Conceptual Analysis of Sub Delegation: An Overview
Conceptual Analysis of Sub Delegation: An Overview
Abstract
The recent era which has witnessed the rapid growth of delegated legislation in almost all legal systems of the world is not a new
phenomenon. Ever since statutes began to be enacted by parliament through a defined formal process, there has been delegation of
legislative function. The historical footprints of the delegated legislations can be well seen in the backdrop of the history. Being the
most influential amongst all the U.K. legal system bears a well-developed stricture of delegated legislation in the timeline of
history. In United Kingdom, as long as in 1531 as per the rule of Henry VIII Clause, the legislators cannot foresee all the
difficulties while passing a law, the administrators or executives can be vested with power to make necessary changes to remove
difficulties present in the statute passed by the legislators.
required for their operation. should not be given uncanalised and unguided legislative
When a legislative body passes an Act, it has exercised its power. Like delegation, sub-delegation is also subject to the
legislative function. The essentials of such function are the doctrine of excessive delegation. Where a statute itself
determination of the legislative policy and its formulation as a authorizes an administrative authority to sub-delegate its
rule of conduct. These essentials are the characteristics of a powers, no difficulty arises as to its validity since such sub-
Legislature itself. After a Law is made by the Legislature, it is delegation is within the terms of the statute itself.
clear that every detail for working it out and for carrying the
enactment into operation and effect, may be done by the Sub-Delegation of legislative powers
Legislature or may be left to another subordinate agency or to When a statute confers some legislative powers on an
some executive officer. While this is sometimes loosely executive authority and the further delegates those powers to
described as a 'delegation' of legislative power, in essence, it is another subordinate authority of agency, it is called 'sub-
different from delegation of legislative power which means a delegation.' Thus, a chain of delegation gets created in which
determination of the legislative policy and formulation of the the origin of the power flows through the Parent Act.
same as a rule of conduct Sub-delegation is the further delegation of power by a delegate
In a contemporary welfare State, governmental activity has to another person or agency. The basic principle in this process
encompassed almost every ground of human venture, thus, is summarised by the maxim 'Delegatus Non Potest Delegare.
requiring enactment of miscellaneous laws to control this ever- [4]
, Such sub-delegation can’t be made without the duly
widening activity. The Legislature does not have enough time authorisation by the parent statute under which the delegation
to deliberate upon, discuss and approve all the regulatory has been taken place. e.g.Even though no express power to
measures. Moreover, law-making has now become a sub-delegate was granted by the Andhra Pradesh Markets Act,
complicated and technical matter, and law has to flawless in 1966, the High Court upheld sub-delegation by implication
technical details. from S. 57(3) thereof [5].
In the nature of things, what the Legislature does, and can do, However, as sub-delegation dilutes both accountability and
is to lay down the policy and purpose of any legislation in oversight of the original administrative authority, safeguards
hand, leaving it to the Executive to frame, in conformity with are necessary for their functioning. The sub-delegate should
those principles, formal and procedural details of that measure not act beyond the scope of the power delegated over it. At the
in the form of 'orders'. same time its important that, the sub-delegation should not be
vague and must be free from any irregularities. One of the vital
Nature and Scope of sub-delegation aspect about the sub-delegated legislation is, it must get
A rule-making authority can sub-delegate its legislative power mandatorily published to be operative [6].
only when the parent statute authorities sub-delegation. Sub- Having considered various aspects of the legislative function of
delegation of power of delegated legislation is justified only the administration, we will now consider the non-legislative
where the parent statute expressly or impliedly authorizes the aspects.
delegate himself to further sub-delegate that power to anyone
else. The maxim, Delegatus non-potestdelegare is a well- Forms of delegation
known maxim which means that in the absence of any power a Following are the broader classification of the sub-ordinate
delegate cannot sub-delegate its power to another person’s. legislations frequently found under the Indian legal system.
