PROCEDURAL

DEVIANCE OF
DELEGATED
LEGISLATION FROM
PARENT ACT

Submitted by: Keli Vakil

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 INTRODUCTION

Ultra vires literally means, ‘beyond powers’. Ultra vires has two
meanings: (1) substantive ultra vires where a decision has been reached
outside the powers conferred on the decision taker; and (2) procedural ultra
vires where the prescribed procedures have not been properly complied with.
The doctrine of ultra vires gives courts considerable powers of oversight over
decision-making. The range and variety of bodies amenable to the doctrine is
large. Ministers, or any public body with statutory powers, may be included.
The doctrine also applies to companies and corporations that are amenable to
the remedies of declaration or injunction.1

An ultra vires act is one beyond the purposes or powers of a corporation.

It is to be mentioned that all ultra vires actions are void but all void actions are
not ultra vires. An erroneous act is void but not ultra virus. The law of ultra
vires does not apply to the acts done by private citizens but only to those done
by authorities or persons clothed with legal powers. Powers enables an
authority to do what would otherwise be illegal or ineffective.2

DELEGATED LEGISLATION

Meaning

Legislation by the executive branch or a statutory authority or local or

other body under the authority of the competent legislature is called Delegated
legislation3. It permits the bodies beneath parliament to pass their own
legislation .It is legislation made by a person or body other than Parliament.
Parliament, through an Act of Parliament, can permit another person or body

1
Available on www.answes.com/topic/ultravires visited on June 17, 2011.
2
B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 1.
3
K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication) 2006, p. 43.

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to make legislation. An Act of Parliament creates the framework of a particular
law and tends only to contain an outline of the purpose of the Act. By
Parliament giving authority for legislation to be delegated it enables other
persons or bodies to provide more detail to an Act of Parliament.

Parliament thereby, through primary legislation (i.e. an Act of

Parliament), permit others to make law and rules through delegated legislation.
The legislation created by delegated legislation must be made in accordance
with the purposes laid down in the Act. The function of delegated legislation is
it allows the Government to amend a law without having to wait for a new Act
of Parliament to be passed. Further, delegated legislation can be used to make
technical changes to the law, such as altering sanctions under a given statute.
Also, by way of an example, a Local Authority have power given to them under
certain statutes to allow them to make delegated legislation and to make law
which suits their area. Delegated legislation provides a very important role in
the making of law as there is more delegated legislation enacted each year than
there are Acts of Parliament. In addition, delegated legislation has the same
legal standing as the Act of Parliament from which it was created.4

Importance

There are several reasons why delegated legislation is important. Firstly, it

avoids overloading the limited Parliamentary timetable as delegated legislation
can be amended and/or made without having to pass an Act through
Parliament, which can be time consuming. Changes can therefore be made to
the law without the need to have a new Act of Parliament and it further avoids
Parliament having to spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation.

4
Available at http://www.lawteacher.net/english-legal-system/resources/delegated-legislation.php visited on
June 18, 2011.

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 Secondly, delegated legislation allows law to be made by those who have
the relevant expert knowledge. By way of illustration, a local authority can
make law in accordance with what their locality needs as opposed to having
one law across the board which may not suit their particular area. A particular
Local Authority can make a law to suit local needs and that Local Authority will
have the knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it

arises without having to wait for an Act to be passed through Parliament to
resolve the particular situation. Finally, delegated legislation can be used to
cover a situation that Parliament had not anticipated at the time it enacted the
piece of legislation, which makes it flexible and very useful to law-making.
Delegated legislation is therefore able to meet the changing needs of society
and also situations which Parliament had not anticipated when they enacted
the Act of Parliament.

Criticisms5

Delegated legislation is not without its criticisms. The main defects of

delegated legislation are as follows:-

 It has been suggested that by having delegated legislation to make and

amend laws.
 It lacks democracy as too much delegated legislation is made by
unelected people.
 Delegated legislation is subject to less Parliamentary scrutiny than
primary legislation. Parliament therefore has a lack of control over
delegated legislation and this can lead to inconsistencies in laws.
Delegated legislation therefore has the potential to be used in ways which

5
Available on http://www.lawteacher.net/english-legal-system/resources/delegated-legislation.php visited on
June 18, 2011.

