Law and You > Administrative Law > Substantive Ultra Vires
Judicial Control Over Substantive Ultra Vires acts by Delegated Legislation:
In this article, we shall study judicial control over delegated legislation in cases of substantive ultra vires acts.
The Constitution of India empowers Legislature to make laws for the country and it is the power of the executive to administer and execute the law made by the legislature. This is in accordance with the doctrine of the separation of power. However, frequently enacts legislation containing provisions which empower the executive government, or specified bodies or office-holders, or the judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have the effect of law. This form of law is referred to as “delegated legislation”. This arrangement has the appearance of a considerable violation of the doctrine of the separation of powers. This doctrine of the separation of powers has been largely preserved by a system for the parliamentary control of executive law-making.
The legislature has to control the delegated legislation and if not, executives may exercise the delegated power to become a potential dictator or even becoming a parallel legislature. This legislative control over delegated legislation has become a ‘living continuity as a constitutional necessity’. The rule of the majority in democratic systems has virtually made legislative controls ineffective. A more serious observation has been made by Mr. Lloyd George to the effect that ‘legislatures have no control over the executive”. All these observations are pointers to the view that had the Parliamentary control over delegated legislature been effective, the need for judicial control would not have arisen or probably reduced to the minimum. This has not been so, hence, judicial control has become an inevitable necessity to prevent executives acting as super-legislatures or potential dictators.
The court has to see that the power delegated is within the ambit of the constitution as prescribed. Judicial review is more effective because the court do not recommend but it clearly strikes down the rule which is ultra vires in nature. Judicial control over delegated legislature can be exercised at the following two levels:-
1. Delegation may be challenged as unconstitutional; or
2. That the Statutory power has been improperly exercised.
The Doctrine of Ultra Vires:
The doctrine of ultra vires states that an authority can exercise only so much power as is conferred on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.
Substantive Ultra Vires:
Substantive ultra vires mean that the rulemaking authority has no substantive power under the empowering act to make rules in question. This would include for example acting beyond what is authorized. Substantive ultra vires includes the following cases:
- Exercising power in excess of statutory limits;
- Acting in excess of jurisdiction;
- Breach of the principles of natural justice;
A review of case laws shows that the Supreme Court has struck down delegated legislation on the ground of substantive ultra vires in the following ten cases.
When the Parent Act is unconstitutional:
According to article 13(2) of the Constitution, the state shall not make any law which takes away or abridges the rights conferred by part III (i.e. the Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13(3) of the Constitution, makes it clear that for this purpose, unless the context otherwise requires, the law includes any ordinance, order, by – law, rule, regulation, notification, custom or usage having in the territory of India, the force of law. The legislature, thus, cannot violate the provisions of part III of the constitution granting fundamental rights. Article 245 makes it clear that the legislative powers of the parliament and that of the state legislatures are subject to the provisions of the constitution.
In India, the Constitution is considered the Supreme and therefore an act passed by the Legislature is required to be in conformity with the constitutional requirement and if it is found to be in violation of the constitutional provisions, the court declares it unconstitutional and void. If enabling or parent act providing for the delegation of legislation is void, then the subordinate or delegated legislation made under the act will also be declared to be unconstitutional and void. The limits of the Constitution may be express and implied.
In Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 case, the parent Act authorized the Deputy Commissioner to prohibit the manufacture of bidis in some areas during certain periods. When the Deputy Commissioner passed such an order, it was held that the parent Act was unconstitutional as it violated Article 19(1)(g) of the Constitution which confers a fundamental right to carry on any occupation, trade or business. Thus the Court, therefore, struck down the order passed by the Deputy Commissioner.
When the Parent Act Delegates an Essential Legislative Function:
There are some essential functions like repealing of law, unlimited power to modify statute, exemption from law, removal of difficulties from law, retrospective action of law, adoption of future laws, imposition of tax, ousting the jurisdiction of the courts, and penalties and offences are essential functions of the legislature and cannot be delegated. Such delegation of essential functions of the legislation is void. If any essential legislative function is delegated, the same will be struck down.
When Delegated Legislation is Inconsistent with the Parent Act:
When the delegated legislation is found to be directly or indirectly in conflict or inconsistent with the provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act.
