The chief instrument in the hands of the judiciary to control delegated legislation is the “Doctrine of ultra vires.”
The doctrine of ultra vires may apply with regard to-
(i) Procedural provision; and
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(ii) Substantive provisions.
(i) Procedural defects:
The Acts of Parliament delegating legislative powers to other bodies or authorities often provide certain procedural requirements to be complied with by such authorities while making rules and regulations, etc.
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These formalities may consist of consultation with interested bodies, publication of draft rules and regulations, hearing of objections, considerations of representations etc. If these formal requirements are mandatory in nature and are disregarded
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by the said authorities then the rules etc. so made by these authorities would be invalidated by the Judiciary. In short subordinate legislation in contravention of mandatory procedural requirements would be invalidated by the court as being ultra vires the parent statute.
Provision in the parent Statute for consulting the interested parties likely to be affected, May, in such cases, avoid all these inconveniences and the Railway authorities may not enact such rule after they consult these interests.
A simple provision regarding consultation thus assumes importance. On the other hand, if the procedural requirements are merely of directory nature, then a disregard thereof would not affect the validity of subordinate legislation.
The fact that procedural requirements have far reaching effects may be made clear by just one example. Suppose the Railway authorities want to relieve pressure of work of unloading goods during day time at a Station amidst a big and brisk business centre.
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The public wants a reduction in the traffic jams due to heavy traffic because of unloading. The traffic authorities and railway authorities decide to tackle the problem effectively by making a rule that the unloading be done during late hours of night.
The railway authorities make an order to this effect, without consulting interested bodies. Such rule might cause many hardships, e.g.—
(i) The conditions of labour are such that unloading of goods during the night would adversely affect the profit margin as the workers would charge more if they work in night shifts.
(ii) It may not be without risk to carry money from one place to another during late hours of night. If safety measures are employed, that in addition to the element of a greater risk, expenses would increase, adversely affecting the margin of profits.
(ii) The Banking facilities may not be available freely during night.
(iv) Additional staff may be necessary in various concerns for night duty.
(v) This business or loading and unloading during -night may cause inconvenience and disturbance in the locality.
Now in fact of these difficulties another alternative which appears to be desirable is better supervision of unloading and better regulation of traffic by posting more police officers and stricter enforcement of traffic laws.
Provisions in the parent statute for consulting the interested parties likely to be affected may, in such cases, avoid all these inconveniences, and the Railway authorities may not act such a rule after they consult these interests. A simple provision regarding consultation this assumes importance.
The question of the effectiveness of the application of the doctrine of ultra vires, so for as procedure is concerned, would largely depend upon the words used in a particular statute. If the words are specific and clearly indicate the bodies to be consulted, then it would be possible to show non-compliance.
But in case where the Minister is vested with the discretion to consult these bodies which he considers to be representative of the interests likely to be affected or where he is to consult such bodies, if any, it is very difficult to prove non-compliance with the procedural requirements.
(ii) Substantive Defects:
In case of delegated legislations, unlike an Act of the Parliament, the court can inquire into whether it is within the limits laid down by the present statute. If a piece of delegated legislation is found to be beyond such limits, court would declare it to be ultra vires and hence invalid.
The administrative authorities exercising legislative power under the authority of an Act of the Parliament must do so in accordance with the terms and objects of such statutes. To find out whether administrative authorities have properly exercised the powers, the court has to construe the parent statute so as to find out the intention of the legislature.
The existence and extent of the powers of administrative authorities is to be affixed in the light of the provisions of the parent Act. The “particular words” used on the provision delegating legislative power to administrative authorities determines the limits of the delegated authority, If vague words having a wide meaning are used then the control by the courts becomes less effective.
However, the words used are precise and definite in meaning then such control is far more effective. Thus judicial control of delegated legislation largely depends upon the wideness or otherwise of the words used in the empowering provisions.
When powers of an extensive nature are given to the administration that it becomes very difficult to prove that a certain action of administration was beyond its authority. This, for example, under the Supplies and Services (Extended Purpose) Act, 1947 the Defense Regulations could be extended to the following purposes:
(i) For promoting the productivity of industry, commerce and agriculture;
(ii) For fastening and directing exports and reducing imports; and
(iii) Generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the community.
An examination of the above provisions shows that the administration can control the economic life of the people completely and it seems improbable that a plea of ultra vires can be pleaded with any substantial success in this case since the words used are so vague and wide in their import.
But where powers conferred upon the administration are comparatively by words used in the enabling provisions than the doctrine of ultra vires may certainly be used as a means of control of such powers.
For example, during World War I, various powers were given to the administration, but the object of such powers was ‘defense of the realm’, and authorities competent to apply the regulations were indicated sufficiently and were few in number and hence the plea of ultra vires was used with a fair amount of success.
Sometimes the Parliament empowers the administrative authorities to make rules and regulations for carrying out the provisions of a particular statute.
Such provisions confer very wide powers upon the administration making it very difficult to find out the limits of the powers of the administrative authorities. The result is that in such cases the doctrine of ultra vires loses much of its value.
According to C. K. Allen, the result, at the present time, is that the doctrine of ultra vires is greatly attenuated and indeed, with regard to a very number of executive powers, it may be said to be completely paralysed. He has very rightly given three principal reasons for his ineffectiveness of the doctrine of ultra vires:
1. The object or purposes of the enabling statute is so widely worded that almost everything is covered by it;
2. The Ministers are often empowered to make such regulations as appear to him/them to be necessary or expedient for a specified purpose; and
3. The distinction between administrative, judicial and legislative acts is very difficult to be drawn.
According to him, in all these three cases the doctrine of ultra vires displaced to such an extent that it serves no useful purpose.
Further, the departmental legislation cannot be set aside on the ground of unreasonableness. [Spark v. Edward Ash Ltd. (1943) K.B.223; Taylor v. Brighton Borough Council, (1947) 1 B.B.233], or as being repugnant to fundamental concept of law.
As regards the question of reasonableness, the judicial pronouncements clearly lay down that once the powers are conferred upon the particular agency and the exercise thereof is within limits of authority so conferred, the courts would not interfere.
As regards the second point, i.e., the position of delegated legislation repugnant to natural justice or common law, it is now settled that courts cannot interfere on this ground. They can only enquire whether the action is ultra vires.
As regards bye-laws, different legal principles apply and the Courts exercise a reasonably effective control over this type of delegated legislation. Bye-laws must be made in accordance with the procedural requirement and of course must be within the authority conferred upon the issuing authority.
They must not be contrary repugnant to the laws or Statutes of the realm. [Powell v. May, (1946) K.B. 333]. Further, they must not be repugnant to the parent Statute. The important point which is noteworthy in this connection is that the Courts in case of bye-laws can determine the reasonableness thereof.
If these are found to be unreasonable, the court would declare these to be invalid. This gives the courts the power to determine the desirability or other wise of a bye-law.
The leading case on the point is Kruse v. Johnson, (1898) 2 Q.B. 91, in which it was decided that it was not unreasonable to empower a policeman to prevent street music of any kind within fifty yards of a dwelling house, even when there was no proof that the music was in fact an annoyance to any person or persons.
In Repton School Governors v. Repton R.D.C. (1918) 2 K.B. 133, the court declared a bye-law as unreasonable which had long been accepted without demur and provided that every hew building including any addition to an existing building should have an open space of not less than 150 feet at the back.
The Courts in such matters are guided by the purpose and other relevant considerations to the rationality of the bye-law. Each case is to be considered on merits.