BRILLOPEDIA VOLUME 1 ISSUE 1, 2021

THE DOCTRINE OF ULTRA VIRES

Written by Aditya Sinha

KIIT SCHOOL OF LAW

ABSTRACT
The doctrine of ultra vires is the basic doctrine in administrative law. The doctrine envisages
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 simple proposition that a public authority may not act
outside its powers (ultra vires) might fitly be called the central principle of administrative
law. ‘The juristic basis of judicial review is the doctrine of ultra vires.’ To a large extent, the
courts have developed the subject by extending and refining this principle, which has many
ramifications and which in some of its aspects attains a high degree of artificiality.

At the point when a force vested in a public authority is surpassed, acts done in the
overabundance of the force are invalid as being ultra vires. The ultra vires regulation serves
to control the individuals who surpass the forces, which an Act has given. Eg, where a nearby
gathering whose ability to act and to control private exercises is gotten from resolution, acts
outside the extent of that position. In numerous fields, parliament has given no privilege of
allure against regulatory choices. Regardless of the courts practice an administrative purview
on issues, for example, cut-off points of a position's forces, which influence the
legitimateness of authentic choices. In practising this purview, the courts assess the standards
of regulatory law that have been created from legal choice and the particular enactment that
applies to the topic. At the point when a bit of assigned enactment is proclaimed to be ultra
vires, it is void and gets unenforceable. It can't influence the rights and obligations of any
individual. The legitimacy of a standard can be tested in a court either straightforwardly or
correspondingly, or by the method of safeguard to a common case dependent on the
denounced rule, or as a guard in an indictment for encroaching the standard. An individual
can challenge the legitimacy of regulatory activity by testing the legitimacy of the significant
principle. An individual whose intrigue is influenced unfavourably by a bit of designated
enactment can straightforwardly difficulties its vires in a court.

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INTRODUCTION
The doctrine of ultra vires states that an authority can exercise only too much power as is
conferred on it by law. An action of the authority is intra vires when it comes under the limits
of the power conferred on it but ultra vires if it goes outside this limit. 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. However, frequently enact
legislation containing provisions which empower the executive government, or specify the
bodies or officeholders, or the judiciary to make regulations or other forms of instruments
which provided that they are properly made, have the effects 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 separation
of powers. This doctrine of separation of powers has been largely preserved by a system for
the parliamentary control of executive lawmaking. 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 a democratic system has virtually made legislative control ineffective, the
need for judicial control would not have arisen or probably reduced 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.

At the point when a bit of appointed enactment is proclaimed to be ultra vires, it is void and
gets unenforceable. It can't influence the rights and obligations of any individual. Until a
standard is announced invalid by a court, it is attempted to be legitimate. If the legitimate and
the invalid pieces of a standard can be cut off, at exactly that point the invalid bit of the
standard is subdued and the substantial bit can keep on staying employable. In any case, on
the off chance that the legitimate and the invalid parts are inseparably stirred up, at that point
the whole standard needs to go. A void standard can't be the premise of any managerial
activity.

Nobody can be arraigned under a void guideline. The legitimacy of a standard can be tested
in a court either legitimately or correspondingly, or by the method of protection to a common

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case dependent on the reviled rule, or as a safeguard in arraignment for encroaching the
standard. An individual can challenge the legitimacy of managerial activity by testing the
legitimacy of the important standard. An individual whose intrigue is influenced
unfavourably by a bit of designated enactment can straightforwardly challenge its vires in a
court. The court may concede a directive or affirmation or issue mandamus or grant harms to
the influenced individual as might be appropriate. On the off chance that the subordinate or
appointed enactment goes past the extent of power given on the representative or it is in strife
with the parent or empowering act, it is called considerable ultra vires. The legitimacy of the
subordinate or appointed enactment might be tested under the watchful eye of the Courts on
this ground.
Thus the doctrine of ultra vires can be further divided into
1- That the enabling Act is ultra vires the constitution
IT means that if the enabling Act is ultra vires the constitution which prescribes the
boundaries within which the legislature can act, the rules and regulations framed thereunder
would also be void, the enabling Act may violate either the implied or express limits of the
constitution.

2- The Administrative Legislation is ultra vires the constitution

It may happen that the enabling Act may not be ultra vires the constitution, yet the rules and
regulation framed thereunder may violate any provision of the constitution1, it was held that
even if the enabling act is intra vires, the constitutionality of delegated legislation can still be
considered because the law cannot be presumed to authorities anything unconstitutional.