In Delhi Transport Undertaking v. B.R.I. Hajelay, AIR 1972 SC 2452 case, according to Section 92 of the Delhi Corporation Act. 1957, all persons drawing salary less than 350 rupees per month shall be appointed only by general Manager of the Delhi Transport Undertaking. According to Section 95 of the Act, no person can be dismissed by any authority subordinate to the authority who has appointed him. The rules made under the Act empowered the General Manager to delegate all his powers to the Assistant General Manager. The rule was held to be in conflict with the aforesaid provision of the Parent Act. The effect of the rule was that a person appointed by the General Manager could be dismissed by the Assistant General Manager. i.e. a person could be dismissed by an authority subordinate to the authority who had appointed him. The rule was declared invalid on the ground that it was in conflict with the provisions of the Enabling Parent Act.
In Chandra Bali v. Rex, AIR 1952 All 795 case, where an authority was empowered to make rules for ensuring the safety of passengers travelling by ferry, and a rule was made prohibiting the operation of private ferries, it was held that the rule was out of scope of the delegated power, and therefore ultra vires the parent Act and hence void.
In Tahir Hussain v. District Board Muzzaffar Nagar, AIR 1954 SC 630 case, where District Board was authorized to make bye-laws for maintaining the health, safety, and convenience of persons living in a particular district, and the Board framed a bye-law prohibiting the holding of a cattle market, the same was struck down as being ultra vires the scope of the delegation under the parent Act.
In Raja Buland Sugar Co. v. Rampur Municipality, the U.P. Municipalities Act. 1916 provided that the draft rules must be published in a local Hindi daily. The draft rules were published in a local Urdu Daily. The Court held that what was mandatory was a publication of the draft rules in a newspaper. Publication In a Hindi daily was the only directory. Consequently, the Court held that the rules could not be held to be ultra vires as the publication was made in substantial compliance with the manner provided in the Act.
When Delegated Legislation is Inconsistent with General Law:
If the delegated legislation is inconsistent with the general law of the land it will be struck down.
In Chester v. Bateson, (1920) 1 KB 829 case, in England a regulation framed under statute provided that landlord could not approach aa court of law without prior consent of the Minister in charge, the regulation was struck down because it deprived subjects of their basic right to seek justice from the King’s court.
In Indian Council of Legal Aid & Advice v. Bar Council of India, AIR 1995 SC 691 case, the Court held the rule framed by the Bar Council of India barring enrollment of persons who are forty-five years of age is invalid.
When the Delegated Legislation is Unconstitutional:
If the de1egated legislation is found to be violative of Articles 14, 19(1) (g) and 21, it will be struck down as invalid. There is a possibility that the parent Act is constitutional, a delegation of legislation is also as per the parent Act, but the rules and regulations made through the delegated legislation are not as per the provisions in the Constitution.
In Air India v. Nargesh Meerza, AIR 1981 SC 1829 case, a regulation provided that an air hostess would retire from the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his option if an air hostess was found medically fit. The Regulation did not contain any guidelines or the policy according to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the Managing Director was unguided and uncontrolled discretion. The termination of the service of an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was unreasonable and arbitrary.
In D. S. Nakara v. Union of India, AIR 1983 SC 130 case, a pension scheme provided a higher pension to government servants retiring before a particular date and lower pension to those retiring after this date. The Supreme Court held that the provision in violation of Article 14, of the Constitution and was therefore invalid.
When the Delegated Legislation is Unreasonable and Arbitrary:
When the de1egated legislation is found unreasonable and arbitrary, it is declared invalid. The delegated legislation may be challenged on the ground of unreasonableness and arbitrariness. Article 14 of the Constitution lays down that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
In Air India v. Nargesh Meerza, AIR 1981 SC 1829 case, a regulation provided that an air hostess would retire from the service attaining the age of 35 years or on marriage within 4 years of service or on first pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to extend the age of retirement to 45 years at his option if an air hostess was found medically fit. The Regulation did not contain any guidelines or the policy according to which the discretion conferred on the Managing Director was to be exercised. The regulation conferred on the Managing Director was unguided and uncontrolled discretion. The termination of the service of an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was unreasonable and arbitrary.
