Substantive Ultra Vires and Procedural Ultra Vires: Meaning, Grounds, Difference and Case Laws

Ultra vires means beyond the powers. It is the central doctrine of judicial control over delegated legislation, and it divides into two branches. Substantive ultra vires concerns the content of the rule: what the rule says is beyond, or contrary to, the power under which it was made. Procedural ultra vires concerns the making of the rule: the content may be unobjectionable, but a step the statute required was not taken. The two branches are pleaded together often enough to be run together in argument, but they rest on different materials and produce different consequences, and the distinction between them is the organising idea of this topic.

1. The Doctrine

A delegate has only the power the parent Act gives it. An act done in excess of that power has no legal effect, because the authority to do it does not exist. Applied to delegated legislation, the doctrine means that a rule is law only in so far as it falls within the enabling provision, is consistent with the Act and the Constitution, is made by the authority the Act names, and is made in the manner the Act prescribes. Failure at any of these points makes the rule ultra vires and void.

It is worth noting where the doctrine does not apply. It does not test the wisdom of a rule, since the court does not sit in appeal on policy. It does not apply to a primary statute, which is tested for competence and constitutionality but not for excess of delegated power. And it operates on the assumption that the enabling provision is itself valid; where the complaint is that the legislature delegated too much, the objection is excessive delegation, which attacks the Act and not the rule.

2. Substantive Ultra Vires

Substantive ultra vires arises where the content of the rule cannot be supported by the power. The recognised categories are these.

Beyond the scope of the enabling provision. The rule deals with a matter the rule-making power does not cover, or extends to persons, things or situations outside it.
Inconsistent with the parent Act. The rule contradicts a provision of the Act, defeats its scheme, or takes away a right the Act confers.
Inconsistent with another statute. The rule contravenes a different Act governing the field.
Unconstitutional. The rule offends the fundamental rights or any other provision of the Constitution.
Manifestly arbitrary or unreasonable. The rule has no rational basis; in the case of bye-laws of local bodies, manifest unreasonableness is an established ground.
Unauthorised retrospective operation. The rule reaches into the past without authority in the parent Act.
Exclusion of the jurisdiction of the courts, or the creation of a tax, fee, offence or penalty that the Act does not authorise.
Bad faith or improper purpose. The power was used to achieve an object other than that for which it was conferred, or the rule is a colourable exercise of power.

📖 General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR 1988 SC 876

Facts: The respondent was employed in a school run by a cantonment board. Rules had been framed by the Central Government under the Cantonments Act, 1924 governing the conditions of service of cantonment board employees, and a further provision was relied on which had not been framed under the statutory rule-making power and which was inconsistent with the scheme of the Act.

Held: The Supreme Court set out the requirements for a rule made under a statute to have effect. Before a rule can have the effect of a statutory provision, two conditions must be fulfilled: it must conform to the provisions of the 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 two conditions is not fulfilled, the rule so framed would be void. The provision relied on failed that test and could not be given statutory effect.

Ratio: The standard two-condition statement of substantive ultra vires. A rule must satisfy both conformity with the Act and conformity with the rule-making power, and failure on either count makes it void.

The English authority most often cited for the proposition that a rule cannot take away a common law or constitutional right without clear statutory authority is Chester v. Bateson, [1920] 1 KB 829, where a regulation made under wartime powers prohibited any person from taking legal proceedings for possession of a dwelling occupied by a munitions worker without the consent of the Minister. The Divisional Court held the regulation invalid: a right of access to the courts could not be taken away by subordinate legislation in the absence of the clearest authority, and the enabling provision did not confer it. Indian courts have applied the same approach in holding that rules cannot oust or restrict the jurisdiction of the courts without express statutory sanction.

3. Procedural Ultra Vires

Procedural ultra vires arises where the rule-making authority failed to follow a procedure the statute prescribed. The content of the rule may be entirely within the power; the defect lies in how it was made. The recognised categories are these.

