Private: Administrative Law Content
Doctrine of Ultra Vires
Doctrine of Ultra Vires means beyond the scope, power or authority of any company, corporation or statutory body. The term ‘Ultra Vires’ implies absence of capacity or power of the person to do any act. It is not necessary that an act to be ultra vires must be illegal; it may or may not be. An act is said to be ‘Ultra Vires’ when it is enacted in excess of the legislative power. A rule is Ultra Vires when it is beyond the rule-making power of the authority. It is the basic doctrine in Administrative law and the foundation of judicial power to control actions of the administration. When the power is conferred on the administrative body, the instrument conferring the power may itself provide for restriction on the exercise of the power. If administrative body goes beyond such restrictions imposed on it, in the exercise of power, it is treated Ultra Vires.
The supreme court of India in Uttar Pradesh Vs Renusagar power co. expressed”If the exercise power is in the nature of subordinate legislation, the exercise must conform to the provision of the statute. All the conditions of the statute must be fulfilled.”Yet in another case, Greater Bombay Municipal corp. Vs Nagpal printing Mills, the court emphatically stated that delegated legislation repugnant to, or inconsistent with, or in contravention of, or in excess of, or overriding the provisions of the parent Act is Ultra Vires.
The doctrine of Ultra Vires has two principles bases or aspects and the bases of doctrine of ultra vires are the method or approaches to control the delegated legislation by the judiciary.
- Substantive Ultra Vires
- Procedural Ultra Vires
- Substantive Ultra Vires
If the delegated legislation involves the defects of substance or if the exercise of any power will be limited by the substance of power i.e., what the administrative authority is empowered to do, it is called substantive Ultra vires. It means that the delegated legislation goes beyond the scope of authority conferred by the parent statute or by the constitution. It is the fundamental principle of law that a public authority cannot act outside the powers i.e. ultra vires. The doctrine refers to the extent; scope and range of power conferred by the parent action the concerned authority to make rules. To be valid a rule must fulfill two conditions, they are:
- It must conform to the provisions of statute under which it is framed; and
- It must also come within the scope and purview of the rule making power of the authority framing the rule.
If either of these conditions is not fulfilled, the rule would be void as parliament never intended to give authority to make such rules which are unreasonable and ultra vires. A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the following circumstances.
- Constitutionality of Parent act
Constitutionality of parent act plays a dominant role for delegated legislation under which it is made. If the parent act, which empowers the administration to form necessary rule, bye laws, regulations or any form of delegated legislation, itself unconstitutional or Ultra vires the constitution, delegated legislation made under it is necessarily bad and will be ipso facto invalid. The parent act may be unconstitutional on the ground breach of fundamental rights, other constitutional provisions and on the ground of excessive delegation.
The supreme court of Nepal under the constitution has the power to declare the inconsistent laws void either ab initio or from the date of its decision but mostly it declares the inconsistent laws void from the date of its decision by calculating their pragmatic values.
Imansingh Gurung Vs HMG] is the first landmark decision in which the full bench of the supreme court declared section 1(3)(d) o the Military act, 1959 (2016) inconsistent with Article 11(1) which guarantees the fundamental right to equality of a citizen. The military Act, 1959, in its third amendment inserted clause (d) in section 1(3) under which all civilians were made the subject matter of Act. This clause of the Act had imposed the military law on Iman singh Gurung who was civilian. He was sentenced to 8 years rigorous imprisonment by the court marital on charges of abetting ltd co. Bharat Gurung to commit an offence under section 45(b) of the military Act 1959. He was also debarred from the trial of an ordinary court and thus his guaranteed right to equality was infringed by the impugned section of the Act. The court declared such defective and discriminatory piece of enactment null and void with effect from the date of its decision.
- Delegated legislation ultra vires the constitution
Like the parent act delegated legislation can also be challenged on the ground of its constitutionality. Sometimes, parent act may not be formed unconstitutional but delegated legislation made under it may conflict with the constitution. The courts may be asked to consider the question of constitutionality of delegated legislation itself.
In Reena Bajracharya and others Vs HMG,The court declared that Rule 16.1.3 of RNAC Personnel Service Rules, 1974 null and void abinitio on the ground of ultra vires with the constitutional right to equality.
- Delegated legislation is ultra vires the parent act
The validity of delegated legislation can be questioned on the ground that it is ultra vires the parent act. It has become an accepted principle of law that the delegated exercise of legislative power must be exercised in conformity with the principal power or authority. If delegated legislation does not conform exactly to the power granted or if it is in direct conflict with any provision of Act, under which it is made, it can be held invalid. Rules whether made under the constitution or a statute, must be intra vires the parent law under which power has been delegated. Thus, delegated legislation, repugnant to or in excess of or overriding the provision of parent act is ultra vires.