3- That the Administrative Legislation is ultra vires the Enabling Act

The challenge to the authorities to the constitutionality of Administrative rulemaking because
is ultra vires the enabling Act can be sustained on the grounds of
 That it is more than the power conferred by the enabling act.
 That it is a conflict with the enabling act.
 That it conflicts with the prescribed procedure of the enabling act.
 That it is unreasonable, arbitrary and discriminatory.
 That it Is mala fide.

1
AIR 1960 SC 430

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 That it encroaches upon the rights of the private citizens derived from the common
law in the absence of express authority in the enabling act.
 That it conflicts with the terms of some other statue.
 Waiver of the rule.

HISTORY AND CHANGES

THERE is a growing literature concerning the role of the ultra vires doctrine and its place
within administrative law. For some, the doctrine is the central principle of administrative
law, without which judicial intervention would rest on uncertain foundations.' For others, it
constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial
intervention, and at worst a device which allows the judiciary to conceal the real justifications
for developments in judicial review.

Today the institution of delegated legislation has come to stay as a part of the modern
administrative process. The question no longer arises whether delegated legislation is
desirable or necessary or not, but what controls and safeguards can and ought to be
introduced so that the rule-making power conferred on the administration is not misused or
misapplied. Legislatures having delegated their powers, have to bear the responsibility to
ensure that the delegate shall not over-step the legitimate domain and commit a violation by
exceeding or abusing the powers delegated.

Thus, the legislatures have 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 necessity2 ’.

The rule of the majority in democratic systems has virtually made legislative controls
ineffective. Amore 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 legislation been effective, the need for
judicial control would not have arisen or probably reduced to the minimum.

2
Krishna Iyer J. in Avinder Singh vs. State of Punjab, AIR 1979 SC 321

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This has not been so, hence, judicial control has become an inevitable necessity to prevent
executives acting as super-legislatures or potential dictators3. Pre-constitutional control to
post-constitutional judicial control found a big shift from the scrutiny of delegated legislation
confined to the area of sub-delegation from British Parliament to Indian legislature 4 and
laying down a fundamental principle of delegation in the post-constitutional era5 which can
be stated as follows: -“Legislatures cannot delegate their essential legislative powers.
Essential legislative powers relate to the determination of the policy of the legislature and of
rendering that policy into a binding rule of conduct”.
In other words, the delegation of legislative power can be confined to ‘non-essentials’ or
subsidiary matters. Delegation of legislative powers of essential nature would be invalid. This
has come as a first principle laid down in the area of judicial control and subsequently
expanded to several rules laid down by the judiciary. In Indian Express Newspapers (Bom)
(P) Ltd. v. Union of India6, the grounds on which subordinate legislation can be questioned
were outlined by the Supreme Court. E. S. VENKATARAMIAH, J. observed thus: “75.
A piece of subordinate legislation does not carry the same degree of immunity which is
enjoyed by a statute passed by a competent legislature. Subordinate legislation may be
questioned on any of the grounds on which plenary legislation is questioned. Besides, it may
also be questioned on the ground that it does not conform to the statute under which it is
made.

It may further be questioned on the ground that it is contrary to some other statute. That is
because subordinate legislation must yield to plenary legislation. It may also be questioned on
the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but
in the sense that it is manifestly arbitrary. In England, the judges would say ‘Parliament never
intended authority to make such rules.
Substantive ultra vires - means that the delegated legislation goes beyond the scope of the
power conferred by the parent statute, or it is in conflict with the delegated statute, and hence,
it is invalid. The doctrine refers to the scope, extent and range of power conferred by the
parent Act on the concerned authority to make rules.

3
C.K. Takwani, “Lectures on Administrative Law”, 5th edn., 2012, Eastern Book Company, p.172.
4
Empress vs. Burah (1877) 3 Cal 63; Jitendranath Gupta vs. Province of Bihar, AIR 1949 FC 175
5
In Re Delhi Laws Act, AIR 1951 SC 332
6
(1985) 1 SCC 641

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A rule has to yield to the statutory provision. The rule must also come within the scope and
purview of the rulemaking power of the authority framing the rule 7. While applying the
doctrine of substantive ultra vires to delegated legislation, the courts do not look merely at the
express words of the enabling provision in the parent statute, but go beyond them and also
imply certain restrictions therein.
The idea is that the courts do not want the executive to do certain things by using its general
rule-making power without being specifically authorised by law to do so. This approach, to
some extent, helps in the preservation of individual liberty, strengthening of judicial control
over delegated legislation, and giving a somewhat broader dimension to the doctrine of ultra
vires8.
Procedural ultra vires come into play when the Parent Act prescribes certain procedures
which the delegate has to follow. It is the basic principle of law long settled that, in the
manner of doing a particular act is prescribed under any statute, the act must be done in that
manner or not at all9.