In Indian Council of Legal Aid & Advice v. Bar Council of India, AIR 1995 SC 691 case, the Court held the rule framed by the Bar Council of India barring enrollment of person who are forty-five years of age as violative of Articles 14, 19(1) (g) and 21 as unreasonable and arbitrary.
In Ajay Canu v. Union of India, AIR 1988 SC 430, case the Court held that requiring the compulsory wearing of helmets by drivers of two-wheelers is not to be unreasonable and arbitrary.
When delegated legislation is made by authority exercising its power mala fide:
When the subordinate or delegated legislation is made by the administrative authority exercising its power mala fide or with an ulterior motive, It is held to be ultra vires and, therefore, invalid.
In Narendra Kumar v. Union of India, AIR 1960 SC 430 case, the Court struck down the delegated legislation, on the basis that the rulemaking authority has acted malafide or in bad faith.
When Delegated Legislation Amounts to Sub-delegation:
The maxim potestas non potest delegari which means that a delegate cannot further delegates his power i.e. the power that has been delegated originally may not be redelegated. The main constitutional objection raised against delegation of rule-making power to administrative agencies has been the doctrine of the non-delegability of power, which holds that power delegated to one branch may not be re-delegated to another. People elect their representatives based on their fitness, knowledge, and ability to represent their interests. Hence, it is a generally accepted rule that this mandate bestowed by the people cannot be delegated to another individual or organ, which does not stand in direct relation to the people.
In Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308 case, an Act had authorized the minister to hear the parties and pass the final order in certain situations. The minister delegated the function of hearing to his Secretary, who heard the parties and prepared note to the Minister, who then passed the final order. The Minister’s order was struck down by the court, which observed, “If one person hears and another decides, personal hearing becomes an empty formality.”
In Panama Refining Co. v. Ryan, (1934) 293 US 388 popularly known Hot Oil Case, the President in 1933 issued Executive Order 6199 via the National Industrial Recovery Act (NIRA) prohibiting transporting of petroleum and petroleum products in interstate and foreign commerce if they had been produced in excess of the amounts permitted by states. It was said that such order was “to encourage national industrial recovery” and “to foster fair competition”. Panama Refining Co. operated an oil refinery and sought an injunction against the order. Supreme Court held that in enacting the order, the President subsumed legislative powers that Congress does not have the power to delegate. Congress cannot delegate legislative powers to other branches of government in order to sustain the democratic system of government. When it allows the executive branch to make rules, Congress must provide policies and standards for formulating them. This was not the case in the regulation of oil transportation. The lack of any limits on executive discretion concerned the Court and rendered the order unconstitutional.
When Judicial Review is Excluded:
Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of the Courts to review the delegated legislation. This is called an exclusion clause. Usually, such clause contains the words ‘rules made shall have effect as If enacted or included in the Act Itself or ‘rules made shall not be called in question in any Court’. Section 170 of the Representation of People Act, 1951 lays down that such exclusion cannot affect the jurisdiction of the Supreme Court under Articles 32 and 136 or the High Courts under Articles 226 and 227 of the Constitution.
In Minister of Health v. King, [1931] AC 494 case, the Court has held that in spite of the exclusion clause, the delegated legislation can be reviewed by the Court and can be declared invalid if it is found ultra vires the Enabling or Parent Act.
When Delegated Legislation is Given a Retrospective Effect:
Sometimes a delegated authority while making subordinate legislation tries to give retrospective effect to rules. However, the delegated authority cannot use this power as the sovereign legislature, unless the concerned Statute expressly or by necessary implication confers power in this behalf.
In The State of Madhya Pradesh v. Tikam Das, AIR. 1975 SC 1429 case, the Court held that the delegated authority cannot use the power of retrospective effect for rules and regulation formulated by it like the sovereign legislature, unless the concerned Statute expressly or by necessary implication confers power in this behalf.
In Howell v. Falmouth Boat Construction Co. Ltd. (1951) AC 837 case, a license was issued by an administrative authority and it provided that it would operate retrospectively and cover things done before the license was issued. The House of Lords held this to be invalid.