UNDERSTANDING JUDICIAL REVIEW OF ADMINISTRATIVE

ACTIONS WITH RESPECT TO THE "DOCTRINE OF ULTRA VIRES"

ANIMESH RANJAN-BBA.LLB
DHRITI MEHRA – BA.LLB

INTRODUCTION

Ever found yourself in a situation where you felt you need to go beyond your powers and
conduct an act? That is exactly what Ultra Vires is- ‘beyond the powers.' Whenever legislation
has to act beyond its powers, that is, take any action which is beyond its permitted boundaries
or regulations given to them by the law then it is known as Ultra Vires. Usually, the constitution
is the measuring tool of such powers.1 The ultra-vires theory originally appeared in the famous
case of Ashbury Railway Carriage and Iron Co. Ltd. v. Riche. 2 A legislative body always has
certain powers over the law-making, rules, regulations, law-making functions, etc. The major
term for this can be ‘delegated legislation.’ Ultra vires play an important role in the field of
Constitution and Administrative Law. There are certain powers or limitations provided to each
authority in a country. The courts need to decide and keep a check on whether they are
exceeding the same or going beyond their powers. The most prominent and foremost method
to check for the same is Judicial Review. The basic features of the constitution are protected
whenever an authority or a person tries to go beyond their powers or goes against the parent
act. Articles 32- ‘gives the right to individuals to move to the Supreme Court to seek justice
when they feel that their right has been 'unduly deprived'3, 136- ‘Special leave to appeal by the
Supreme Court’ 4, and 226- ‘gives High Courts the ability to issue instructions, orders, and
writs to any person or authority, including the government.’5 of the constitution are the
remedies to the party wronged under Ultra vires. 6

1
“Ultra Vires” Cornell Law School, https://www.law.cornell.edu/wex/ultra_vires, (last visited April. 22, 2023)
2
Ashbury Railway Carriage and Iron Co. Ltd. v. Riche, [1875-76] L.R. 1 Ex. D. 384 (Eng.).
3
INDIA CONSTI. Art. 32.
4
INDIA CONSTI. Art. 136.
5
INDIA CONSTI. Art. 226.
6
Pooja Ganesh, LexForti Legal News & Journal. Explained: The Doctrine of Ultra Vires. LexForti, (Dec 7, 2020).

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SUBSTANTIVE ULTRA VIRES

There are two aspects to the Doctrine of Ultra Vires, one of them being substantive and the
other one being procedural. In layman’s language when the rule-making authority, the
legislature of India, is lacking the substantive powers under the empowering act or the parent
act over the rules in question, then it is known as substantive ultra vires. 7 For example, breach
of principles of natural justice, whenever the powers are exercised beyond the statutory limits
and actions are taken beyond the jurisdiction powers.8

Article 245 has a great role to play in this, it states- ‘Subject to the provisions of this
Constitution, Parliament may make laws for the whole or any part of the territory of India, and
the Legislature of a State may make laws for the whole or any part of the State’9 This clearly
states that the rules have to be in provision with the constitution.

Let us understand the Doctrine of Substantive Ultra Vires with the example of Chintaman Rao
v. State of Madhya Pradesh10, where the court held that the Madhya Pradesh government had
passed a law that violated the fundamental rights stated in the constitution and hence it was
substantive ultra vires. This is a very simple example of substantive ultra vires as a land is ruled
by the constitution and nothing can violate or contradict the same.

PROCEDURAL ULTRA VIRES

Whenever an authority is to exercise power and is authorized to do so, and it fails to follow the
coded procedures then their actions are not according to the protocol and are open to be charged
as invalid under the Doctrine of Procedural Ultra Vires 11. In the case of, Shri Sitaram Sugar
Company Ltd. v. Union of India 12, it was held by the Supreme Court that any authority which
acts in excess of its power (or in bad faith) without any grounds pertaining to extreme or gross

7
The Doctrine of Substantive Ultra Vires in Indian Administrative Law. Teacher, Law, (Nov 2013).
8
Substantive ultra vires acts and judicial control over it. The Fact Factor, (Oct 28, 2019)
9
INDIA CONSTI. Art. 245.
10
Chintaman Rao v State of Madhya Pradesh, 1950 AIR 119 (India).
11
Pratiksha Gautam & Sakshi Nathani, Judicial Control: Doctrine of Ultra Vires in Administrative Law, Journal for
Law Students and Researchers, (2020).
12
Shri Sitaram Sugar Company Ltd. v. Union of India, (1990) 1 SCC 645.