A question arises whether the rules made without following the prescribed procedure are to
be regarded as valid or not. The answer to this question depends upon whether the specific
procedural requirement is regarded as a directory or mandatory. A statute may lay down
some procedural requirement for exercising discretionary power conferred by it. An exercise
of discretionary power may be invalid because the concerned authority has failed to comply
with the statutory procedural requirements as mandatory or directory. Non-compliance with a
mandatory requirement makes the discretionary decision ultra vires This is known as
procedural ultra vires.

Nevertheless, the principles on which the constitutionality of a statute is judged and that of
subordinate legislation are different. Subordinate legislation could not enjoy the same degree
of immunity as a legislative act would. The validity of the rules can still be challenged even
in the face of such phrases as shall not be called in question in any court in the enabling act10.

7
Id 12, p. 56
8
M. P. Jain & S. N. Jain, “Principles on Administrative Law”, Vol. 1, 7th edn, 2013, Reprint 2016, LexisNexis,
p.161
9
Babu Verghese vs. Bar Council of Kerala, AIR 1999 SC 1281
10
State of Kerala v. K.M.C. Abdulla & Co AIR 1965 SC 1585

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In the same manner that an act providing that rules made thereafter on publication in the
official Gazette would be as if enacted in the act cannot take away judicial review. Grounds
of invalidity may arise on the following counts11.

ANALYSIS
That the enabling Act is ultra vires the constitution – If the enabling Act is ultra vires the
constitution which prescribes the rules and regulations framed thereunder would also be void
the enabling act may violate either the implied or express limits of the constitution. Implied
limits of the constitution are those laid down in the Delhi Laws Act, 1912, re12. The
legislature cannot delegate its essential power to any other agency, and if it so delegated its
essential power to any other agency, and if so delegates the enabling Act will be ultra vires
the constitution. The court held that the 2nd part invalid because it authorised the
administrative agency to repeal a law which, in the opinion of the court, is an essential
legislative function.

In the same manner in Hamdard Dawakhana13 the court held section 3(d) of the drugs and
magic remedies as ultra vires the constitution because the legislature had not provided
sufficient guidelines for the exercise of administrative discretion in matters of selecting a
disease to be added in the schedule. whether particular legislation suffers from excessive
delegation is a question to be decided by the court concerning certain factors provided which
may include.
 Subject matter of law
 Scheme of the law
 Provisions of statute including the preamble
 Factual and circumstantial background in which the law is enacted
However, when a statue is challenged and on the grounds of being excessive delegation, there
is a presumption in favour of its constitutionality and if two interpretations are possible one
which makes the statue constitutional shall be adopted. The invalidity of the rules and
regulations may also arise if enabling the act violates the express limits prescribed by the
constitution no legislature has the competence to violate the scheme of distribution of power

11
General Officer Subhash Chandra Yadav 1988 2 SCC 351
12
AIR 1951 SC 332
13
AIR 1960 SC 554

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given in the constitution14. While deciding the constitutional validity of any parliamentary
legislation on the ground of legislative competence, the courts adopt a liberal view while
applying pith and substance to all ancillary and subsidiary matters which can fairly and
reasonably be held to be included in it.
The Administrative legislation is ultra vires the constitution - It may happen that the
enabling Act may not be ultra vires the constitution, yet the rules and regulation framed
thereunder may violate any provision of the constitution, it was held that even if the enabling
act is intra vires, the constitutionality of delegated legislation can still be considered because
the law cannot be presumed to authorities anything unconstitutional.

In some cases, it is discovered that the Enabling or Parent Act isn't violative of the
Constitution, however, the subordinate or appointed enactment made under It abuses the
arrangements of the Constitution. Such subordinate or assigned enactment will be unlawful
and void, however, the Enabling or Parent Act is legitimate. Hence, the subordinate or
designated enactment, (e.g., rules, guidelines, by-laws, and so on.) made under the Enabling
or Parent Act might be illegal while the Enabling or Parent Act is established.

