INTRODUCTION

DELEGATED LEGISLATION:

Salmond defines – “Subordinate legislation is that which proceeds from any authority other than
the sovereign power, and is therefore dependent for its continued existence and validity on some
superior or supreme authority.”

Sir Cecil Carr defines – “Delegated legislation is a growing child called upon to relieve the
parent of the strain of overwork and capable of attending to minor matters, while the parent
managers the main business. The delegated legislation is so multitudinous that the statute book
would not only be incomplete but misleading unless it be read along with the delegated
legislation which implies and amends it.”

A portion of law-making power of the legislative is conferred or bestowed upon a subordinate

authority. Rules & regulations which are to be framed by the latter constitute an integral portion
of the statute itself.

It is within power of parliament when legislating within its legislative few, to confersuborbital
administrative & legislative powers upon some other authority.

Subordinate legislation, is the legislation made by an authority subordinate to the sovereign

authority, namely, the legislature. According to Sir John Salmond,* "Subordinate legislation is
that which proceeds from any authority other than the sovereign power and is, therefore,
dependent for its continued existence and validity on some superior or supreme authority. "Most
of the enactments provide for the powers for making rules, regulations, by-Laws or other
statutory instruments which are exercised by specified subordinate authorities. Such legislation is
to be made within the framework of the powers so delegated by the legislatureand is, therefore,
known as delegated legislation.

ESSENTIAL CHARACTERISTICS OF DELEGATED LEGISLATION:

1. The rules should contain short titles, explanatory notes, reference to earlier amendments, etc.
for clear understanding.

2. No extra-ordinary delay shall occur in making the subordinate legislation.

3. The administrative authority should not travel beyond the powers given in Parent Act.

4. Essential legislative functions cannot be delegated.

5. Sub-delegation (Delegatus non potest delegare) is not encouraged.

6. General rules should not be framed with retrospective operation, unless and until the parent
Act instructs to do so.

7. Discriminatory and arbitrary rules should not be framed.

8. Wide and sufficient publicity shall be given so that general public can know it.

9. In appropriate cases, consultation also shall be made for more effectiveness and efficiency.

10. The Sub-ordinate authorities should not use rigid, crux and technical language while
preparing the rules, which may cause difficulty to understand by general public.

11. The final authority of interpretation of the subordinate rules is vested to Parliament and
Courts. But the administrative authorities are not empowered and authorised to interpret the
statutes.

12. A tax or financial levy should not be imposed by rules.

13. Wherever it is necessary, the explanatory notes shall be given.

14. Public interest must be kept in view while delegating the powers, etc.

TYPES OF DELEGATED LEGISLATION

 Local authority by- laws, made by local councils under enabling Acts.
 Public corporation by-laws - made under statutory authority.
 Rules of court, made by the rules committees.
 European regulations, made by the European Commission and law as a result of the
European Communities Act 1972.
 Ministerial/departmental regulations, made by statutory authority.
 Orders in Council, made by statutory authority or under the Royal Prerogative (for
example, for exercising control over new dominions).

Therefore Delegated legislation and Sub-delegated legislation are two different things which
concepts are totally different to each other. Coming to the topic Sub-delegated Legislation its
role and importance.

 SUB-DELEGATED LEGISLATION:

Definition:

Sub Delegation – (Delegatus non potest delegare) ‘When a statute confers some legislative
powers on an executive authority and the latter further delegates those powers to another
subordinate author or agency, it is called ‘sub-delegation’.
Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go
through many stages. If we may call the enabling Act the „parent‟ and the delegated and sub-
delegated legislation the „children‟, the parent, in his own lifetime may beget descendants upto
four or five degree.

An important illustration of sub-delegation is found in the Essential Commodities Act,

1955.Section 3 of the Act empowers the Central Government to make rules. This can be said to
be the first-stage delegation. Under Section 5, the Central Government is empowered to delegate
powers to its officers, the State Governments and their officers.

Usually under this provision, the powers are delegated to State Governments. This can be said to
be the second-stage delegation (sub-delegation). When the power is further delegated by State
Governments to their officers, it can be said to be the third-stage delegation (sub-sub-delegation).
Thus, under Section 3 of the Essential Commodities Act, 1955, the Sugar Control Order, 1955
was made by the Central Government (first-stage delegation). Under the Order, certain functions
and powers are conferred on the Textile Commissioner (second-stage delegation). Clause 10
empowered the Textile Commissioner to authorize any officer to exercise on his behalf all or any
of his functions and powers under the Order (third-stage delegation).

Object:

The necessity of sub-delegation is sought to be supported, inter alia, on the following grounds:

1. Power of delegation necessarily carries with it power of further delegation; and

2. Sub-delegation is ancillary to delegated legislation; and any objection to the said process is
likely to subvert the authority which the legislature delegates to the executive. Sub-delegation of
legislative power can be permitted either when such power is expressly conferred by the statute
or may be inferred by necessary implication.