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 Parliament had not anticipated when it conferred the power through the
Act of Parliament.
 Delegated legislation is the lack of publicity surrounding it. When law is
made by statutory instrument the public are not normally notified of it
whereas with Acts of Parliament, on the other hand, they are widely
publicised. One reason for the lack of publicity surrounding delegated
legislation is because of the volume of delegated legislation made and
this result in the public not being informed of the changes to law. There
has also been concern expressed that too much law is made through
delegated legislation.

PARENT ACT

Meaning

When a statute confers some legislative powers on an executive

authority and the latter further delegates those powers to another sub-ordinate
authority or agency, it is called ‘sub-delegation’.6

For instance, the Prevention of Terrorism Act (POTO), 2002 confers

rule making power on the Central Government which in turn is authorized to
confer powers on the State government, Administrator of a Union Territory, an
officer of Central Government not below the rank of a Joint Secretary or an
officer of the State Government not below the rank of a district Magistrate.
Similarly, The Essential Commodities Act, 1955 empowers the Central
Government to make rule under the Act. The Act also authorizes the Central
government to delegate powers to its officers, to the State Governments and to
theirs officers. The state Government or the officers concerned can further sub-
delegate the powers.7

6
C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 102.
7
K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 43.

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 Thus, in sub-delegation, a delegate further delegates. This process
of sub-delegation may go through many stages. Thus the statue which
authorise subordinate legislation is known as the parent act or enabling act.8
Sometimes the parent act is worded in wide terms and delegated legislation is
in general terms for detailed application.

Sub-delegated legislation must not offend the Doctrine of Delegatus

Non Potest Delegare which means a delegated power cannot further delegated.
Therefore, an administrative or other statutory authority entrusted with
subordinate law-making power cannot delegate that power to another authority
except in so far as such delegation may itself have been authorized by the
legislature. Thus, where power to issue directions was given to the Pollution
Control Board, the member-Secretary cannot issue such directions unless
power is delegated to him by the board.9

MEANING OF DOCTRINE OF ULTRA VIRES

The word ‘Ultra’ means beyond and ‘Vires’ means powers. A simple
meaning of this term is ‘beyond powers’; in a strict sense, therefore, the
expression is used to mean any act performed in excess of powers of the
authority or the person who performs the act.10

Judicial control of delegated may take different forms. There is rule of

Constitutionality of delegated legislation. Doctrine of Ultra vires is another
method of such control the courts have formulated yet another doctrine in

8
K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 43.
9
Animal Feeds Dairies etc. v. Orissa State, AIR 1995 Ori. 84.
10
B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 1.

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which they search for legislative policy or guidance for a valid delegation of
legislative power.11

In a broader sense the ultra vires principle provided the justification for
constraints upon the way in which the power given to the administrative
agency was exercised. The agency must comply with rules of fair procedure, it
must exercise its discretion to attain only proper and not improper purposes, it
must act on relevant and not irrelevant considerations and it must not act
unreasonably.12

As per Halsbury’s Laws of England, “Ultra vires” in its proper sense

denotes some act or transaction on the part of a corporation which although
not unlawful or contrary to public policy if done by an individual is yet beyond
the legislative powers of the corporations defined by the statue under which it
is formed, or the statues which are applicable to it, or by its character or
memorandum of association.13

In V.M. Kurian v .State of Kerala14, when the State Government of Kerala

granted exemption from the operation of the Kerala building Rules 1984 for the
construction of a high rise building in Cochin without the recommendation of
greater Cochin Development authority and the Chief Town Planner as provided
in the rules, the Supreme Court held that the order in ultra vires.

APPLICABILITY15

Although the doctrine of ultra vires was born in English Courts is also
followed in India, there is however, some difference between the ambit of
applicability of the laws as it prevails in the U.K. and India. in the U.K.
Parliament is supreme and, therefore the courts do not have any authority to
entertain any question raising the legality of any act made by the parliament.
11
S.P. Sathe, Administrative Law, (Nagpur: LexisNexis Butter Worths Wadhwa), 2008, p 387.
12
P.P. Craig, Administrative Law, (London: Sweet and Maxwell Limited), 2003, p 5.
13
K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 65.
14
(2001) 4 SCC 215.
15
B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 10.