Article 31-B of the Constitution of India is likewise outstanding here. The Acts and
Regulations Included in the IXth Schedule of the Constitution are ensured under Article 31-B
against the ground of infringement of any of the Fundamental Rights, however not against
different grounds. The insurance of Article 31-B is accessible just to the Acts or Regulations
put In the IXth Schedule of the Constitution. On the off chance that an Act Is put under the
IXth Schedule, the security of Article 31-B will be accessible to such Act, yet this insurance
won't be accessible to the appointed enactment made under It. Accordingly, the designated
enactment might be tested on the ground that it abuses the Constitution, even though the
Enabling or Parent Act under, which it has been made is ensured by Article 31-B. (Governing
body in the ninth timetable isn't under legal examination) (zamindari abolishment Act).
However, in a case where the parent act cannot be challenged before the court because the
protection if Article 31(b) of the constitution on account of its placement in (9th Schedule) 15
and got the protection of Article 31(b) of the constitution and, therefore, could not be
challenged for any alleged inconsistency with any provision of the constitution. The supreme
14
Art 246 Of The Indian Constitution

15
I.R. Coelho v. State of T.N.2007 2 SCC 1

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court held that Article 31 B saves only the act and not the administrative rulemaking under it
however it can still be argued that if the act has been placed in the protective shield of the 9th
schedule, the very purpose of the protection would be destroyed. The rule framed under the
act could still be challenged on the ground of unconstitutionality16.
That the administrative legislation is ultra vires the enabling Act - The challenge to the
authorities to the constitutionality of Administrative rulemaking because is ultra vires the
enabling Act can be sustained on the grounds of
 That it is more than the power conferred by the enabling act.
 That it is a conflict with the enabling act.
 That it conflicts with the prescribed procedure of the enabling act.
 That it is unreasonable, arbitrary and discriminatory.
 That it is mala fide.
 That it encroaches upon the rights of the private citizens derived from the common
law in the absence of express authority in the enabling act.
 That it conflicts with the terms of some other statue.
 Waiver of the rule.
The legitimacy of the subordinate or designated enactment can be tested on the ground that it
is ultra vires the Enabling or Parent Act. On the off chance that the subordinate or designated
enactment made by the representative is an overabundance of the force gave by the Enabling
or Parent Act or is in strife with the arrangements of the Enabling or Parent Act or is made
without following the system required by the Enabling or Parent Act to be trailed by the
agent, the appointed or subordinate enactment will be invalid on the ground that it Is ultra
vires the Enabling or Parent Act. The legitimacy of the activity of intensity is tried based on
the Prussians as it stands right now and not based on that it was previously The subordinate
or designated enactment is held to be ultra vires the Enabling or Parent Act when it is
discovered to be in abundance of the force presented by the Enabling or Parent Act If the
assigned enactment is past the force given on the appointed by the Enabling Act, it would be
Invalid regardless of whether it has been laid before the Legislature.

Where a managerial authority Is engaged by the Enabling Act to make by-laws to control the
market and the position makes by-law which forbids running of cow’s market the by-law will

16
Latafat Ali Khan v. State of U.P 1971 SC 1844

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be ultra vires the Enabling Act. The Act engaged the Government to complete the reasons for
the Act the Government made principle to fix the last date for recording the announcement
structures by sellers for getting the advantage of concessional rates between State deals. This
standard was held to be ultra vires the Enabling Act on the ground that the Act engaged the
Government for making rules for recommending the specifics to be referenced in the
structures and it was not offered capacity to endorse a period limit for filling the structure.
When the delegated enactment is discovered irrational and subjective, it is proclaimed
invalid. In India, now and again to High Courts express the view that the appointed
enactment can't be tested on the grounds of preposterousness. Nonetheless, the perspective on
the Courts is that the appointed enactment might be tested on the ground of preposterousness
and assertion. In India tenet of nonsensicalness has been given the strong base of Article 14.
The designated enactment which is outlandish and self-assertive can be tested on the ground
that it is violative of Article 14.
In a guideline given that an air leader would resign from the administration accomplishing the
age of 35 years or on marriage inside 4 years of administration or on first pregnancy,
whichever happened prior. The guideline approved the Managing Director to stretch out the
period of retirement to 45 years at his alternative if an air leader was discovered
therapeutically fit. The Regulation didn't contain any rules or strategy as per which the
watchfulness presented on the Managing Director was to be worked out. The guideline
presented on the Managing Director was unguided and uncontrolled caution. The end of the
administration of an air lady on pregnancy was irrational and self-assertive. The guideline
was held to be violative of Article 14 as it was preposterous and self-assertive17.
Quickly expressed, the rule is that the agent can't make a standard which isn't approved by the
parent rule. On the off chance that the subordinate authoritative position keeps inside the
bounds of the force assigned, the appointed enactment is legitimate, notwithstanding, on the
off chance that the authority surpasses the force designated, at that point, the courts will
proclaim it to be ultra vires.
Meaningful ultra vires imply that the standard creation authority has no considerable force
under the engaging demonstration to make rules being referred to. It alludes to the extension,
degree and scope of intensity given by the parent rule to make appointed enactment. Quickly
expressed, the guideline is that the representative can't make a standard which isn't approved