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circumstances then it is an ultra vires act. It also mentions that any act of any authority is open
to challenge if it violates the parent act or the constitution itself. In another case of case
Banwarilal v State of Bihar13, According to the Mines Act, the government must consult with
the Mining Board before developing regulations, and failing to do so renders the ensuing rules
ultra vires. In other words, the Court determined that the clause mandating consultation with
the Board is necessary, and any rules established without such consultation are deemed to be
outside the government's legal jurisdiction. Aylesbury Mushroom Case 14 also states that the
principle of ultra vires applies when authorities, either openly or tacitly, exceed the powers
delegated to them by Parliament. The courts have also ruled that employing these authorities
for purposes other than those intended is unlawful.

ULTRA VIRES WITH REFERENCE TO JUDICIAL REVIEW

An authority's activity would be seen as illegal if it had jurisdiction at first but went beyond it.
This happens because15:

(I) continue to exercise jurisdiction even after an event occurs that removes authority.
(II) Addressing issues outside of its scope.
The Supreme Court has unique original authority to declare any legislation to be void under
this ultra vires and judicial review concept. The legislation must be in question and show that
it was made with more authority than was granted to it by the Constitution, the law, or any
other authority or person. The Supreme Court of the United States of America had similar
authority. Whereas, according to the Ghana Constitution, the supreme court of Ghana has
judicial authority. The United States of America ruled that the Constitution would be the
supreme law of America in the Marbury v. Madison16 decision and that any statute that was
found to conflict with any part of the Constitution would be null and void. According to the
Constitution, the Supreme Court has the authority to evaluate all laws and enactments. The

13
Banwarilal v. State of Bihar, AIR 1959 SC 572.
14
Agricultural Training Board v Aylesbury. Mushrooms. [1972] 1 All ER 280.
15
Paul Craig, Ultra Vires and the Foundations of Judicial Review, The Cambridge Law Journal, Vol. 57, No. 1, pp.
63-90, (Mar. 1998)
16
Marbury V Madison; 1 Cranch 137 2 L Ed 60.

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constitution stipulates that the chief justice must be appointed and that any administrative
institution exercising its jurisdiction must get democratic approval17.

The Supreme Court of India's historic decision in Chamarbaugwalla v. Union18 included a

discussion of the doctrine of ultra vires. The real question is whether what is left is so intricately
linked to the part that has been declared invalid that it cannot stand alone, or, as it has
occasionally been put, whether it is reasonable to assume that the legislature would have passed
what is left without passing the part that is ultra vires at all. Common law is part of the general
land law known as ultra vires. According to this theory, the ultra vires doctrine no longer only
rests on legislative intent. It becomes, without a doubt, a means through which common law
establishes its rules over governance 19.

It is well-established that the Supreme Court will declare a law to be invalid when it exercises
its judicial review authority under Article 1320 of the Constitution if it exceeds the legislative
authority granted by the Constitution or conflicts with any provision of the Constitution. How
much judicial power of enactment does the court have under Article 1321? Articles 1922, 2123,
and 2224 in A.K. Gopalan v. State of Madras25. In the historic Gopalan case, the Supreme Court
took into account the important considerations. In this instance, the petitioner was sentenced to
prison, but it was overturned on appeal. He was thereafter imprisoned following the terms of
the Madras local act. He was given a request made under Section 3 (1) of the Prevention
Detection Act, 195026when he was in such custody. The petitioner contested the legality on
various grounds. The Act's violations of the stipulations of the Arts. 1927 and 2128 were the
main justifications. He filed an appeal for a writ of habeas corpus. The petitioner's claims and

17
C.K Takwani, Lectures on Administrative law, Eastern Book Company,2010 KS.
18
Chamarbaugwalla v Union; (1957) SCR 874.
19
M. P. Jain, Indian Constitutional Law (Eighth Ed.).
20
INDIA CONSTI. Art. 13.
21
Supra Note 19.
22
INDIA CONSTI. Art. 19.
23
INDIA CONSTI. Art. 21.
24
INDIA CONSTI. Art. 22.
25
A.K Gopalan Vs State of Madras; A.I.R 1950 S.C. 27.
26
The Preventive Detention Act, 1950, § 3, Acts of Parliament, 1950 (India).
27
Supra Note 21.
28
Supra Note 22.