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The situation is quiet different in India where the Constitution alone is
supreme.

The Constitution is the law of laws, the paramount and the supreme law
of the country. In Keshvananda Bharti Case16 the Supreme Court discusses
the basic feature of the Constitution for the first time and holds that the
parliament cannot enact any legislation to alter the basic features of the
Constitution. The High Courts and the Supreme Court in the country have
since then decided many questions regarding the Constitutional validity of
many Acts made by legislature and struck down either the whole or parts of
those declaring them to be ultra vires of the Constitution. The ambit of
applicability of the law of ultra vires in India is thus very wide as in the U.S.A.
the doctrine is applicable to an act done not only by the State but also Agents
or Instrumentalities, Local Governments, Local Authorities, Corporation,
Commissions, tribunals, Companies, Clubs etc i.e. to an authority clothed with
legal powers to do act. The doctrine has helped the development of
administrative law. Whenever any Executive, administrative quasi-judicial
authority or the legislature contravenes, ignores or bypasses in manner which
is colourable or otherwise, any provision of the Constitution, statute, principles
of natural justice or acts in a grossly arbitrary manner, the doctrine of ultra
vires is attracted.

Judge-Made Law- The law of ultra vires, like the law of natural justice, is
not an embodied law since Court powers cannot be circumscribed. It is a
judge-made law arising from judicial decisions alone. Although the law has not
been provided for the legislature directly, it has assumed tremendous
importance in the light of the development of Constitutional law and enactment
of numerous socio-economic laws in India.

16
Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461.

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 PROCEDURAL ULTRA VIRES
When a subordinate legislation fails to comply with procedural
requirements prescribed by the parent act or by general law, it is known as
procedural ultra vires.17 When the power is conferred on an administrative
body, the instrument conferring the power may itself provide for restrictions on
the exercise of the power. Such restriction may be procedural (ie how the power
is to be exercised). Even though the statue conferring the powers does not in
terms limit its operation, the courts will impose limits by reference to principle
of reasonableness and fairness.18 In recent times, procedural fairness has
emerged as a unique check on the executive and courts may read such
procedural fairness in delegated legislation. Section 59 of the Mines Act, 1952
empowers the Central Government to frame regulation which is referred to the
Mining boards in draft form for reporting about their expediency. The Board is
to be given reasonable opportunity. Failure to comply with this procedure is
ultra vires.19 In case or procedural ultra vires, the court may quash the
delegated legislation depending whether the procedure is held to be directory or
mandatory. The procedural defects cannot be regarded as fundamental or as
invalidating the imposition of tax by a local body where the tax proposal was
not published in the prescribed manner. If substantial compliance is made, the
omission would amount only as a mere irregularity and not ultra vires.20

In short, an administrative authority may be exercising a power for an

authorized purpose but, if it fails to follow a required procedure, its actions will
be open to challenge. The authority here may ‘doing the right thing’ but it is
doing it ‘in the wrong way’. This is the concept of ‘procedural ultra vires’.

Requirements

17
C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 143.
18
Available at http://books.google.co.in/ visited on June 13, 2011.
19
Banwaru Lal v. State of Bihar, AIR 1961 SC 58.
20
Sitapur Municipality v. Prayag Narain, AIR 1970 SC 58.

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The following two procedural requirements may now be discussed:-

1. Publication

It is a fundamental principle of law that ‘ignorance of law is no excuse’

(ignorantia juris non excusat). But there is also another equally established
principle of law that the public must have access to the law and they should be
given an opportunity to know the law. The very justification for the basic
maxim is that the whole of our law, written or unwritten, is accessible to the
public-in the sense, of course, at any rate, its legal advisers have access to it,
at any moment, as of right.

Jain and Jain rightly stated: “it is essential, therefore, that adequate means
are adopted to publicize delegated legislation so that people are not caught on
the wrong foot in ignorance of the rules applicable to them in a given situation.
The system of publication ought to be such that delegated legislation is not
only made known to the people, but it is also easy to locate as and when
necessary.”