Express Power:

Where a statute itself authorizes an administrative authority to sub-delegate its powers, no

difficulty arises as to its validity since such sub-delegation is within the terms of the statute itself.
Thus, in Central Talkies Ltd. v. Dwarka Prasad1, the U.P. (Temporary) Control of Rent and
Eviction Act, 1947 provided that no suit shall be filed for the eviction of a tenant without
permission either of a District Magistrate or any officer authorized by him to perform any of his
functions under the Act. An order granting permission by the Additional District Magistrate to
whom the powers were delegated was held valid.

On the other hand, in Ganpati Singhji v. State of Ajmer 2, the parent Act empowered the Chief
Commissioner to make rules for the establishment of proper system of conservancy and
1
1961 AIR 606, 1961 SCR (3) 495.
2
1995 AIR 188, 19 SCR (1) 1065.
sanitation at fairs. The rules made by the Chief Commissioner, however, empowered the District
Magistrate to devise his own system and see that it was observed. The Supreme Court declared
the rules ultra vires as the parent Act conferred the power on the Chief Commissioner and not on
the District Magistrate and, therefore, the action of the Chief Commissioner sub-delegating that
power to the District Magistrate was invalid. Sometimes, a statute permits sub-delegation to
authorities or officers not below a particular rank or in a particular manner only. As per settled
law “if the statute directs that certain acts shall be done in a specified manner or by certain
persons, their performance in any other manner than that specified or by any other person than
one of those named is impliedly prohibited.” In other words, „where a power is given to do a
certain thing in a certain way, the thing must be done in that way or not at all.

Implied power:

But what would happen if there is no specific or express provision in the statute permitting sub-
delegation? The answer is not free from doubt. In Jackson v. Butterworth, Scott, L.J. held that
the method (of sub-delegating power to issue circulars to local authorities) was convenient and
desirable, but the power so to sub-delegate was, unfortunately, absent.

The other view, however, is that even if there is no provision in the parent Act about sub-
delegation of power by the delegate, the same may be inferred necessary implication. Griffith
rightly states, “if the statute is so widely phrased that two or more „tiers‟ of sub-delegation are
necessary to reduce it to specialized rules on which action can be based, then it may be that the
courts will imply the power to make the necessary sub-delegated legislation.”

In States v. Baren3, the parent Act conferred on the President the power to make regulations
concerning exports and provided that unless otherwise directed the functions of the President
should be performed by the Board of Economic Welfare. The Board sub-delegated the powerto
its Executive Director, who further sub-delegated it to his assistant, who in turn delegatedit to
some officials. The court held all the sub-delegations valid.

Concurrent Jurisdiction:

If the authority, on whom power is conferred, validity sub-delegates it, it can even then exercise
the power provided that it so wants. In Godavari v. State of Maharashtra4, the power of
detention was conferred on the State Government under the Defence of India Rules but it was
sub-delegated to the District Magistrate. It was held the power could be exercised either by the
District Magistrate or the State Government. In such a case both principal authority and delegate
will have concurrent jurisdiction.

SUB-DELEGATION CAN BE STUDIED UNDER THREE SUB-HEADS:

(a) Sub-delegation of legislative power.

3
No. 95 – 10369. September 04, 1996.
4
1964 AIR 1128, 1964 SCR (6) 446.
(b) Sub-delegation of judicial power.

(c) Sub-delegation of administrative power.

(A)SUB-DELEGATED OF LEGISLATIVE POWER:

The maxim ‘delegatus non potest delegare’ (a delegate cannot further delegate) applies to
legislation also and it is not possible for the delegate to sub-delegate the power conferred on him
unless the parent Act authorises him to do so either expressly or by necessary implication.
Assuming that the sub-delegation is permissible under the parent Act, what are the limitations
and safeguards in this behalf? Here, the following propositions may be laid down:

(1) If the parent Act permits sub-delegation to officers or authorities not below a particular rank,
then the power can be delegated only to those officers or authorities.

Under Section 3 of the Defence of India Act, 1962, the Central Government was empowered to
make rules authorising detention of persons by an authority not below the rank of a district
magistrate. Section 40 authorised the State Government to delegate its powers to any officer or
authority subordinate to it. The Supreme Court held that the power of detention could be sub-
delegated to any officer not below the rank of a District Magistrate and the exercise of power to
the Additional District Magistrate was illegal.5

But even if there is no provision in the parent Act that the sub-delegation should be made to an
officer or an authority not below a particular rank, the courts have taken the view that the power
can be sub-delegated ‘only to competent and responsible persons’.

(2) Sub delegate cannot act beyond the power conferred on him by the delegate.

