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September 25th, 2011 |

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Procedural deviance of delegated legislation from parent act

PROCEDURAL DEVIANCE OF DELEGATED LEGISLATION FROM PARENT ACT

INTRODUCTION

Ultra vires literally means, ‘beyond powers’. Ultra vires has two meanings: (1) substantive ultra vires where a decision has been reached outside the powers conferred on the decision taker; and (2) procedural ultra vires where the prescribed procedures have not been properly complied with. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction.[1]

An ultra vires act is one beyond the purposes or powers of a corporation. It is to be mentioned that all ultra vires actions are void but all void actions are not ultra vires. An erroneous act is void but not ultra virus. The law of ultra vires does not apply to the acts done by private citizens but only to those done by authorities or persons clothed with legal powers. Powers enables an authority to do what would otherwise be illegal or ineffective.[2]

DelegateD Legislation

Meaning

Legislation by the executive branch or a statutory authority or local or other body under the authority of the competent legislature is called Delegated legislation[3]. It permits the bodies beneath parliament to pass their own legislation .It is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament.

Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.[4]

Importance

There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

Criticisms[5]

Delegated legislation is not without its criticisms. The main defects of delegated legislation are as follows:-

It has been suggested that by having delegated legislation to make and amend laws.
It lacks democracy as too much delegated legislation is made by unelected people.
Delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament.
Delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this result in the public not being informed of the changes to law. There has also been concern expressed that too much law is made through delegated legislation.

Parent Act

Meaning

When a statute confers some legislative powers on an executive authority and the latter further delegates those powers to another sub-ordinate authority or agency, it is called ‘sub-delegation’.[6]

For instance, the Prevention of Terrorism Act (POTO), 2002 confers rule making power on the Central Government which in turn is authorized to confer powers on the State government, Administrator of a Union Territory, an officer of Central Government not below the rank of a Joint Secretary or an officer of the State Government not below the rank of a district Magistrate. Similarly, The Essential Commodities Act, 1955 empowers the Central Government to make rule under the Act. The Act also authorizes the Central government to delegate powers to its officers, to the State Governments and to theirs officers. The state Government or the officers concerned can further sub-delegate the powers.[7]

Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go through many stages. Thus the statue which authorise subordinate legislation is known as the parent act or enabling act.[8]Sometimes the parent act is worded in wide terms and delegated legislation is in general terms for detailed application.

Sub-delegated legislation must not offend the Doctrine of Delegatus Non Potest Delegare which means a delegated power cannot further delegated. Therefore, an administrative or other statutory authority entrusted with subordinate law-making power cannot delegate that power to another authority except in so far as such delegation may itself have been authorized by the legislature. Thus, where power to issue directions was given to the Pollution Control Board, the member-Secretary cannot issue such directions unless power is delegated to him by the board.[9]

MEANING OF DOCTRINE OF ULTRA VIRES

The word ‘Ultra’ means beyond and ‘Vires’ means powers. A simple meaning of this term is ‘beyond powers’; in a strict sense, therefore, the expression is used to mean any act performed in excess of powers of the authority or the person who performs the act.[10]

Judicial control of delegated may take different forms. There is rule of Constitutionality of delegated legislation. Doctrine of Ultra vires is another method of such control the courts have formulated yet another doctrine in which they search for legislative policy or guidance for a valid delegation of legislative power.[11]

In a broader sense the ultra vires principle provided the justification for constraints upon the way in which the power given to the administrative agency was exercised. The agency must comply with rules of fair procedure, it must exercise its discretion to attain only proper and not improper purposes, it must act on relevant and not irrelevant considerations and it must not act unreasonably.[12]

As per Halsbury’s Laws of England, “Ultra vires” in its proper sense denotes some act or transaction on the part of a corporation which although not unlawful or contrary to public policy if done by an individual is yet beyond the legislative powers of the corporations defined by the statue under which it is formed, or the statues which are applicable to it, or by its character or memorandum of association.[13]

In V.M. Kurian v .State of Kerala[14], when the State Government of Kerala granted exemption from the operation of the Kerala building Rules 1984 for the construction of a high rise building in Cochin without the recommendation of greater Cochin Development authority and the Chief Town Planner as provided in the rules, the Supreme Court held that the order in ultra vires.