17
Air India v. Nargesh Meerza

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by the parent rule. On the off chance that the subordinate authoritative position keeps inside
the degree and limits of the force assigned, the designated enactment is legitimate; yet on the
off chance that it comes up short outside the extent of the force, the courts will announce it
invalid. Assigned enactment to be legitimate must fall inside the four corners of the forces
given by the resolution. Pronouncing a standard in the Karnataka Motor Vehicle Rules, 1963,
ultra vires the Motor vehicles act, 1939, generally speaking, was conflicting with a segment
in the demonstration, the Supreme Court announced in State of Karnataka v H. Ganesh
Kamath that the standard creation power "ca exclude inside its extension the ability to make a
standard in opposition to the arrangements of the Act giving the standard creation power.
Conferment of a standard creation power by an Act doesn't empower the standard – making
position to make a standard which goes past the extent of the empowering Act or which is
conflicting therewith or disgusting thereto." As the Supreme Court has stressed in "if the
activity of intensity is in the idea of subordinate enactment, the activity must adjust to the
arrangements of the rule18. All the states of the rule must be satisfied."
The precept alludes to the degree, extension and scope of intensity presented by the parent
follow up on the concerned position to make rules. Conferment of rulemaking power by an
Act on authority doesn't empower the standard creation position to make a standard which is
past the extent of the empowering demonstration, or which is conflicting therewith or
repulsive thereto. The efficacy of judicial control of delegated legislation is very much
dependent on how broad is the statutory formula conferring the power of delegated
legislation is very much dependent on how broad is the statutory formula conferring the
power of delegated legislation on the delegate.
Usually, the application of the ultra vires rule becomes very difficult because of three
reasons:
Powers are usually conferred in broad language.
Ordinarily, the Courts interpret the enabling provision rather broadly.
The courts adopt a deferential, rather than a critical, attitude towards delegated legislation.
In India, the test of reasonableness applies to delegated legislation, both on general principles
of administrative law as well as under such fundamental rights as are guaranteed under the
Constitution of India.

CONCLUSION

18
State of U.P v Renusagar Power Co.

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The doctrine of ultra vires, therefore, envisages 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 simple
proposition that a public authority may not act outside its powers (ultra vires) might fitly be
called the central principle of administrative law. The juristic basis of judicial review is the
doctrine of ultra vires. To a large extent, the courts have developed the subject by extending
and refining this principle, which has many ramifications.
On the question of reasonableness, we have seen that the Court cannot strike down an
administrative rule on the ground of unreasonableness merely because the court thinks that it
goes farther than is necessary or that it does not contain certain provisions which in the
opinion of the Court would have been fair. Judges cannot substitute their wisdom with the
wisdom of the administrative authorities. Unless a rule is manifestly unjust, capricious,
inequitable or partial in operation it cannot be invalidated on the ground of unreasonableness.
The test of reasonableness can come into play if other principles of review fail for judicial
review purposes. In this sense, it is a doctrine of judicial restraint. The test becomes a real
extension of the ultra vires doctrine in so far as unreasonableness is most inevitably
concerned ultimately not just with vires, but also with the quality and merits of the decision
given in the case and whether or not the ends of justice are met with.

Thus, to conclude it can be said that if the subordinate or delegated legislation goes beyond
the scope of the authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground. It is a mechanism to curb
down the exploitation of power by the administrative authority as we all know that “power
corrupts and absolute power corrupts absolutely”. However, in this field, there is lack of
development and there is no substantial change in the concept all through the changing nature
of the current legislative method has widened the horizon of the power of the authority by
giving them the power to act according to the need of the time, even sometimes travelling
beyond the restrictions

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