not where it protects the public; sometimes where it protects only the party, who may waive it | Yes |
What this does NOT mean
It does not mean substantive defects can never be cured. They cannot be cured by redoing the act, but the legislature can validate them retrospectively by an Act.
It does not mean a directory requirement may be ignored. An authority which ignores it acts unlawfully even though the act is not void, and persistent disregard can itself be reviewed.
It does not mean the labels decide themselves. Shall has been read as directory and may as mandatory, and the court looks at the purpose.
Quick revision
Substantive ultra vires: the subject matter is outside the power, or the act exceeds a statutory limit, or conflicts with the parent Act, or with the Constitution. Procedural ultra vires: a prescribed condition was not observed and the condition is mandatory. Mandatory or directory is decided by the words, the purpose of the requirement, the consequences of invalidity, and whether the statute prescribes a consequence. Notice, consultation and publication are usually mandatory; internal timetables and forms usually directory. Harla is the authority on publication.
Test yourself
1. Give the practical difference between the two branches. A substantively ultra vires act can never be validly done in that form; a procedurally ultra vires act can be done again after the procedure is followed.
2. Name the four indications used to decide whether a requirement is mandatory. The words used, the purpose of the requirement, the consequences of holding it mandatory, and whether the statute itself prescribes a consequence for non-compliance.
Substantive and Procedural Ultra Vires
3. Why is publication almost always mandatory? Because a law which nobody can know is not a law at all: Harla.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.