ULTRA VIRES (Beyond the powers)
By – Surbhi jain
(Mohanlal sukhadia university college of law)
Power is one such thing that is needed by all, but power is never founded alone and completely. Power comes with a lot of duties and responsibilities; each power has its own limits. There is a limit to the power of humans from the king to the servant. Man should use his power only by staying within those limits. But wrong happens when peoples use their powers wrongly and break their limits. To do things illegally without any authority is called ULTRA VIRES.
Ultra vires is a Latin word which means “beyond the powers”. When a person acting or has done something which is beyond his power and jurisdiction that act is known as ultra vires and invalid. If an act requires legal authority and it is done with such authority, it is characterised in law as INTRA VIRES (within the powers). These acts that are intra vires may equivalently be termed as ‘valid’ and those that are ultra vires termed as ‘invalid’.
Acts which are called as ultra vires: -
1. The doctrine of ultra vires in constitutional law: -
In our country the constitutional law is the fundamental law of the land. The constitution is the power that first forms the government, it laid down the general principle of three organs of the government these are 1. Legislature, 2. Executive, 3. Judiciary. These three works together in governance and contribute to maintaining law and order and welfare of the public. The constitution ensures that all these works in harmony with each other and maintain balance among themselves. These three parts cannot work in their own arbitrary way. There are some limitations mention in the constitution, the law that the government enforces on its citizens their limits are fundamental in such a way that the government can never violate them and if these organs does any wrongful act and smash those limits the doctrine of ultra vires will apply. The constitution not only regulates the works of government but it also regulates the work of every person who lives in India whether temporarily or permanent. There are certain fundamental duties which are described in constitution for the control of behaviour of the citizens and the work of government.
The control over the work and freedom of the citizens and government is required when the rights of another person are being violated due to their powers. In this way the constitution takes control over its citizen and different organs of the government. The constitution has given rights to everyone, from an ordinary person to a higher official everyone has their own rights, but they are not given absolutely and in full version without any restriction, they have a definite limit, we have to exercise our rights only by staying within those limits. From this it can be said that the constitution regulates every person and also takes action against all those who violates law. If you do any work beyond your rights, then you may become a culprit in the eye of law.
2. Doctrine of ultra vires in administrative law: -
Administrative law is a law relating to the administration it determines the organisation, powers and duties of the administrative authorities. The constitutional law deals with the general principles relating to the organisation and power of the legislature, executive, and judiciary and the administrative law is that part of constitutional law which deals in detail with the powers and functions of the administrative authorities including civil services, public department, local authorities and other statutory bodies. The actions of every governmental departments are controlled by the constitution and administrative action therefore, can be challenged only if it is ultra vires the statute under which it was taken and with this the power of judicial review is conferred by the constitution. The constitution of India accepted the doctrine of separation of powers among the three organs of the government. The executive powers are with president, the legislative powers are with parliament and the judicial powers are with judiciary (supreme court, high court, and subordinate courts). The president holds his office for a fixed period, his functions and powers are enumerated in the constitution itself. The Parliament is competent to make any law subject to the provision of the constitution and there is no other limitation on its legislative power. The judiciary is independent in its field and there can be no interference with its judicial function either by the executive or by the legislature. The supreme court and high courts are given the powers of judicial review and they can declare any law passed by parliament legislature as ultra vires or unconstitutional. But the separation of powers is not defined in India completely. In parliamentary government the executive and the legislature are dependent on each other, the legislature not only controls the executive but also remains in control by the executive. There is no provision in the constitution itself regarding the division of the functions of government this is because some times an executive need to act like legislature to solves various matters and problems. When the functions of legislature are entrusted to executive by the legislature itself it is known as delegated legislature.
Legislative powers can validly be delegated to the executive within the permissible limits at the same times, there is inherent danger of abuse of the said powers by the executive authorities. So, there are certain controls and safeguard against the possible abuse of the legislative powers by the executive authorities. Exceeding the limits of powers authorized by legislative to executive and going beyond the delegated powers which causes the ultra vires
There are three main kinds of controls over executive.