Thus when an Act prescribes a particular body to exercise a
power, it must be exercised by that body and none else unless Full or Partial
the Act by express words or necessary implication permits such Delegation is full when complete powers are conferred on the
delegation. When a sub-delegation is made, it does not divest agents e.g. :Power to alter or amend or repeal any law by the
the authority making sub-delegation of his statutory authority. “other competent authority” under Article 371- F can be
A sub-delegation is not permissible unless the said power is included under subordinate legislation [7]. It is partial when he
conferred expressly or by necessary implication and in the is required to get advice and guidance on crucial point from the
absence of such an express authorisation, legislative power delegating authority in his country.e.g. : Under Sec. 5 of the
cannot be sub-delegated. A leading case in this aspect is Essential Commodities Act, 1955 the Central Government can
Ganapati v. State of Ajmer. Here the parent act empowered the delegate the power to make orders or issue notifications under
chief commissioner to make rules for the establishment of a Sec. 3, subject to such conditions, if any. Here, the powers
proper system of conservancy and sanitation. The chief have been delegated on subordinate authority by partially.
commissioner made a rule which empowered the district
magistrate to devise his own system. The Supreme Court held Conditional and Unconditional
that the rule made by the district magistrate was invalid since it Delegation is conditional when the action of a subordinate is
was a sub-delegation without an express authority. But if the subject to confirmation and revision by the superior. However,
parent article authorizes to sub delegate, then it can be the unconditional delegation would amount to the similar to
validated. If the parent Act permits sub delegation to officers or that of full delegation of power.e.g. : Under Section 3 of the
authorities not bellow a particular rank, then the power can be Essential Commodities Act, 1955, the Sugar Control Order,
delegated only to those officers or authorities. Here it may be 1955 was made by the Central Government (first-stage
mentioned that the authority cannot go beyond the power delegation). Under the Order, certain functions and powers are
delegated. conferred on the Textile Commissioner (second-stage
delegation). Clause 10 empowered the Textile Commissioner
Principle Underlying Sub-Delegation to authorize any officer to exercise on his behalf all or any of
The basic principle in this respect is that the sub-delegate his functions and powers under the Order. Here, the
76
International Journal of Law
subordinate authority has been conferred with the delegated purview of a tax;a provision authorizing the Government to
power but subject to certain conditions and the prior approval bring any goods within the purview of sales tax law was held
of the commissioner [8]. valid.
In Bimal Chandra Barterjee v. State of M.P [13] the Supreme
Skeleton Legislation Court while considering the provisions of M.P. Excise Act,
The skeleton legislation term is used to denote a statute which held that section 25, 26, and 62 of the M.P. Excise Act do not
delegates legislative power without laying down any principle empower the Government to levy tax on excisable articles.
or policy for the guidance of the delegate. While such Therefore it was held that, no tax can be imposed by any bye-
legislation should be invalid as it violates the principles of law, rule or regulation unless the Statute under which
delegation, in modern practice there are a number of statutes subordinate legislation is made specially authorizes the
which lay down only the barest possible policy guidance and imposition.
leave enormous discretion to the delegate not only on matters On the contrary, in SitaramBishamberDayal v. State of Uttar
of detail, but also on matters of policy choice. Courts Pradesh [14], the power to impose sales tax at a rate not
sometimes uphold skeletal legislation, which can only be exceeding 5% was not regarded irregular by the Supreme Court
justified on the ground of expediency. E.g.: Mines and as the rate prescribed was a reasonable upper limit.
