Ultra vires

The term 'ultra vires' means not authorised by law, void: "Acting ultra vires and acting without jurisdiction have essentially the same meaning although in general term "vires" has been employed when considering administrative decisions and subordinate legislative orders, and "jurisdiction" when considering judicial decision or those having a judicial flavour", - so says DeSmith, Woolf and Jowell: Judicial Review of Administrative Action.
The term is used in relation to a citation. However, not restricted to the same, it is used to convey an expression of beyond, in excess of powers, outside one's authority. At times it is used to identify actions by a statutory organisation or authority that exceeds the powers it has in terms of its constitution, delegated legislation, charter or founding document eg Memorandum of Association of a Company. Often it is referred or attributed to rather loosely, not exactly in terms what the concept or meaning of the word may be.
According to Steven H. Gifis' "Law Dictionary" 'Ultra vires': "The term applies especially to an action of a corporation which is beyond the powers conferred upon it by its charter, or by the statute under which it was created................ Ultra vires activities of a corporation may give rise to an action quowarranto by the state Attorney General to forfeit the corporation's charter of incorporation."
The term ultra vires is ably summed by Ilyas Khan in his "Legal Terms and Phrases" with the following words: "The term 'ultra vires' simply means beyond power or lack of power. The act is said to be ultra vires, when it is in excess of the power of the person or authority doing so." "The term ultra vires signifies an act done in excess of powers, beyond powers or lack of powers. The concept is distinct from 'illegality'. Everything that is not warranted by law is illegal. The word illegal refers to that quality which makes the act itself contrary to law. The term ultra vires connotes the capacity or power of the person to do that act. In order for an act to be ultra vires it is not necessary that it must also be illegal. An act may be illegal because it is prohibited by law. The essence of the principle of ultra vires is that the act is done in excess of the powers possessed by the person in law;"
Rules made in terms of a statute have the same force as provision of a law. They have the same effect as if contained in a statute, promulgate by the President or a Governor or passed by legislature. The authority to make rules flows from conferment of discretionary powers upon the executive.
To cater social, economic, commercial and benefactory roles of the state, diverse legislations, not necessarily regulatory or developmental, travel to the statute's book. The obvious to expand with such legislations are delegations through making of rules or other pronouncements.
Rules and regulations under statutory empowerments are support legislations. Validly made these have the command as an enactment of the legislative body. Rules and regulations, which do not have statutory force are administrative instructions. A subordinate legislation is required to be juxtaposed with general purposes of the statute. If reconciliation between the statute and the rules made thereunder lead to the conclusion that the subordinate legislation is irreconcilable with the main statute, the subordinate legislation should give away. The rules or the sub-ordinate legislation shall be ultra vires the rule making authority.
An administrative instruction cannot be treated as a rule. A manual contains organisational rules relating to activities of the organisation. Although issued according to a statute, it does not have the force of law because neither it has a statutory origin nor the same is issued in terms of a particular provision in a law. When a rule framed by the Commissioner authorised the Deputy Commissioner to devise his own system of sanitation and conservancy, the authorisation will be ultra vires on the ground that the parent law authorised the Commissioner to make appropriate rules on the subject. Subordinate legislation by a sub-delegatee in the absence of an enabling statutory provision would be ultra vires.
A delegatee cannot have power more than the delegator. Conferment of rule making power by a statute does not empower making rules beyond scope of the enabling law or power of the delegator. The court may strike down the irrelevant or inapplicable part of the rule(s) on the ground of their being ultra vires, leaving the rest in tact. The concept of 'ultra vires' has appeared on the horizon as a powerful tool in the hands of jurists. In the wake of the state acquiring larger powers through diverse legislations, this appeared 'needed' to check transgressions of powers by state functionaries.
Unless specifically permitted by the statute, authority conferred by a statute can not be delegated to another person. Discretion available to a committee can be exercised by members of that committee in concert. Members can not apportion between them powers of the committees. Pursuant to apportionment, one of the committee members can not exercise the powers. Doing so would be ultra vires. Similarly, if mandated by the statute is fulfilling certain conditions and when the specified conditions are not fulfilled, emission of an order will be ultra vires. Unless directed by the statute otherwise, the government can not be arbiter regarding fulfilling the prescribed conditions.
Statutory rules or delegations under a law can allow doing things within the pursuit of the law. In Vasamble Maganlal vs. State of Bombay, SCR 341, AIR 1961 the Indian Supreme Court has held that, in every case, it would be necessary to consider relevant provisions of the law in relation to the delegation.