ApplicabilitY[15]

Although the doctrine of ultra vires was born in English Courts is also followed in India, there is however, some difference between the ambit of applicability of the laws as it prevails in the U.K. and India. in the U.K. Parliament is supreme and, therefore the courts do not have any authority to entertain any question raising the legality of any act made by the parliament. The situation is quiet different in India where the Constitution alone is supreme.

The Constitution is the law of laws, the paramount and the supreme law of the country. In Keshvananda Bharti Case[16] the Supreme Court discusses the basic feature of the Constitution for the first time and holds that the parliament cannot enact any legislation to alter the basic features of the Constitution. The High Courts and the Supreme Court in the country have since then decided many questions regarding the Constitutional validity of many Acts made by legislature and struck down either the whole or parts of those declaring them to be ultra vires of the Constitution. The ambit of applicability of the law of ultra vires in India is thus very wide as in the U.S.A. the doctrine is applicable to an act done not only by the State but also Agents or Instrumentalities, Local Governments, Local Authorities, Corporation, Commissions, tribunals, Companies, Clubs etc i.e. to an authority clothed with legal powers to do act. The doctrine has helped the development of administrative law. Whenever any Executive, administrative quasi-judicial authority or the legislature contravenes, ignores or bypasses in manner which is colourable or otherwise, any provision of the Constitution, statute, principles of natural justice or acts in a grossly arbitrary manner, the doctrine of ultra vires is attracted.

Judge-Made Law- The law of ultra vires, like the law of natural justice, is not an embodied law since Court powers cannot be circumscribed. It is a judge-made law arising from judicial decisions alone. Although the law has not been provided for the legislature directly, it has assumed tremendous importance in the light of the development of Constitutional law and enactment of numerous socio-economic laws in India.

Procedural Ultra vires

When a subordinate legislation fails to comply with procedural requirements prescribed by the parent act or by general law, it is known as procedural ultra vires.[17] When the power is conferred on an administrative body, the instrument conferring the power may itself provide for restrictions on the exercise of the power. Such restriction may be procedural (ie how the power is to be exercised). Even though the statue conferring the powers does not in terms limit its operation, the courts will impose limits by reference to principle of reasonableness and fairness.[18] In recent times, procedural fairness has emerged as a unique check on the executive and courts may read such procedural fairness in delegated legislation. Section 59 of the Mines Act, 1952 empowers the Central Government to frame regulation which is referred to the Mining boards in draft form for reporting about their expediency. The Board is to be given reasonable opportunity. Failure to comply with this procedure is ultra vires.[19] In case or procedural ultra vires, the court may quash the delegated legislation depending whether the procedure is held to be directory or mandatory. The procedural defects cannot be regarded as fundamental or as invalidating the imposition of tax by a local body where the tax proposal was not published in the prescribed manner. If substantial compliance is made, the omission would amount only as a mere irregularity and not ultra vires.[20]

In short, an administrative authority may be exercising a power for an authorized purpose but, if it fails to follow a required procedure, its actions will be open to challenge. The authority here may ‘doing the right thing’ but it is doing it ‘in the wrong way’. This is the concept of ‘procedural ultra vires‘.

Requirements

The following two procedural requirements may now be discussed:-

1. Publication

It is a fundamental principle of law that ‘ignorance of law is no excuse’ (ignorantia juris non excusat). But there is also another equally established principle of law that the public must have access to the law and they should be given an opportunity to know the law. The very justification for the basic maxim is that the whole of our law, written or unwritten, is accessible to the public-in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.

Jain and Jain rightly stated: “it is essential, therefore, that adequate means are adopted to publicize delegated legislation so that people are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary.”

In B.K.Srinivasan v. State of Karnataka[21], Outline Development Plan Zonal Regulations were not published as required by law. The notice, however, was published in Official Gazette. The plan as well as Regulations was available for inspection at the Office of the Local Authority. Section 76-J of the parent Act provided that any defect in publication valid and action in consonance with law.