Minerals (Regulation and Development) Act, 1948 is a best
illustration in this regard. This Act confers myriad powers on United States
the Central as well as State governments to delegated such As far as USA is concern, its constitution clearly states that,
powers further and control the mining activities. “the executive power shall be vested in a President of the
In consonance to this, the Apex Court dealt the issue of United States of America.”[15] Moreover the President of the
skeleton legislation in the light of expediency of the statutory USA has been bound to ensure that he shall take care that laws
provisions and other constraints, in Bhatnagars& Co. v. Union be faithfully executed [16] Thus, a pellucid approach can be well
of India [9] wherein the Section 3(1)(a), Imports & Exports observed under the Constitution of the USA pertaining to the
Control Act, 1947 authorised the Central Government to form of executive functioning. Thus, it will be a futile hardship
prohibit or restrict import and export of goods of any specified to trace the roots of the delegated legislation under the
description, despite the Act not explicitly stating any policy; Constitution of USA.
upheld the delegation of power by referring to the predecessor In 1892, the Supreme Court declared in Field v. Clark [17],
Act, which contained a policy statement. “That Congress cannot delegate legislative power to the
President is a principle universally recognized as vital to the
Power to fill in detail integrity and maintenance.” In 1989, nearly a century after it
This is the most common type of delegation wherein the the Supreme Court of USA in Mistretta v. United States [18] had
legislature makes the law in skeletal form {also called skeleton upheld the urge and gross necessity of the grant of legislative
legislation) and it is the executive which provides blood and power to the executive agencies to implement the same in most
flesh to this skeleton. In this type of delegation the legislature appropriate and efficient way based on the guidelines for
formulates the policy and authorises the executive to supply the federal criminal offences. This precedent paved way towards
details. more pragmatic and liberal judicial interpretations to welcome
the radical changes in the field of administrative law such as
Doctrine of Excessive Delegation delegated legislations.
The doctrine of excessive delegation is applied by the courts to
adjudge the validity of the provision delegating the power. United Kingdom
Therefore, too broad power ought not to be vested in the Being the essence of parliamentary democracy U.K. bears its
Executive in matters of taxation; the parent Act ought to own kind of set up for the delegated legislation. Having been
contain policy in the light of which the Executive is to exercise based on the principle of ‘parliamentary sovereignty’, U.K.
the power delegated to it. The courts uphold delegation of legal system bears paramount authority to the parliament. Thus
power to decide "matters of details" in a truth, is really a every minute intricacy in this regard can be seen to be linked
euphemism to cover delegation of significant powers to the with the Parliament. In the earliest years of British Parliament,
Executive in the tax area.e.g.: “The delegated authority must broad power to legislate by proclamation remained with the
only implement stated policy, but if there is abdication of crown. In the 1539 Royal Power to issue proclamation for good
legislative power by transferring policy formulation role to the order and governance was recognised by Henry VIII’s Statute
delegate, then there is excessive delegation, which will be of Proclamations and such proclamations were enforced as if
invalidated by the court.”[10] made by Act of parliament. However the aforesaid statute was
There are few instances in which the delegation may be replaced in 1547. Thereafter the Acts of parliament delegated
questioned on the ground of being excessive, as In Orient power to the crown to make laws [19].
Weaving Mills v. Union of India [11], when it comes to In Britain executive has no inherent legislative power.
delegated the power to the Government to exempt a Statutory authority is indispensible. The delegated legislation
commodity from the purview of tax; a provision conferring does not have any immunity from challenge in courts which
power of the Central Government to exempt any excisable Acts of parliament enjoy as there is a fundamental difference
goods from the whole or part of the duty leviable on such between a sovereign and subordinate law making power.
goods was held valid against the plea of excessive delegation. House of Lords in Hotel and Catering Industry Training Board
In Banarasi Das v. State of Madhya Pradesh [12], when it v. Automobile Ply Ltd [20] Declared invalid an order of minister
comes to confer the power to the Government to bring of labour which would have imposed Industrial Training Act,
additional transactions, commodities or persons within the 1964.