In B.K.Srinivasan v. State of Karnataka21, Outline Development Plan

Zonal Regulations were not published as required by law. The notice, however,
was published in Official Gazette. The plan as well as Regulations was available
for inspection at the Office of the Local Authority. Section 76-J of the parent
Act provided that any defect in publication valid and action in consonance with
law.

2. Consultation

Consultation is one means by which public participation can be achieved in

administrative action whether in relation to the making of policy, or in the
making of actual decision. It is not the only method of involving the public in
administrative policy and decision making: the public inquiry is an important
example of the wider involvement of the public in many area of decision-

21
AIR 1987 SC 1059.

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making. Consultation is usually required either where a parson or a group may
be affected by some administrative action or where they have some expert
contribution to make to proposed administrative action. The statutory
machinery for consultation tends to be less formal than that relating to the
public inquiry and it is often in the case that the administrative agency has
discretion as to who is consulted.22

In New India Industrial Corporation v. Union of India23, Wad, J. States:

“Consultation of interest infuses law-making process with democratic forms,
particularly in what is called Bureaucratic Legislation. Apart from this, it is an
form administrative necessity. Effective and meaningful administrative is
impossible without imaginative administrative process. If the citizens are to
receive the advantage of any beneficent measures of the administrative on, the
administrative process should be such that the benefit reaches the citizen in
full measure and with expedition.”

In L & T McNeil Ltd v. Govt. of T.N.24, the Apex Court held that before
issuing notification abolishing contract labour, State Advisory board should be
consulted. Though ‘consultation’ does not mean ‘concurrence’, the views of the
Board would indeed assist the government in reaching a conclusion one way or
the other. The Government, however, is not bound by the views of the Board.

On the other hand, in Banwarilal v. state of Bihar25, the Supreme Court

held that the provision under Section 59 of the Mines Act requiring
consultation with the Mining Boards by the Central Government before framing
regulation was mandatory.

22
Available at http://books.google.co.in/ visited on June 16, 2011.
23
AIR 1980 Del 277.
24
(2001) 3 SCC 170.
25
AIR 1961 SC 849.

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 SUBSTANTIVE ULTRA VIRES

When an act of legislature enacts in an excess of power, conferred on

the legislature by the Constitution, the legislation is said to be ultra virus the
Constitution. On the same principle, when a subordinate legislation goes
beyond what the delegate is authorized to enact, it acts ultra vires.26 This is
known as substantive ultra vires.

Substantive ultra virus means that the delegated legislation goes

beyond the scope of the authority conferred on it by the parent statute or by
the Constitution. It is a fundamental principle of law that a public authority
cannot act outside the power. i.e. ultra virus, and it has been rightly described
as the ‘central principle’ and ‘foundation of large part of administrative law’. An
act which, for any reason, is in excess of power is ultra virus.

The first requirement is to ascertain the meaning of the empowering

Act, the second is to examine the breadth of the regulation or decision
purportedly made under it, and the third is to decide whether the latter is
authorised by the former.

One relatively straightforward example is London country Council v.

Attorney General.27 In this case the private bus companies in London
succeeded in challenging the council’s right to run bus services, when it was
empowered by statue to work only ‘tramways’. The House of Lords reiterated
that the council had no general powers to do anything; it could only conduct
activities that its governing Act specifically and clearly authorized. It made no
difference that the council was given general powers in relation to the
administration of the city- those powers were restricted to matters within the
scope of its Act.
In R v. Secretary of State for Education and Employment, ex parte National
Union of Teachers, the High Court determined that an SI concerning teachers’

26
C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 111.
27
(1902) AC 165.

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pay and appraisal arrangements went beyond the powers provided under the
Education Act 1996. Therefore, the delegated legislation was declared to
be ultra vires on substantive grounds.
This would seem to be simple proportion, although the court was obliged
to argue that the bus services could not be regarded as incidental to tram
services. So, activities may be valid if they are regarded as necessarily
incidental to the powers.28
This principle has even been adopted in India.