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defenses were supported by: (1) that the applicant, an Indian national, reserved the right to
travel unrestrictedly across India [Article 19(d)]. According to article clause 5, the petitioner's
privilege must be restricted. The Prevention Detention Act was not the legislation that was
intended by Article 19, clause 5. No one could be deprived of their life or personal freedom
"except in accordance with the procedure established by law," according to Article 21. The
petitioner argued that the term "law" used here did not refer to State-made or enacted law but
rather to the principles of natural justice. The Preventive Detention Act, which permitted
detention without a preliminary hearing and was therefore against the norms of regular equity,
violated Article 21 of the Constitution. (3) The Constitution's provision for preventative
detention, Article 2229, was limited by Article 21. The Supreme Court established the
following criteria: (1) An act with managing preventive or reformatory detentions as its
immediate goal is not covered by Art. 19. This means that a law that refers to Art. 21 cannot
be challenged on the grounds that it violates Art. 19. (2) Reading Article 19 (1) (d) as dealing
with a similar matter is not appropriate because Article 21 (d) is fundamentally distinct from
the right to personal liberty mentioned in Act 21. As a result, Art. 19 has no influence over Art.
21. The ruling made it plain for the first time that the right to personal freedom was always
subject to judicial review and was under the authority of legislation 30. A legal review of an
administrative action may be based on ultra vires. In essence, ultra vires refers to acting outside
of one's authority, and the decision of this gives numerous legal doctrines and pertinent statutes
a critical analysis.

Constitutional Ultra Vires: This demonstrates the supremacy of the written constitution in these
nations. It exhibits a law of inconsistency as well. According to this idea, authority is granted
an excessive amount of power. This was decided in the DOHERTY v. BALEWA 31 case, where
the court ruled that the power granted to the prime minister by the Parliament under the
Constitution and Tribunals of Inquiry Act of 1961 was seen to be in excess of the
Constitution32.

29
Supra Note 20.
30
T. R. S. Allan, Constitutional Dialogue and the Justification of Judicial Review, Oxford Journal of Legal Studies,
Vol. 23, No. 4, pp. 563-584, (2003).
31
Doherty v. Sir A. Tafawa-Balewa [1961] All N.L.R. 604.
32
Massey, Administrative Law (Ninth Edition).

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Substantive ultra vires: This generally happens when any actions taken, or powers exercised
by administrative authorities or agents exceed those granted by statute or are otherwise in
violation of the law or the constitution. It can be described as lacking over the jurisdiction (no
legal support, action taken by an inappropriate person or body, an unwise arrangement or
constitution of the body authorized to act, action taken concerning an inappropriate person or
subject matter, and the burden of an inappropriate order or punishment by the person or body
authorized to act). Be mindful that a city organization employs supporting troops33.

(a) Those that are expressly permitted

(b) necessary, judiciously implied, or coincidental to the forces explicitly permitted

(c) crucial to the accomplishment of the stated goals and motives of the organization are not
only useful but essential.

Abuse of power: The courts will intervene to prevent power from being abused as well as being
exceeded. This is a check against the misuse of power. Even though an action appears to be
legal on the surface, it is not acceptable to use power for an improper purpose. All pertinent
factors must be taken into account when exercising power. This is regarded as a regulation
wherein the party is prohibited from disputing the reality of certain facts that he has previously
declared and on which the opposing party has been basing their arguments against him. Any
text that was created recklessly, carelessly, fraudulently, or innocently may be regarded as
words or conduct. This principle could be used to preclude any public authority from exercising
discretion granted to them by any statute if any statement is of an existing fact 34.

JUDICIAL REVIEW WITH RESPECT TO ADMINISTRATIVE APPEAL AND ULTRA VIRES

DOCTRINE

If an affected individual is not pleased with any action made by an administrative officer or
administrative agency, they have the right to appeal to the Supreme Court. The term
"administrative appeal" refers to this 35. This is covered by Articles 323(A)36 and 323(B)37,
which are particularly covered by the Indian Constitution and are regarded as administrative

33
Supra Note 27.
34
Supra Note 27.
35
Onyekachi Duru, Ultra Vires as a Ground for Judicial Review of Admin Action
36
INDIA CONSTI. Art. 323, cl A.
37
INDIA CONSTI. Art. 323, cl B.