Failure to consult a body or interest whose consultation the Act requires.
Failure to observe previous publication, where the power is made subject to it, including failure to publish a draft, to state a date, or to consider objections.
Failure to publish the finished rule in the manner the Act prescribes, or at all.
Failure to lay the rule before the legislature, where the laying requirement is mandatory.
Failure to obtain a required approval or sanction from another authority before making the rule.
Exercise by the wrong authority, or unlawful sub-delegation of the rule-making power.

Whether a procedural defect invalidates the rule depends on whether the requirement is mandatory or directory, and that is settled by the test in Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895: the question is not decided by the words 'shall' or 'may' but by the purpose of the provision, the object of the statute and the consequences of holding it one way or the other. Where the requirement exists to give notice to those the rule will govern and they did not receive it, it is mandatory (Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra, (1975) 2 SCC 482); where the substance has been complied with and the object achieved, a departure in form does not invalidate (Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849). A simple laying clause is ordinarily directory (Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196).

4. The Two Branches Compared

Basis	Substantive ultra vires	Procedural ultra vires
What is attacked	The content of the rule	The process by which the rule was made
The question asked	Could the delegate lawfully make a rule saying this?	Did the delegate take the steps the statute required?
Materials examined	The rule, the parent Act and the Constitution	The statute's procedural provisions and the record of what was done
Typical grounds	Beyond or against the Act, unconstitutional, arbitrary, unauthorised retrospectivity, bad faith	Want of consultation, previous publication, publication, laying, or sanction
Effect of the defect	Always fatal; the rule is void to the extent of the excess	Fatal only if the requirement is mandatory; not if directory or substantially complied with
Can it be cured?	Only by amending the parent Act or remaking the rule within power	By remaking the rule after following the procedure
Leading authorities	Subhash Chandra Yadav; Kunj Behari Lal Butail; Chester v. Bateson	Raza Buland Sugar; Govindlal; Banwarilal Agarwalla; Atlas Cycle

⚠ A rule can be good in substance and bad in procedure, or the reverse

The two branches are independent, and each must be checked separately. A rule whose content is squarely within the Act fails if a mandatory step in its making was omitted, and remaking it after due procedure will cure the defect. A rule made with impeccable procedure fails if its content travels beyond the Act, and no amount of procedural correctness will save it; only an amendment of the Act or a narrower rule will. The consequence for the maker is therefore different in the two cases, which is the practical reason for keeping them apart.

5. The Position in Summary

Ultra vires means beyond the powers, and is the central doctrine by which the courts control delegated legislation; it assumes a valid enabling provision and tests the rule made under it.
Substantive ultra vires attacks the content: the rule is beyond or against the parent Act or another statute, unconstitutional, manifestly arbitrary, unauthorisedly retrospective, or made in bad faith.
A rule must both conform to the Act and fall within the rule-making power, and failure on either count makes it void (Subhash Chandra Yadav).
Procedural ultra vires attacks the making: consultation, previous publication, publication, laying or sanction was omitted; the defect is fatal only where the requirement is mandatory (Raza Buland Sugar).
The branches are independent, and the consequence differs: a procedural defect can be cured by remaking the rule properly, while a substantive defect cannot be cured except by amending the Act or narrowing the rule.

6. Related Topics and Provisions

Judicial Control over Delegated Legislation (Topic 44): the grounds of challenge and the scope of review.
Constitutionality of Delegated Legislation (Topic 45): the constitutional branch of substantive review.
Procedural Control over Delegated Legislation (Topic 43): the steps whose omission produces procedural ultra vires.
Publication (Topic 38), Previous Publication (Topic 39) and Laying (Topics 40 and 41): the individual procedural requirements.
Sub-Delegation (Topic 31) and Retrospective Delegated Legislation (Topic 33): two recurring grounds.
Constitution of India: Articles 13, 14, 19, 32, 226, 245 and 246; General Clauses Act, 1897, section 23.