1. JUDICIAL CONTROL -
Delegated legislations are not beyond the scope of judicial review. The validity of a delegated legislature can be challenged in a court of law, The judicial control further divided into two parts -
SUBSTANTIVE ULTRA VIRES: -
When a subordinate legislature goes beyond what the delegate is authorized to enact it is known as substantive ultra vires. There are certain circumstances where substantive ultra vires will apply. Those are -
a) Delegated legislation is inconsistent with parent act
b) Delegated legislation is inconsistent with general laws
c) Delegated legislation is unconstitutional
d) Delegated legislation is arbitrary, unreasonable, mala fide
e) Delegated legislature excludes judicial review
f) Delegated legislation retrospectively
PROCEDURAL ULTRA VIRES: -
When a subordinate legislation fails to comply, the procedural requirements prescribed by the legislature and parent act it is known as procedural ultra vires.
There are certain methods to check the procedural ultra vires those are-
a) Ante-natal (previous) publication
b) Post -natal (post) publication
c) Consultations – affected labour law or official consultation
d) Discussion or meeting of minds by two or more peoples
e) Making of draft rules by affected person
2. LEGISLATIVE CONTROL -
All the powers of delegated legislature are given by legislature itself, both delegating and the power to supervise and controlled is with legislature. In legislative there are two major committee 1. The Lok Sabha committee, 2. The Rajya Sabha committee. There two committees control the behaviours of delegated legislature.
3. OTHER CONTROLS -
Over and above judicial and parliamentary controls, sometimes other controls and safeguards are also provided. One of such safeguards against the abuse of delegated power is to properly and precisely limit the power of the delegate. The courts also should interpret the provisions of rules and regulations in such a manner as not to give blanket power to the executive authority.
Effects of ultra vires acts: -
An action which is ultra vires is without jurisdiction, null and void, and of no legal effect whatsoever. It has no legal leg to stand on. Once the court has declared that some administrative act is leally a nullity, the situation is as if nothing had happened. There is no question of estoppel against an ultra vires act. No question of acquiescence or waiver can be raised against an ultra vires act.
The validity of the delegated legislature can be challenged on the ground that it is ultra vires, the parent act and enabling status of any general law. It is an accepted principle that every governmental organ must be exercised strictly within the authority of law. the works of various governmental departments can be held valid only if it conforms exactly to the power which is granted.
Leading cases: -
In Nagendra Kumar v. Union of India, the supreme court observes that a parent act or delegating statute must be constitutional and valid. Every order made under statutory provision must not only be within the authority conferred by the statutory provision but must also stand the test of constitutionality. No one can have a right to make a thing and goes beyond the limits of the constitutional laws. According to lord Russel CJ. ‘parliament never intended to give authority to make such rules which are unreasonable and ultra vires’. Once parliament has entrusted the government with a delegated power, it is the duty of parliament to provides limited supervision of the resulting delegated legislation.
In D.C Wadhwa v. State of Bihar (1986) it was held that it is unconstitutional to promulgate ordinance, unless in exceptional circumstances. Ordinance themselves are an exception, the court noted. The primary authority to enact legislation is the legislature. In this case CJ. Bhagwati rightly states “if there are constitutional provisions inhibiting the constitutional authority from doing an act, such provisions cannot be allowed to be defeated by the adoption of any subtler fudge. That would be clearly a defame on the constitutional provisions.
In Chief Inspector of Mines v. karam Chand Thapar (1961) in the supreme court, Das Gupta J. observed that the true position appears to be that rules and regulations do not lose their character as rules and regulations even though they are to be of the same effect as if contained in the original act.
The aim of doctrine of ultra vires is to stop all those acts which are against the policy of law. The constitution is the supreme law of the land, every act, rules, regulations, bye-laws, notifications, or usages in the territory of India should be constitutional, if they are constitutional, they are valid and if they are not constitutional, they are void. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires, the power granted and on relevant consideration. All his decisions whether characterised as legislative, administrative, or quasi-judicial must be in harmony with the constitution and other law of the land. The constitution wants ultra vires acts to be reduced in the country and people should work according to judicial and social rules.
Lectures on administrative law book by – C.K. TAKWANI
Constitutional law of India book by – J.N.PANDEY
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