Enabling act is ultra vires the Constitution: If the statute under which
legislative power have been delegated is itself unconstitutional, then the
delegated legislation originating from that statute will also be unconstitutional.
Unconstitutionality may either be due to excessive delegation or breach of a
fundamental right or any other Constitutional provision. For instance, if a
statute contains a delegation clause involving the abridgement of fundamental
rights, it is ultra vires the Constitution. Similarly, if a state legislature delegates
the power to make rules on a subject falling in the union list, it is clearly
beyond the powers of the state legislature and hence unconstitutional.

In Chintamon Rao v State of M.P29, the enabling empowered the Collector to

make regulations for regulating or prohibiting the manufacture of bidis during
the agricultural season. The purpose of this provision was to induce the
laborers to engage in agricultural operations during the season and thus to
improve production. The collector totally prohibited the manufacture of bidis
during the agricultural season with a view of diverting the entire labour in to
the agricultural sector. The statutory provision was struck down by the Court
as it amounted to an unreasonable restriction upon the fundamental rights to
carry on an occupation guaranteed by Art. 19 (1) (g) of the Constitution.

28
Avaible at http://books.google.co.in visted on June 15, 2011.
29
AIR 1951 SC 118.

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Subordinated legislation was also held invalid because the enabling provision
itself was unconstitutional.

Delegated Legislation Unconstitutional- The Supreme Court has in a

number of cases held that though a law might not be unconstitutional,
subordinate legislation made there under could still be challenged as ultra vires
the Constitutional, because the law could not be presumed to authorize
anything unconstitutional. Thus in Dwaraka Prasad v. State of U.P30, a few
provisions of the U.P. Coal Control Order, 1953, made under sec. 3(2) of the
Essential Supplies Act, 1946, were declared ultra vires as infringing the
fundamental right of freedom to carry on trade or business guaranteed by Art.
19(1)(g).
In Air India v. Nergesh Meerza31, a regulation framed by Air India
providing termination of services of an Air Hostess on her first pregnancy as
held to be extremely arbitrary, unreasonable, and abhorrent to the notions of a
civilized society and interfering with ordinary course of human nature. It is “not
a disability but one of the natural consequences of marriage and is an
immutable characteristic of marries life”.

In Indian council of Legal Aid & Advice v. Bar council of India32, a rule
framed by the Bar Council of India barring entry of persons who have
completed 45 years of age from enrolment as advocates was held arbitrary and
unreasonable. But a rule requiring compulsory wearing of helmet by persons
driving two wheelers could not be held arbitrary, discriminatory or imposing
unreasonable restriction on the fundamental right guaranteed by Article 19 of
the Constitution.33

30
AIR 1954 SC 224.
31
AIR 1981 SC 1829.
32
AIR 1995 SC 691.
33
Ajay Canu v. Union of India, AIR 1988 SC 2027.

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 CONCLUSION

In administrative law, an act may be judicially reviewable "ultra vires" in

a narrow or broad sense. Narrow ultra vires applies if an administrator did not
have the substantive power to make a decision or it was wrought with
procedural defects. Broad "ultra vires" applies if there is an abuse of power or a
failure to exercise an administrative discretion either doctrine may entitle a
claimant to various prerogative writs, equitable remedies or statutory orders if
they are satisfied.

The doctrine of ultra vires played an important role in the development of

corporate powers. Though largely obsolete in modern private corporation law,
the doctrine remains in full force for government entities

The doctrine of ultra vires gives courts considerable powers of oversight

over decision-making. The range and variety of bodies amenable to the doctrine
is large. Ministers, or any public body with statutory powers, may be included.
The doctrine also applies to companies and corporations that are amenable to
the remedies of declaration or injunction.

The doctrine of substantive ultra vires is a fundamental principle of law

that a public authority cannot act outside the power. i.e. ultra virus, and it has
been rightly described as the ‘central principle’ and ‘foundation of large part of
administrative law’

On the whole, judicial review of delegated legislation is more of symbolic

value rather than much of practical value as a control mechanism over
delegated legislation. To make judicial control more efficacious it is necessary
that delegating legislation does not confer power in two broad and generalized
languages. In such case the court may find extremely difficult to hold a rule as
falling outside the scope of power delegated. This is what is envisaged by the

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doctrine of excessive delegation. In that case, delegated legislation will be ultra
vires if it goes beyond basic policy underlying the Parent Act passed by the
legislature.

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