2. Consultation

Consultation is one means by which public participation can be achieved in administrative action whether in relation to the making of policy, or in the making of actual decision. It is not the only method of involving the public in administrative policy and decision making: the public inquiry is an important example of the wider involvement of the public in many area of decision-making. Consultation is usually required either where a parson or a group may be affected by some administrative action or where they have some expert contribution to make to proposed administrative action. The statutory machinery for consultation tends to be less formal than that relating to the public inquiry and it is often in the case that the administrative agency has discretion as to who is consulted.[22]

In New India Industrial Corporation v. Union of India[23], Wad, J. States: “Consultation of interest infuses law-making process with democratic forms, particularly in what is called Bureaucratic Legislation. Apart from this, it is an form administrative necessity. Effective and meaningful administrative is impossible without imaginative administrative process. If the citizens are to receive the advantage of any beneficent measures of the administrative on, the administrative process should be such that the benefit reaches the citizen in full measure and with expedition.”

In L & T McNeil Ltd v. Govt. of T.N.[24], the Apex Court held that before issuing notification abolishing contract labour, State Advisory board should be consulted. Though ‘consultation’ does not mean ‘concurrence’, the views of the Board would indeed assist the government in reaching a conclusion one way or the other. The Government, however, is not bound by the views of the Board.

On the other hand, in Banwarilal v. state of Bihar[25], the Supreme Court held that the provision under Section 59 of the Mines Act requiring consultation with the Mining Boards by the Central Government before framing regulation was mandatory.

Substantive ultra vires

When an act of legislature enacts in an excess of power, conferred on the legislature by the Constitution, the legislation is said to be ultra virus the Constitution. On the same principle, when a subordinate legislation goes beyond what the delegate is authorized to enact, it acts ultra vires.[26] This is known as substantive ultra vires.

Substantive ultra virus means that the delegated legislation goes beyond the scope of the authority conferred on it by the parent statute or by the Constitution. It is a fundamental principle of law that a public authority cannot act outside the power. i.e. ultra virus, and it has been rightly described as the ‘central principle’ and ‘foundation of large part of administrative law’. An act which, for any reason, is in excess of power is ultra virus.

The first requirement is to ascertain the meaning of the empowering Act, the second is to examine the breadth of the regulation or decision purportedly made under it, and the third is to decide whether the latter is authorised by the former.

One relatively straightforward example is London country Council v. Attorney General.[27] In this case the private bus companies in London succeeded in challenging the council’s right to run bus services, when it was empowered by statue to work only ‘tramways’. The House of Lords reiterated that the council had no general powers to do anything; it could only conduct activities that its governing Act specifically and clearly authorized. It made no difference that the council was given general powers in relation to the administration of the city- those powers were restricted to matters within the scope of its Act.

In R v. Secretary of State for Education and Employment, ex parte National Union of Teachers, the High Court determined that an SI concerning teachers’ pay and appraisal arrangements went beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was declared to be ultra vires on substantive grounds.

This would seem to be simple proportion, although the court was obliged to argue that the bus services could not be regarded as incidental to tram services. So, activities may be valid if they are regarded as necessarily incidental to the powers.[28]

This principle has even been adopted in India.

Enabling act is ultra vires the Constitution: If the statute under which legislative power have been delegated is itself unconstitutional, then the delegated legislation originating from that statute will also be unconstitutional. Unconstitutionality may either be due to excessive delegation or breach of a fundamental right or any other Constitutional provision. For instance, if a statute contains a delegation clause involving the abridgement of fundamental rights, it is ultra vires the Constitution. Similarly, if a state legislature delegates the power to make rules on a subject falling in the union list, it is clearly beyond the powers of the state legislature and hence unconstitutional.

In Chintamon Rao v State of M.P[29], the enabling empowered the Collector to make regulations for regulating or prohibiting the manufacture of bidis during the agricultural season. The purpose of this provision was to induce the laborers to engage in agricultural operations during the season and thus to improve production. The collector totally prohibited the manufacture of bidis during the agricultural season with a view of diverting the entire labour in to the agricultural sector. The statutory provision was struck down by the Court as it amounted to an unreasonable restriction upon the fundamental rights to carry on an occupation guaranteed by Art. 19 (1) (g) of the Constitution. Subordinated legislation was also held invalid because the enabling provision itself was unconstitutional.