In Advocate Bal Krishna Neupane Vs HMG, secretariat of the council of Ministers the court declared sub-rule 4(a),(b) and (c) of Rule 3 of citizenship Rules, 1992 void abinitio as it had fixed some additional grounds except the grounds determined under the constitution and citizenship act for the acquisition of citizenship without the delegation of legislative power. The court observed that a rule making body is not competent to frame rules without the authority of law. If the rules which are made to fulfill the objective of the Act, fix some additional grounds or criteria of acquisition citizenship without the delegation of legislative power, such rules or the criteria underlying therein are ultra vires the Act and therefore void.
- Delegated legislation Ultra vires the General rule
The validity of delegated legislation can be challenged on the ground that it is ultra vires the general law. It takes place, when the delegated legislation makes a law in force unlawful and unlawful act lawful.
In A.V Nachane Vs union of India, in this case the rules framed by union government under delegated authority by L.I.C with regard to bonus to class iv employees was held ultra vires since it supersedes the terms of Bonus settlement 1974.
Generally statute cannot be challenged on the ground of unreasonableness. But, in exceptional cases, it can be challenged on the ground of unreasonableness. Unreasonableness is an implied restriction on delegated legislation. It is presumed that legislature does not intend to confer power to make unreasonable rules. Therefore, such rules, which are not reasonable, may be declared ultra vires by the court. But unless a rule is manifestly unjust, capricious, inequitable or partial in operation it cannot be invalidated on the ground of unreasonableness.
If we observe the decision of supreme court, we see the cases like Keshav Bd Thapa, Dhrub Bhaktarki Vs Ministry of General Administration and others, Babu Ram poudel Vs HMG secretariat of the council of ministries, Sita Bista Keshtri Vs HMG, Ministry of Home affairs etc the petitioners have raised the voice against unreasonable restrictions imposed on their basic right by the law and supreme court has also very affectively taken the matter into concern but petitioner have challenged laws, either supreme or subordinate and begged before the court to invalidate the same on the ground of the principle of unreasonableness, as it is an implied restriction of any law. Therefore, the court has not utilized this principle in the real sense of the term.
- Mala fide
Mala fide means ‘bad faith’ or ulterior motive. Delegated legislation can be challenged on the ground of mala fide, if it has no relation to the purpose for which the law making power was delegated. But in practice, it is extremely difficult to substantiate these grounds before the court. For example, under section 3(1) of D.I.A the government promulgated the Gold control rules. These rules were challenged on the ground that they did not sub serve the purpose mentioned in section 3(2). It was argued that there must be some real and proximate connection between the rules and specified purposes. There is however, no Nepali case where a statutory rule has been held invalid on the ground of mala fide.
- Excessive Delegation
A statute which is invalid on account of excessive delegation, or delegated legislation which is ultra vires the statute, will not cease to be so merely because the legislature has made certain amendment to the statute not directly curing the defect.
If the Executive i.e. the delegate further delegates such power to any subordinate authority or agency it is called sub-delegation. The principle of sub-delegation is subject to criticism and not accepted, unless there is a provision express as implied, to that effect. Hence, the validity of an act under sub-delegation can be questioned ulta vires.
- Procedural Ultra Vires
If the administrative authority fails to follow required procedure prescribed by parent act or by the general rule, it is known as procedural ultra vires. To apply the doctrine of Ultra vires, the first question for the courts to decide is whether the provision in the act prescribing the procedure is mandatory or directory. Rules become invalid only in the case of non compliance with the mandatory procedure. Non compliance of directory procedure does not render them invalid. So, an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if directory enactment be obeyed or fulfilled substantially. Basically non compliance of following procedure declares delegated legislation void.
- Publication of delegated legislation
- Consultaton with export body or approval of an authority
In Prakash Shrestha Vs HMG, Prime Ministers and the office of the council of Ministers, The petitioner challenged, Bye-Law 21 and Bye Law 22(1) of the Nepal Electricity Authority Administrative personnel Bye Laws, 2050 as they were inconsistent with Art 11 of the constitution, which guarantees the right to equality of all citizens.
Court issued a directory order in the name of the electricity authority to necessarily perform the task of publication for the purpose of Bye Law 22 and 27(1) of the said Bye-Laws.