When a power to appoint a person to fill any office or execute any function is conferred by a statute, unless it is expressly provided, any such appointment may be made by name or by virtue of office, so provides the General Clauses Act. A federal legislation, which, in substance, is in respect of matters within the competence of a provincial law maker (provincial assembly), is not ultra vires due to its possible effect beyond the territorial limit of a province. It has been held by the Indian Supreme Court that validity of such legislation depends on the sufficiency of the purpose it used for the territorial connection. In this connection, "N. S. Bindra's Interpretation of Statutes" (9th Ed.) - Page No 1230, reads:
""Sufficiency of territorial connection", said SR Das CJ, "involves a consideration of two elements: (a) the liability sought to be imposed must be real, not illusory; and (b) the liability sought to be imposed must be pertinent to that connection"." In Rohtas Industries vs. Agarwal AIR 1969 SC 707, the Supreme Court of India has laid down implied limitations on the exercise of every power conferred by a statute (Source: Interpretation of Statutes by Markandy Katju). These are:
1. The authority must not misdirect itself in law. It must not frustrate object of the statute.
2. The authority must not take into consideration irrelevant matters, nor must it omit relevant matters from consideration.
3. The authority must act honestly and reasonably.
On validity of machinery provisions where the charging section is intra vires, Markandey Katju, quotes from Cibatul Ltd. v. Union of India 1979 ELT 407 Guj: "The principle that if the charging section is intra vires the machinery provision cannot be ultra vires, is subject to the exception that the machinery section does not stretch its long arms to pick up forbidden fruit".
An act may be both legal and illegal. In broad sense, there is no difference between an illegal act and an ultra vires act. Both illegality and ultra vires are synonymous. Both are void. This is end result. However, the two are different. Illegal is an act which is against law. Ultra vires traces root of law, being power of the person to act in a particular manner. Thus an illegal act need not, in abstract, be classified ultra vires and vice versa. Following tests may go to distinguish between an illegal act and ultra vires:
1. An ultra vires act may be legal in the sense that no wrong is committed. An illegal act is wholly unwarranted by law.
2. An ultra vires act can turn intra vires if necessary power is later conferred by law. A later act may ratify and validate an ultra vires act. An illegal act cannot be made legal.
3. Focus on the issue of ultra vires is whether the act was done in excess of legal power. Question of jurisdiction is not involved. Issue of jurisdiction is involved in the determination of illegality.
4. Ultra vires is Judge-made law. Illegality is creation of law made by the legislature.
5. Ultra vires is exemplified by power and legal competence to do an act. Illegality refers to violation of law through an action.
6. Ultra vires arises from the infirmity of legal power conferred on the person doing the relevant act. Illegality emanates / travels from offence to law.
7. Ultra vires concerns act(s) of person(s) with powers - express or implied, under the law, to do the things. Illegality is associated with / to an act done by a person.
8. Ultra vires are acts not prohibited by law but not permitted by the statutory provisions conferring relevant powers. Illegality applies to acts not accepted by law framed by the legislature.
9. Even though in full compliance of the statute in terms of which it is made, ultra vires a delegation can be. Such indirect 'ultra vires property acquisition' the sub-ordinate legislation may come to have in the event of the statute, under which it is made, turning ultra vires constitution of the state.
There may be a situation in which a delegation may be intra vires the statute under which it is made. In keeping with provisions of the law, the same may have been validly delegated. But the relevant law under such delegation exists is found ultra vires, ultra vires constitution of the state. In this instance invalidity of the delegated statute shall turn the delegation, the relevant statute, ultra vires. Lawfulness or effectiveness can not spring from lawlessness, not from ultra vires. Thus when a source is unlawful, an authority or a rule, delegation, subsequent legislation, although in keeping with the law - but subsequently found to be violative of the state's constitution, the offspring ie the sub-ordinate legislation shall be ultra vires. The High Court of Sindh in C.P. D - 2123 of 2011 of 22nd February, 2013, ruled:
"...... we uphold the second ground urged by learned counsel for the petitioners. Section 3A that had been inserted into the 2005 Act in 2007 was ultra vires the Constitution as being an excessive and impermissible delegation of legislative power. It was void ab initio, a nullity in law and of no legal effect. It necessarily follows that the impugned notification purportedly issued pursuant thereto, SRO 655, was likewise a nullity and of no legal effect whatsoever."
(The writer is former Chairman of ICAP & ICMAP Joint Committee, Vice President ICMAP & ICSP and Founding President PIPFA, the writer practices as Corporate Counsel)