Delegated Legislation Unconstitutional- The Supreme Court has in a number of cases held that though a law might not be unconstitutional, subordinate legislation made there under could still be challenged as ultra vires the Constitutional, because the law could not be presumed to authorize anything unconstitutional. Thus in Dwaraka Prasad v. State of U.P[30], a few provisions of the U.P. Coal Control Order, 1953, made under sec. 3(2) of the Essential Supplies Act, 1946, were declared ultra vires as infringing the fundamental right of freedom to carry on trade or business guaranteed by Art. 19(1)(g).

In Air India v. Nergesh Meerza[31], a regulation framed by Air India providing termination of services of an Air Hostess on her first pregnancy as held to be extremely arbitrary, unreasonable, and abhorrent to the notions of a civilized society and interfering with ordinary course of human nature. It is “not a disability but one of the natural consequences of marriage and is an immutable characteristic of marries life”.

In Indian council of Legal Aid & Advice v. Bar council of India[32], a rule framed by the Bar Council of India barring entry of persons who have completed 45 years of age from enrolment as advocates was held arbitrary and unreasonable. But a rule requiring compulsory wearing of helmet by persons driving two wheelers could not be held arbitrary, discriminatory or imposing unreasonable restriction on the fundamental right guaranteed by Article 19 of the Constitution.[33]

CONCLUSION

In administrative law, an act may be judicially reviewable “ultra vires” in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects. Broad “ultra vires” applies if there is an abuse of power or a failure to exercise an administrative discretion either doctrine may entitle a claimant to various prerogative writs, equitable remedies or statutory orders if they are satisfied.

The doctrine of ultra vires played an important role in the development of corporate powers. Though largely obsolete in modern private corporation law, the doctrine remains in full force for government entities

The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction.

The doctrine of substantive ultra vires is a fundamental principle of law that a public authority cannot act outside the power. i.e. ultra virus, and it has been rightly described as the ‘central principle’ and ‘foundation of large part of administrative law’

On the whole, judicial review of delegated legislation is more of symbolic value rather than much of practical value as a control mechanism over delegated legislation. To make judicial control more efficacious it is necessary that delegating legislation does not confer power in two broad and generalized languages. In such case the court may find extremely difficult to hold a rule as falling outside the scope of power delegated. This is what is envisaged by the doctrine of excessive delegation. In that case, delegated legislation will be ultra vires if it goes beyond basic policy underlying the Parent Act passed by the legislature.

[1] Available on www.answes.com/topic/ultravires visited on June 17, 2011.

[2] B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 1.

[3]K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication) 2006, p. 43.

[4]Available at http://www.lawteacher.net/english-legal-system/resources/delegated-legislation.php visited on

June 18, 2011.

[5]Available on http://www.lawteacher.net/english-legal-system/resources/delegated-legislation.php visited on

June 18, 2011.

[6]C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 102.

[7]K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 43.

[8]K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 43.

[9]Animal Feeds Dairies etc. v. Orissa State, AIR 1995 Ori. 84.

[10] B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 1.

[11] S.P. Sathe, Administrative Law, (Nagpur: LexisNexis Butter Worths Wadhwa), 2008, p 387.

[12]P.P. Craig, Administrative Law, (London: Sweet and Maxwell Limited), 2003, p 5.

[13]K.C. Joshi, An Introduction to Administrative Law, (Allahabad: Central Law Publication), 2006, p 65.

[14](2001) 4 SCC 215.

[15]B.C. Sarma, The Law of Ultra vires, (New Delhi: Eastern Book Company), 2004, p 10.

[16]Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461.

[17]C.K.Takwani, Lectures on Administrative Law, (Lucknow: Eastern Book Company), 2008, p 143.

[18]Available at http://books.google.co.in/ visited on June 13, 2011.

[19]Banwaru Lal v. State of Bihar, AIR 1961 SC 58.

[20]Sitapur Municipality v. Prayag Narain, AIR 1970 SC 58.