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officer powers. thus, following this article. A law known as the Administrative Tribunal Act
of 1985 was passed by Parliament 38. Section 2839 of this Act provides40:

1.) Any function carried out by a tribunal or officer is regarded as the final determination,
and the high court lacks the authority to conduct judicial review.
2.) Similarly Sampath Kumar V. UOI41 raised two important points before the Indian
Supreme Court.
A. The legality of the high court's exclusion from judicial review.
B. Whether the tribunal has the same authority as the high court.

1. The exclusion of High Court judicial review under Articles 226 42 and 22743 is unquestionably
a violation of our constitution's essential structure theory, according to Justice Bhagwati.
Therefore, the court determined that an exclusion of judicial review was invalid.

2. A tribunal is always seen as a stand-in and not an equal. The court ruled that the second
objection is invalid since the tribunal cannot be compared to the high court. Administrative
authorities make the decision; the tribunal is always below the high court.

Following this case, the legislature passed a new law creating the Central Administrative
Tribunal (CAT), which makes any rulings made by the tribunal final and ineligible for judicial
appeal44. This issue was brought up in the L Chandra Kumar v. UOI case45, along with 162
other problems46.

1. The veracity of this act

2. If true, administrative officials would exercise their authority in a biased and arbitrary
manner.

38
Chamila S Tagala, The Doctrine of Ultra Vires and Judicial Review of Administrative Action
39
Administrative Tribunal Act, 1985, § 28, Acts of Parliament, 1985 (India).
40
C.K Takwani, Lectures on Administrative law, Eastern Book Company,2010 KS
41
Sampath Kumar V Uoi; 1987 SCR (3) 233
42
INDIA CONSTI. Art. 226.
43
INDIA CONSTI. Art. 227.
44
M. P. Jain, Indian Constitutional Law (Eighth Ed.).
45
L Chandra Kumar V UOI; 1997 (2) SCR 1186
46
Supra Note 35.

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As a result, the court determined that judicial review is a fundamental component of doctrine
and that no other authority referring to an administrative officer is permitted to undermine
doctrine by making arbitrary decisions or decisions that exceed their authority47.

2.) Sections 2(d) of Article 323(A) and Section 3(d) of Article 323(B) of the Administrative
Tribunal Act of 1985 were deemed to be ultra vires and were therefore invalidated. Ultra vires
are the fundamental framework of doctrine.

3.) The court ruled that no tribunal decision can be considered equal to those of the Supreme
Court or High Court. The court will examine that choice carefully.

CONCLUSION

From the above analysis, we can conclude that an act that exceeds the legal authority or restrictions
granted to a person or authority is known as ultra vires.In summary, the doctrine of ultra vires is critical
to maintaining checks and balances within the framework of administrative and constitutional law.This
doctrine ensures that any actions taken by legislative or administrative bodies are within the legally
defined limits.The principle of ultra vires serves to uphold the supremacy of the constitution and protect
fundamental rights by allowing judicial intervention whenever there is an abuse of power. Judicial
review enforces this doctrine and ensures the constitutional framework's integrity.This is critical for
upholding the rule of law and preventing abuses of power.

The distinction between substantive and procedural ultra vires further clarifies the scope of
judicial review. Substantive ultra vires addresses the issue of whether the content of a decision
or action exceeds the authority conferred by law, while procedural ultra vires focuses on
whether the correct procedures were followed in making a decision. The Ultra Vires theory and
the idea of judicial review provide the Supreme Court the power to declare any piece of law to
be invalid. The Indian Constitution's Articles 32, 136, and 226 offer remedies to persons who
have been aggrieved by Ultra Vires.

To conclude, the doctrine of ultra vires, reinforced by judicial review, is critical for ensuring
the integrity of administrative actions and legislative measures. It ensures that all governmental
activities are carried out in accordance with the law, protecting individuals' rights and
maintaining the state's balance of power.

47
Supra Note 46.

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