Doctrine of Substantive Ultra Vires

Delegated legislation consists of rules, regulations, notifications or forms made under authority granted by a legislature. It is substantively ultra vires when its content exceeds the purpose, subject matter or limits of the parent statute, or conflicts with a superior legal norm.

The controlling test

A court compares the impugned provision with the enabling section and the statute as a whole. Delegated legislation may implement legislative policy and supply details, but it cannot override, contradict or replace that policy.

• A rule is invalid if it regulates a matter outside the authority granted by the enabling provision.
• A delegate cannot use a general rule-making power to defeat an express provision of the parent Act.
• Whether a rule is within power depends on the statutory language, object and limits, not merely on the rule-maker's stated purpose.

Grounds for substantive invalidity

Under Article 13, rules, regulations, orders and notifications having the force of law are subject to Fundamental Rights. In State of Tamil Nadu v. P. Krishnamurthy (2006), the Supreme Court summarized recognized grounds for challenging subordinate legislation.

• It may be invalid for exceeding the delegation or failing to conform to the parent statute.
• It may be invalid for violating the Constitution, including Fundamental Rights, or for conflicting with another applicable law.
• It may be struck down for manifest arbitrariness or unreasonableness of such degree that the legislature could not have intended to authorize it.
• Failure to follow a mandatory publication, consultation or similar requirement is ordinarily procedural ultra vires, rather than substantive ultra vires.

Application under election law

Under Section 169 of the Representation of the People Act, 1951, the Central Government may make rules, after consulting the Election Commission, for carrying out the purposes of the Act. Consequently, election rules and prescribed forms must remain supported by the Act's provisions and cannot create obligations contrary to its scheme.