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Defined: The Doctrine of Extremely Vires

This article explains the intricacies as well as the concept of the Doctrine of Ultra Vires, written by Pooja Ganesh student of SASTRA Deemed University

Introduction

Intra-vires means “within the powers” and Ultra-vires means “beyond the powers”. The power to make laws, rules, and regulations and to legislate; are conferred with the legislative body. Over the years, the state functions have undergone many changes in the aspects of quantity and quality. So some of the legislative (law-making) functions are performed; by the executive body also. This type of legislation function by the executive body; is known as “delegated legislation”. The judicial review of such delegated legislation can be done at two stages; conferment stage and exercise stage.

In case, the discretionary power is exceeded then it will be considered as ultra vires. If the subordinate legislation falls outside the purview of the power conferred, then it is ultra vires to the constitution. If the action of the delegated legislation body affects the fundamental rights guaranteed to the people, then it is said to be ultra vires to the constitution. Ultra vires is an error apparent on the face of the record. The lack of jurisdiction of any delegated body forms the error on record. Some of the elements which are present in an ultra vires act:

  • Error or excess of Initial jurisdiction
  • Error or loss of jurisdiction on the way of proceedings or in the pending proceedings
  • Mala fide intention or improper motive
  • Mixed consideration or irrelevant considerations
  • An error apparent on the face of the record

The doctrine of ultra vires is frequently used; in the constitutional law, administrative law, and corporate law. It is applied in cases where the government bodies exceed their limit; or when the subordinate legislation crosses their legal authority. Also, in companies when legal persons go beyond their legal capacity, then the doctrine of ultra vires comes into play. In this article, the author deals with the role played by doctrine of ultra vires in the Administrative law and the Constitutional law.

Abuse of Powers by the Authority

The courts have developed effective ways to control the abuse of administrative functions. If a law crosses the discretionary power then it is held ultra vires and unconstitutional as per Article 14, Article 19, and other relevant provisions. Then the control mechanism can be at the initial stage of delegation or during the exercise of discretion. An act can become ultra vires when there is mala fide intention or improper purpose.

Mala fide

When an authority exceeds the power conferred due to the mala fide intention, that is to have a dishonest or corrupt intention, then such an act is considered as ultra vires. It is difficult to point out the motive, so the courts generally term them in a broad sense as the abuse or improper exercise of power. Mala fide intention does not imply only moral turpitude as a matter of law, in other words, it is said that the power conferred is used for indirect purpose without any nexus to the objective to be achieved and is completely foreign to the stated law.[1]

In C.S. Rowjee v. Andhra Pradesh State Road Transport Corporation[2], schemes to nationalize certain transport routes were initiated by the corporation. The Chief Minister gave directions only to specific routes and other routes were not selected because of the vengeance towards his political opponents. In the absence of an affidavit from the minister, it was held by the court that there was mala fide intention present in the part of the act done by the Chief Minister.

Improper purpose/consideration:

When the power conferred is exercised with a different purpose deviating from the actual purpose, then it is considered invalid. The improper purpose is wider than mala fide. The question of good or bad intention is not questioned here, only the purpose of the action is questioned. In Lal Kamal Das v. State of West Bengal[3], it was held that the power of ordering prevention detention cannot be used for simple theft of railway property. There should be a proper purpose to prosecute such a person in the criminal court.

If an administrative power is exercised by improper/irrelevant or extraneous consideration then such action is ultra vires and it will be quashed. The general terms and conditions of the statute decide that the considerations are relevant or irrelevant. The court struck down the impugned order and held that the “law and order” concept is not the same as the “public order” concept.[4] Sometimes there can be mixed considerations, so the court should apply the principle clearly.

Judicial Control

In administrative law, the doctrine of ultra vires forms the base. It questions the authority exercised by the various authorities. The court has to decide whether the actions are within the limit or exceeds the limit. The first step in the control mechanism of power is judicial control. Various questions have to be answered before applying judicial control:

Questions

  1. Whether there is any violation of fundamental rights or any procedural provision?
  2. Whether; the provisions of the parent Act are satisfied or the parent act has been violated?
  3. Whether the power of delegated legislation has been exceeded?
  4. Where the action conforms with the said procedural provisions?
  5. Whether the test of reasonableness is satisfied?
  6. Whether the action by the authority is arbitrary?

Once, these questions are answered then the control can be applied in places where there is an excess of power. If a parent act or legislation is declared as void and unconstitutional, then the delegated legislation is also considered as void and unconstitutional. It is the court’s decision about the scope of powers given to the delegated legislation.

If it goes beyond the scope of the parent act, then it is ultra vires. Also, the sub-ordinate legislation can be questioned for their action based on unreasonableness.[5] The court fails to apply judicial control in cases where the powers of delegated authority are not clear. If there is no precise limit imposed for the authority and the power given is in a broad sense[6], then it becomes difficult to apply the doctrine of ultra vires as they turn into an uncontrolled authority.

Parent Act and Delegation.