[21]AIR 1987 SC 1059.

[22]Available at http://books.google.co.in/ visited on June 16, 2011.

Procedural Deviance of Delegated

Legislation from Parent Act

Submitted by: Keli Vakil

INTRODUCTION

Ultra vires literally means, ‘beyond powers’. Ultra vires has two meanings: (1) substantive ultra vires where a decision has been reached outside the powers conferred on the decision taker; and (2) procedural ultra vires where the prescribed procedures have not been properly complied with. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction.[1]

An ultra vires act is one beyond the purposes or powers of a corporation. It is to be mentioned that all ultra vires actions are void but all void actions are not ultra vires. An erroneous act is void but not ultra virus. The law of ultra vires does not apply to the acts done by private citizens but only to those done by authorities or persons clothed with legal powers. Powers enables an authority to do what would otherwise be illegal or ineffective.[2]

DelegateD Legislation

Meaning

Legislation by the executive branch or a statutory authority or local or other body under the authority of the competent legislature is called Delegated legislation[3]. It permits the bodies beneath parliament to pass their own legislation .It is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament.

Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.[4]

Importance

There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

Criticisms[5]

Delegated legislation is not without its criticisms. The main defects of delegated legislation are as follows:-

It has been suggested that by having delegated legislation to make and amend laws.
It lacks democracy as too much delegated legislation is made by unelected people.
Delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament.
Delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this result in the public not being informed of the changes to law. There has also been concern expressed that too much law is made through delegated legislation.

Parent Act

Meaning

When a statute confers some legislative powers on an executive authority and the latter further delegates those powers to another sub-ordinate authority or agency, it is called ‘sub-delegation’.[6]

For instance, the Prevention of Terrorism Act (POTO), 2002 confers rule making power on the Central Government which in turn is authorized to confer powers on the State government, Administrator of a Union Territory, an officer of Central Government not below the rank of a Joint Secretary or an officer of the State Government not below the rank of a district Magistrate. Similarly, The Essential Commodities Act, 1955 empowers the Central Government to make rule under the Act. The Act also authorizes the Central government to delegate powers to its officers, to the State Governments and to theirs officers. The state Government or the officers concerned can further sub-delegate the powers.[7]

Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go through many stages. Thus the statue which authorise subordinate legislation is known as the parent act or enabling act.[8]Sometimes the parent act is worded in wide terms and delegated legislation is in general terms for detailed application.

Sub-delegated legislation must not offend the Doctrine of Delegatus Non Potest Delegare which means a delegated power cannot further delegated. Therefore, an administrative or other statutory authority entrusted with subordinate law-making power cannot delegate that power to another authority except in so far as such delegation may itself have been authorized by the legislature. Thus, where power to issue directions was given to the Pollution Control Board, the member-Secretary cannot issue such directions unless power is delegated to him by the board.[9]

MEANING OF DOCTRINE OF ULTRA VIRES

The word ‘Ultra’ means beyond and ‘Vires’ means powers. A simple meaning of this term is ‘beyond powers’; in a strict sense, therefore, the expression is used to mean any act performed in excess of powers of the authority or the person who performs the act.[10]

Judicial control of delegated may take different forms. There is rule of Constitutionality of delegated legislation. Doctrine of Ultra vires is another method of such control the courts have formulated yet another doctrine in which they search for legislative policy or guidance for a valid delegation of legislative power.[11]

In a broader sense the ultra vires principle provided the justification for constraints upon the way in which the power given to the administrative agency was exercised. The agency must comply with rules of fair procedure, it must exercise its discretion to attain only proper and not improper purposes, it must act on relevant and not irrelevant considerations and it must not act unreasonably.[12]

As per Halsbury’s Laws of England, “Ultra vires” in its proper sense denotes some act or transaction on the part of a corporation which although not unlawful or contrary to public policy if done by an individual is yet beyond the legislative powers of the corporations defined by the statue under which it is formed, or the statues which are applicable to it, or by its character or memorandum of association.[13]

In V.M. Kurian v .State of Kerala[14], when the State Government of Kerala granted exemption from the operation of the Kerala building Rules 1984 for the construction of a high rise building in Cochin without the recommendation of greater Cochin Development authority and the Chief Town Planner as provided in the rules, the Supreme Court held that the order in ultra vires.