In Blackpool Corpn. V. Locker6, under the Defence Regulations, 1939, the Minister was
empowered to take possession of land. By issuing circulars, he sub-delegated this power to the
Blackpool Corporation, as was within his powers. The circulars contained certain conditions and
one of them was that furniture should not be requisitioned. The Corporation requisition and
plaintiff’s dwelling house with furniture. The Court of Appeal held the impugned action ultra
vires since it went beyond conferred by the Minister on the Corporation.

(3) If some conditions are imposed by the delegate who must be complied with by the sub-
delegate before the exercise of power, those conditions must be fulfilled; otherwise exercise
of power will be ultra vires.

Under Section 4 of the Essential Supplies (Temporary Powers) Act, 1946, certain powers were
sub-delegated by the Central Government to the Provincial Government subject to the condition
that before making any order, concurrence of the former must be obtained by the latter. An order

5
Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619 : (1965) 2 SCR 845.
6
(1949) 1 KB 349; (1948) ALL ER 85.
 was passed by the Provincial Government without obtaining concurrence of the Central
Government. The order was held ultra vires as the conditions was not satisfied.7

Similarly, if sub-delegation can be made through regulations, it could not be affected by passing
a resolution.8

(B)SUB-DELEGATION OF JUDICIAL POWER:

In England9 and in America10 it is well-established that a judicial or quasi-judicial power

conferred on a particular authority by a statute must be exercised by that authority and cannotbe
delegated to anyone unless such delegation is authorised by the statute either expressly orby
necessary implication.

In Morgan v. U.S.11 the Supreme Court of America held that the duty to decide cannot be
performed by one who has not considered evidence or argument. It is not an impersonal
obligation. It is akin to that of a judge, ‘the one who decides must hear.’

‟De Smith12 says: “the maxim (delegates non potest delegare) is applied with the utmost rigour
to the proceedings of the ordinary courts, and in the entire process of adjudication a judgemust
act personally, except insofar as he is expressly absolved from his duty by statute. „onlyin very
exceptional circumstances may judicial functions be sub-delegated in the absence ofexpress
authorisation.

‟Lord Denning13 rightly states: “while an administrative function can often be delegated, a
judicial function rarely can be; no judicial tribunal can delegate its functions unless it is enabled
to do expressly or by necessary implication.”

The same principle is accepted in India as the basic principle. 14 In the words of Hidayatullah,(as
he then was) “it goes without saying that judicial power cannot ordinarily be delegatedunless the
law expressly or by clear implication permits it.”15

In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C. 16under the relevant Act and the
Rules the Minister was empowered to hear the parties and to pass the final order, but he
delegated his function of hearing to his Secretary, who heard the parties and put up a note before
the Minister for final decision and the order was passed by the Minister. Quashing the orders,
7
Radhakrishan v. State, AIR 1952 Nag 387.
8
Naraindas v. State of M.P., (1974) 4 SCC 788: AIR 1974 SC 1232.
9
Halsbury‟s laws of England (4th Edition, volume. 1) at p. 34; de smith, Judicial Review of Administrative Action
(1995); Local Govt. Board v. Arlidge, 1915 AC 120: 84 LJKB 72; Wade, Administrative law (1994)
10
Runkle v. U.S., (1887) 122 US 593.
11
(1936) 298 US 468.
12
Judicial Review of Administrative Action (1995).
13
Bamard v. National Dock Labour Board, (1953) 1 AII ER 113: (1953) 2 QB 18: (1953) 2 WLR 995.
14
Sahni Silk Mills Ltd. v. ESI Corpn., (1994) 5 SCC 346 (352).
15
Bombay Municipal Crpn. V. Thondu, AIR 1965 SC 1486: (1965) 2 SCR 929 (932).
16
AIR 1959 SC 308 (327); 1959 Supp (1) SCR 319.
passed by the Minister, Subba Rao, J. Held that it was not a judicial hearing. “if one person hears
and another decides, personal hearing becomes an empty formality.”

At the same time, practical difficulties must also be appreciated. It is not possible for all judicial
and quasi-judicial authorities to take the entire evidence in all cases, hear the parties and their
representatives or advocates, and give decisions. In these circumstances courts have allowed
some relaxation and held that it is permissible for judicial or quasi-judicial bodies to delegate
certain functions, e.g. holding of inquiries, taking of evidence, hearing of parties and to appoint
assistants for the said purposes, provided always that after receiving evidence in the aforesaid
manner they give an opportunity to the parties to clarify their stand before a decision is finally
arrived at by them. It is submitted that the following observations of Mahajan, in the leading case
of Delhi Laws Act, 1912 in re17, lay down correct law on the point, wherein his Lordship stated:

“No public functionary can himself perform all the duties he is privileged to perform, unaided by
agents and delegates, but from this circumstance it does not follow that he can delegate the
exercise of his judgment and discretion to others. The judges are not allowed to surrender their
judgment to others. The judges are not allowed to surrender their judgment to others. It is they
and they alone who are trusted with the decision of a case.”18

(C)SUB-DELEGATION OF ADMINISTRATIVE POWER:

In certain circumstances and on certain conditions, administrative power can be sub-delegated.