77
International Journal of Law
The validity of statutory instrument may be challenged on two obtain the prior concurrence of the Central Government. The
main grounds i.e. the content and substance of the instrument is Supreme Court ruled in the instant case that any rule made by a
ultra vires the parent act and that the correct procedure has to State Government without the concurrence of the Central
been followed in making the instrument [21] In 1998 the Government would be ultra vires. The Hon’ble Apex Court
parliament enacted Human Rights Act 1998. Sec 3(1) of the stated that,"A delegate is not entitled to exercise powers in
Human Rights Act 1998 casts a duty to interpret the legislation excess or in contravention of the delegated powers. If any
consistently with the European convention rights where it is order is issued or framed in excess of the powers delegated to
possible to do so. Thus, the requirement of a valid subordinate the authorities, such order would be illegal and void."
law is that it should be in conformity with European In Morgan (I) v. U.S [27] the Supreme Court of America held
Convention Law. In Bourgoinsa v. Ministry of Agriculture [22] a that the duty to decide cannot be performed by one who has not
ministerial order was held to be unlawful on account of conflict considered evidence or argument. It is not a impersonal
with European Convention treaty. obligation. It is akin to that of a judge. 'The one who decides
must hear'. Lord Denning rightly stated:"while an
Precedents on Sub-Delegation in India administrative function can often be delegated, a judicial
The necessity of sub-delegation is ought to be supported, inter function rarely can be; no judicial tribunal can delegate its
alia, on the grounds- Power of delegation necessarily carries functions unless it is enabled to do so expressly or by necessary
with it power of further delegation; andsub-delegation is implication" [28]. The same principle is accepted in India as the
ancillary to delegated legislation; and any objection to the said basic principle [29].
process is likely to subvert the authority which the legislature In, Bombay Municipal Corporation v. Thondu, the words of
delegates to theexecutive. Sub-delegation of legislative power Hidayatullah, J. have become a guiding star to deal with the
can be permitted either when such power is expressly conferred similar intricacies of the delegated legislation and the judicial
by the statute or may be inferred by necessary implication. powers, as follows- "It goes without saying that judicial power
Without the strict adherence to this principle no sub-delegation can not ordinarily be delegated unless the law expressly or by
can be possible. clear implication permits it" [30].
The Lok Sabha Committee on Subordinate Legislation took the Under the relevant Act and the rules the Minister was
view that, as the ultimate authority of the sub-order has to be empowered to hear the parties and to pass the final order, but
traced to the Act, it should have been laid. The Committee, he delegated his function of hearing to his Secretary, who
however, subsequently stated the necessity to "lay" sub- heard the parties and put a note before the Minister for final
delegated legislation made under the coal Mines (Conservation decision and the order was passed by the Minister. Quashing
and Safety) Rules, 1954, and statutory orders under the the orders, passed by the Minister, Subba Rao, J. held that it
Defence of India Rules, 1971 [23]. The topic can be studied was not a judicial hearing. "If one person hears and another
under three sub-heads: Sub-delegation of legislative power, decides, personal hearing becomes an empty formality".
Sub-delegation of judicial power and Sub-delegation of
administrative power. The maxim 'delegatus non potest Conclusion
delgare' (a delegate cannot further delegate) applies to When talking of the nature of subordinate legislation or
delegated legislation also and it is not possible for the delegate delegated legislation ‘Subordinateness’ not merely is
to sub-delegate the power conferred on him unless the parent suggestive of the level of the authority making it but also of the
Act authorizes him to do so either expressly or by necessary nature of the legislation itself. Delegated legislation under such
implication. delegated powers is ancillary and cannot, by its very nature,
In, Central Talkies Ltd. v. Dwarka Prasad, the replace or modify the parent law nor can it lay down details
U.P.(Temporary) Control of Rent and Eviction Act, 1947 [24] akin to substantive law. There are instances where pieces of
provided that no suit shall be field for the eviction of a tenant subordinate legislation which tended to replace or modify the
without permission either of a District Magistrate or any officer provisions of the basic law or attempted to lay down new law
authorized by him to perform any of his functions under the by them had been struck down as ultra vires.