Article 13(2) of the Indian Constitution states that a law made by the state is held void if it abridges or takes away the fundamental rights conferred under Part III of the constitution. This Article makes it clear that law includes order, ordinance, bye-law or ay regulation or notification, etc. Article 245 limits the extent of powers conferred by Parliament and legislatures of states to make laws.

The laws made under Article 245 are subject to other constitutional provisions. In Chintaman Rao v. State of Madhya Pradesh[7], it was held that the parent act was unconstitutional as it allowed the Deputy Commissioner to prohibit the manufacture of bidis in few areas, which was a violation of Article 19(1) (g) of the constitution. Therefore, the order was held to be ultra vires and it was struck down.

The Parent act cannot delegate the essential functions to the subordinated delegated legislation. The subordinate delegated legislation should not be inconsistent with the parent act. There should be no conflict between the delegated legislation and the enabling legislation. A rule made by the parent act for ensuring the safety of passengers in ferry does not confer the subordinate delegated legislation to frame a rule to prohibit all private ferries. Therefore the court held that the rule was out of the scope of powers conferred by applying the doctrine ultra vires and hence void.[8]

In Tahir Hussain v. District Board Muzzaffar Nagar[9], the parent law allowed the District Board to frame bye-laws for public health and safety. The board framed a bye-law prohibiting the cattle market. The court held there was reasonable nexus and applying the ultra vires principle the scope of the delegation authority was exceeding the parent act.

The court held that the rule which imposed a bar on the people for enrollment in bar council of age 45 years as invalid and ultra vires.[10] A delegated body cannot sub-delegate further his power to another body as per the maxim “potestas non potest delegari”. Another important aspect is that a delegated legislation can be given a retrospective effect also. However, such power cannot be used in the cases of sovereign legislature[11], unless it is expressed by the State.

Case study on the Doctrine of Ultra Vires: Misuse of Section 144 of the Criminal Procedure Code

Many states are imposing Section 144 of the Criminal Procedure Code in the year 2020. Section 144 provides wide powers to the magistrate in issuing urgent emergency orders for restricting public gatherings. During the Delhi riots, the use of the provision was easily found.

The Delhi police have imposed orders under Section 144 without any powers conferred by law, they have misused the power beyond their limits. Most of the orders were issued by the Assistant Commissioner of Police (ACP) and Deputy Superintendent of Police (DCP). Under the Delhi police Act or the Criminal Procedure Code, no power is vested on the ACP or DCP to pass such orders. The orders under 144 can be issued only by Magistrate or Commissioner under few circumstances.

The state of Delhi follows a commissionerate-system that identifies the police as a separate body, but the Criminal procedure code is not based on any such system. They are not under the supervision of a magistrate. Certain Magisterial Powers were conferred by the Delhi Police Act on the senior police officers. Section 20(5) and 70(1) confers the powers of the executive magistrate upon certain senior police officers.

The two main things to be noted are that the powers of the District Magistrate is conferred only upon the Commissioner of Police and not upon the ACP or DCP. The second thing to be noted is that none of the provisions of the Delhi Police Act is about the appointment of the executive magistrate, therefore only the powers of the executive magistrate are conferred.

A person appointed as an executive magistrate and a person; empowered with the powers of an executive magistrate is different. ACP and DCP are not appointed as an executive magistrate. They cannot pass an order under Section 144 of the Criminal procedure code. If they pass any orders under Section 144 of the Criminal Procedure Code without the inherent powers; then it is considered as ultra vires and illegal.

Conclusion

It is observed that ultra vires have played a crucial role in the administrative and constitutional law of the country. It acts as a control mechanism when the subordinate authority goes beyond the limits of its powers or when it is in conflict with the parent act. Due to the mala fide or improper intention, a person tries to cross his limits and corrupts the power conferred upon him. With the help of judicial review and control, the basic features of the constitution are protected.

An aggrieved party can approach the court under Article 32, 136, and 226 of the constitution. The court may quash the impugned order which is ultra vires. The government enactments should comply with the rule of law, this should be under the supervision of a judicial body. The doctrine of ultra vires has helped the judicial body immensely in regulating the functioning of various authorities in our government.

[1] Jaichand Lall Sethia v. State of West Bengal, A.I.R. 1967 S.C. 483.

[2] C.S. Rowjee v. Andhra Pradesh State Road Transport Corporation, A.I.R. 1964 S.C. 962.

[3] Lal Kamal Das v. State of West Bengal, A.I.R. 1975 S.C. 753.

[4] Dr. Ram Manohar Lohia v. State of Bihar, A.I.R. 1966 S.C. 740.

[5] Employees Welfare Association v. Union of India, 1989 (4) S.C.C. 187.

[6] State of Tamil Nadu v. P.Krishanmurthy, (2006) 4 S.C.C. 517.

[7] Chintaman Rao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118.

[8] Chandra Bali v. Rex, A.I.R. 1952 All 795.

[9] Tahir Hussain v. District Board Muzzaffar Nagar, A.I.R. 1954 S.C. 630.

[10] Indian Council of Legal Aid and advice v. Bar Council of India, A.I.R. 1995 S.C. 691.

[11] State of Madhya Pradesh v. Tikam Das, A.I.R. 1975 S.C. 1429.

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