Exclusion of judicial review:

the rule of law has always recognised power of judiciary to review legislative and quasi-
legislative acts. The validity of a delegated legislation can be challenged in a court of law. As
early as 1877 in Empress v. Burah19, the High Court of Calcutta High Court was reversed by the
Privy Council20, neither before the High Court nor before the Privy Council it was even
contended that the court had no power of judicial review and, therefore, cannot decide the
validity of the legislation.

Sometimes, however, attempts are made by the legislature to limit or exclude judicial review of
delegated legislation by providing different modes and methods. Thus, in an Act a provision may
be made that rules, regulations, bye;laws, etc. made under it “shall have effect as if enacted in the
Act” shall be final; “shall be conclusive”, “shall not be called in question in any court”, “shall
not be challenged in any legal proceedings whatsoever” and the like. The question is whether in
view of these provisions judicial review of delegated legislation is ousted?

17
AIR 1951 SC 332: 1951 SCR 747.
18
Murray v. Hoboken, (1856) HOW 272, 284: “we do not consider Congress can withdraw from judicial cognizance
any matter which from its nature, is the subject of a suit at the common law, or in equity, or inadmiralty.”
19
ILR 3 Cal 64: 1 CLR 161.
20
R v. Burah, (1878) 3 SC 889: 51A 178: 4 Cal 172.
Ex: finality clauses

Sometimes, provisions are made in a statute by which the orders passed by administrative
tribunals or other authorities are made final. This is known as statutory finality. Such clauses are
of two types:

(i) Sometimes no provision is made for filing any appeal, revision or reference to any higher
authority against an order passed by the administrative tribunal or authority; and
(ii) Sometimes an order passed by the administrative authority or tribunal is made final and
jurisdiction of civil court is expressly ousted.

With regard to the first type of finality, there can be no objection, as no one has an inherent right
to appeal. It is merely a statutory right and if the statute does not confer that right on any party
and treats the decision of the lower authority as final, no appeal can be filed against that
decision.

CONTROL OF SUB-DELEGATED:

All the fundamental principles which apply to the functioning of an administrative authority
exercising its powers, whether legislative, judicial or quasi-judicial would apply to control the
sub-delegated legislation as well. One basic principle is that a sub-delegate cannot act beyond
the scope of power sub-delegated to him. If the sub-delegation is conditional, then it is necessary
that sub-delegate must observe the conditions otherwise his action will be ultravires.
CRITICISM

The practice of sub-delegation has been heavily criticized by jurists. It is well established that
the maxim delegatus non potest delegare (a delegate cannot further delegate) applies in the field
of delegated legislation also and sub-delegation of power is not permissible unless the said
power is conferred either expressly or by necessary implication. de Smith says, “there is strong
presumption against construing a grant of delegated legislative power as empowering the
delegate to sub-delegate the whole or any substantial part of the law-making power entrusted to
it.” Bachawat, J. in the leading case of Barium Chemicals Ltd. v. Company Law Board states:
“The naming of a delegate to do an act involving a discretion indicates that the delegate was
selected because of his peculiar skill and the confidence reposed in him, and there is a
presumption that he is required to do the act himself and cannot re-delegate his authority.

It is also said, sub-delegation at several stages removed from the source dilutes accountability of
the administrative authority and weakens the safeguards granted by the Act. It becomes difficult
for the people to know whether the officer is acting within his prescribed sphere of authority. It
also transfers power from a higher to a hierarchically lower authority. It is, therefore, necessary
to limit in some way the degrees to which sub-delegation may proceed.

‟Finally, there are serious difficulties about publication of sub-delegated legislation. Such
legislation, not being an Act of Legislature, there is no general statutory requirement of
publicity. ‘Though casually made by a minor official, sub-delegation creates a rule and set up a
standard of a conduct for all to whom the rule applies. No individual can ignore the rule with
impunity. But at the same time the general public must have access to the law and they should
be given an opportunity to know the law. In case of such delegated and sub-delegated
legislation, proper publication is lacking.
 BIBLIOGRAPHY:

Books:

Administrative law : IP Messy

M.P. Jain & S.N. Jain, Principles of Administrative law, 6th edition 2011

Websites:

www.manupatra.com

www.westlaw.com

www.sscrn.com

www.ssc.com

www.legalservices.com

www.articlesbase.com

www.legalquest.in/index.php/students/.../415-sub-delegation.html