Act. An order granting permission by the Additional District Delegated or subordinate legislation means rules of law made
Magistrate to whom the powers were delegated was held valid. under the authority of an Act of Parliament. Although law
Thus, express mention of the delegated powers in the orders making is the function of legislature, it may, by a statute,
plays a key role. delegate its power to other bodies or persons. The statute which
In landmark case of Ajaib Singh v. Gurbachan Singh [25], under delegates such power is known as Enabling Act. By Enabling
the relevant statute, the Central Government was empowered to Act the legislature, lays down be broad guidelines and detailed
make rules for detention of any person by an authority not rules are enacted by the delegated authority. Delegated
below the rank of District Magistrate. Where the order of legislation is permitted by the Indian Constitution. It exists in
detention was passed by an Additional District Magistrate, the form of bye rules, regulations, orders, bye laws etc. Factors
action was held bad. Here, the principle of delegated legislation responsible for its increase.
was held subject to the strict interpretation of the statute.
Another illustration of such strict interpretation by the Apex References
Court is, the case of District Collector Chittoor v. Chittor 1. A Henry VIII clause is the term given to a provision in a
District Groundnut Traders Association [26], Wherein, the primary Act which gives the power for secondary
Essential Commodities Act confers rule-making power on the legislation (regulations) to include provisions which
Central Government. The Central Government sub-delegated amend, repeal or are inconsistent with the primary
this power to the State governments subject to the condition legislation. Available at- http://www.ruleoflaw.org.au/wp-
that before making any rules, the State Government would
78
International Journal of Law
content/uploads/2012/08/Reports-and-Pres-4-11-Henry-
VIII-Clauses-the-rule-of-law1.pdf
2. Sidhartha Sarawgi VS. Board of Trustees For The Port of
Kolkata and OThRS, SC, SLP (CIVIL) NO.18347/2013
decided on. 2014. Reported at judis.nic.in on 10/02/2015
at 6:48pm
3. (1974) 4 SCC 98, Para 37
4. A delegate cannot further delegate unless expressly or
impliedly
5. AlapatiSeshadri Rao V. Agriculture Marketing Committee,
Guntur, AIR. 1977, 322.
6. Narendra Kumar V. Union of India, AIR. 1960, SC 430.
7. Sikkim V. Surendra Sharma. 1994, 5 SCC282.
8. Bhatnagars. Co. v. Union of India AIR. 1957, SC 478.
9. Ibid
10. Mahe Beach Trading Co. v. Union Territory of
Pondicherry. 1996, 3 SCC 741.
11. 1963 AIR 98, 1962 SCR Supl. (3) 481
12. 1958 AIR 909, 1959 SCR 427
13. 1971 AIR 517, 1971 SCR (1) 844
14. 1982 AIR 33, 1982 SCR (1)1137
15. Article 2, Section 1 of the US Constitution.
16. Article 2, Section 3 of the US Constitution.
17. 143 U.S. 649 (1892)
18. 488 U.S. 361 (1989)
19. Jain MP, Jain SN. Principles of Administrative law, (5 ed).
2007, 47.
20. House of Lords in Hotel and Catering Industry Training
Board v. Automobile Ply Ltd. (1969) 2 All ER 582.
21. RV. Ennviorment Sec. Exp. Spath Holme Ltd. 2001, 1
AllER 195.
22. Bourgoinsa V. Ministry of Agriculture. 1985, 3 WLR
1027.
23. Seventeenth Reports (V.L.S.) 19 (1976). Also see
Fourteenth Report (V.L.S.) 9 (1974).
24. AIR 1961 SC 606: (1961) 3 SCR 495
25. AIR 1965 SC 1619; (1965) 22 SCR 845; see also Had
Chand v. Batala Engg. Co., AIR 1969 SC 483; (1969) 2
SCR 201.
26. AIR 1989 2 SCC 58 at 63; AIR 1989 SC 989
27. (1936) 298 U.S. 468 (481).
28. Barnard v. National Dock Labour Board, (1953) 1 All ER
113 (118-19): (1953) 2 QB 18 : (1953) 2 WLR 995
29. Sahni Silk Mills (P) Ltd. V. ESI Corpn., (1994) 5 SCC 346
(352)
30. AIR 1965 SC 1480 (1488): (1965) 2 SCR 929 (932).
79