ApplicabilitY[15]

Although the doctrine of ultra vires was born in English Courts is also followed in India, there is however, some difference between the ambit of applicability of the laws as it prevails in the U.K. and India. in the U.K. Parliament is supreme and, therefore the courts do not have any authority to entertain any question raising the legality of any act made by the parliament. The situation is quiet different in India where the Constitution alone is supreme.

The Constitution is the law of laws, the paramount and the supreme law of the country. In Keshvananda Bharti Case[16] the Supreme Court discusses the basic feature of the Constitution for the first time and holds that the parliament cannot enact any legislation to alter the basic features of the Constitution. The High Courts and the Supreme Court in the country have since then decided many questions regarding the Constitutional validity of many Acts made by legislature and struck down either the whole or parts of those declaring them to be ultra vires of the Constitution. The ambit of applicability of the law of ultra vires in India is thus very wide as in the U.S.A. the doctrine is applicable to an act done not only by the State but also Agents or Instrumentalities, Local Governments, Local Authorities, Corporation, Commissions, tribunals, Companies, Clubs etc i.e. to an authority clothed with legal powers to do act. The doctrine has helped the development of administrative law. Whenever any Executive, administrative quasi-judicial authority or the legislature contravenes, ignores or bypasses in manner which is colourable or otherwise, any provision of the Constitution, statute, principles of natural justice or acts in a grossly arbitrary manner, the doctrine of ultra vires is attracted.

Judge-Made Law- The law of ultra vires, like the law of natural justice, is not an embodied law since Court powers cannot be circumscribed. It is a judge-made law arising from judicial decisions alone. Although the law has not been provided for the legislature directly, it has assumed tremendous importance in the light of the development of Constitutional law and enactment of numerous socio-economic laws in India.

Procedural Ultra vires

When a subordinate legislation fails to comply with procedural requirements prescribed by the parent act or by general law, it is known as procedural ultra vires.[17] When the power is conferred on an administrative body, the instrument conferring the power may itself provide for restrictions on the exercise of the power. Such restriction may be procedural (ie how the power is to be exercised). Even though the statue conferring the powers does not in terms limit its operation, the courts will impose limits by reference to principle of reasonableness and fairness.[18] In recent times, procedural fairness has emerged as a unique check on the executive and courts may read such procedural fairness in delegated legislation. Section 59 of the Mines Act, 1952 empowers the Central Government to frame regulation which is referred to the Mining boards in draft form for reporting about their expediency. The Board is to be given reasonable opportunity. Failure to comply with this procedure is ultra vires.[19] In case or procedural ultra vires, the court may quash the delegated legislation depending whether the procedure is held to be directory or mandatory. The procedural defects cannot be regarded as fundamental or as invalidating the imposition of tax by a local body where the tax proposal was not published in the prescribed manner. If substantial compliance is made, the omission would amount only as a mere irregularity and not ultra vires.[20]

In short, an administrative authority may be exercising a power for an authorized purpose but, if it fails to follow a required procedure, its actions will be open to challenge. The authority here may ‘doing the right thing’ but it is doing it ‘in the wrong way’. This is the concept of ‘procedural ultra vires‘.

Requirements

The following two procedural requirements may now be discussed:-

1. Publication

It is a fundamental principle of law that ‘ignorance of law is no excuse’ (ignorantia juris non excusat). But there is also another equally established principle of law that the public must have access to the law and they should be given an opportunity to know the law. The very justification for the basic maxim is that the whole of our law, written or unwritten, is accessible to the public-in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.

Jain and Jain rightly stated: “it is essential, therefore, that adequate means are adopted to publicize delegated legislation so that people are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary.”

In B.K.Srinivasan v. State of Karnataka[21], Outline Development Plan Zonal Regulations were not published as required by law. The notice, however, was published in Official Gazette. The plan as well as Regulations was available for inspection at the Office of the Local Authority. Section 76-J of the parent Act provided that any defect in publication valid and action in consonance with law.

2. Consultation