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Admin Law GD Notes

This document discusses the concepts of delegation of legislation and sub-delegation of powers in administrative law. It begins by explaining delegation of powers to the executive in different countries like the UK, USA and India. It then discusses the scope and meaning of delegated legislation. Key principles from case laws on delegation are outlined, including limitations on excessive delegation. Common forms of delegated legislation are described along with an example. The document then examines the concept of sub-delegation, when powers are further delegated by the initial delegatee. General principles, examples and case laws pertaining to sub-delegation are provided. Guidelines for and oversight of sub-delegation are also summarized.

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79 views6 pages

Admin Law GD Notes

This document discusses the concepts of delegation of legislation and sub-delegation of powers in administrative law. It begins by explaining delegation of powers to the executive in different countries like the UK, USA and India. It then discusses the scope and meaning of delegated legislation. Key principles from case laws on delegation are outlined, including limitations on excessive delegation. Common forms of delegated legislation are described along with an example. The document then examines the concept of sub-delegation, when powers are further delegated by the initial delegatee. General principles, examples and case laws pertaining to sub-delegation are provided. Guidelines for and oversight of sub-delegation are also summarized.

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Ahaan Raizada

18010125309
Symbiosis Law School, Pune

SUB-DELEGATION: ADMIN LAW GD

1. INTRODUCTION: PEHLE DELEGATED LEGISLATION SAMAJH LETE HAIN


“Delegation of power is the sacred pool from which sub-delegation arises.”
– Justice Ahaan Raizada

- Delegation of power is when the legislature confers upon the executive (and its agencies) the
powers to legislate (within permissible limits)
- Different models of delegation of powers exist: UK, USA & Indian system

1.1 Factors affecting Growth of Delegated Legislation


a. The idea that governance is becoming increasingly complex; many different sectors
emerge which need different laws- parliament cannot legislate comprehensively for all the
sectors as it does not have time nor expertise- therefore, legislative powers delegated to organs
of the executive to appropriately frame policies
b. Delegated legislation is less cumbrous and more expeditious than Act of Parliament

1.2 UK Model
- Executive has no inherent power to legislate
- Statutory Instruments Act, 1946 governs how orders, rules, regulations and other subordinate
legislation are to be exercised.
- Within the above framework, Ministers of parliament are free to choose the extent of
delegation (cannot delegate on abdication of powers of delegation i.e. can’t delegate any power
to give up powers of delegation) and the areas in which they want to delegate powers.
- Validity of delegated legislation subject to scrutiny of Courts if challenge arises but Courts
cannot rule on validity of extent of delegated legislation.

1.3 USA Model


- USA follows separation of powers unlike UK and India which have parliamentary democracy
(executive and parliament co-ordinate)
- By logic of SOP, executive should not have ability to create delegated legislation
- However, practically broad delegation of power is allowed subject to standards and policies
formulated by Congress intended to serve as a guide to delegatee.
- Like UK, has the Administrative Procedure Act, 1946 (constitution for admin law in USA)
- Federal Register is where delegated legislation is published.

Why Should Congress lay down discernible standards for delegated legislation?
1. Indirectly reflects will of people and reduces scope of administrative arbitrariness
2. Reduces unnecessary exercise of judicial review

2. SCOPE OF “DELEGATED LEGISLATION”- WHAT DOES IT MEAN?


a) Action of exercise of powers delegated to subordinate agency by Legislature OR
b) Subsidiary rules themselves (which are made by the subordinate authority by exercise of its
delegated powers)

2.1 Case laws explaining key principles of Delegation of Power


A. Rasid Javed v. State of U.P (2010) 7 SCC 781
Delegatee must exercise its jurisdiction within the four corners of its delegation and any action
beyond the permissible limits has no legal validity unless ratified by the delegator.

B. In re Delhi Laws Act AIR 1951 SC 332


Laid down the doctrine of EXCESSIVE DELEGATION and the essential functions test:
essential functions cannot be delegated or sub-delegated and must be reserved only for the
legislature.
- Majority endorsed the USA model; Legislature itself must set the essential policy and
standards in delegating powers

C. Sitaram Dayal v. State of U.P AIR 1972 SC 1168


“Excessive” delegation depends on the nature of power delegated and the purpose intended to
be achieved.

D. Gwalior Rayon Co. v. Asst. Commr. Of Sales Tax (1974) 4 SCC 98 (reaffirmed Delhi
Laws)
Legislature has to lay down policy, principle or standard to guide delegate authority and define
the permissible limits of delegation.
- Legislature cannot delegate uncontrolled an excessive powers and neither its essential
functions.
2.2 Common forms of Delegated Legislation (illustrative not exhaustive)
1. Skeleton Legislation- when the delegatee is expected too fill in the details in “necessary” and
“expedient” rules, procedures etc. Basically, admin has very wide powers as bulk of legislation
is done by them within the defined limits of the parents act.

2. Power of inclusion and exclusion- grants executive power to bring individuals, bodies or
commodities within purview of Act of exempt them from it. E.g. removing onions from the
Essential Commodities Act, 1955.

3. Power of modification of statute- includes power to modify or amend the parents statute
itself. Also includes power to amend schedules and ancillary parts of statutes.
- Modification has to necessary, suited to local conditions in which it applies and cannot change
the essential feature and underlying provisions in the Act – Lachmi Narain v. UoI 1976 AIR
714

4. Removal of difficulties- aka Henry VIII clause- to remove any practical difficulties that may
arise in implementation of Act
- Normally time bound power (e.g. 2-3 years) to remove difficulties
- Removal of difficulty cannot change provisions of parent act itself.

5. Power to impose tax


- E.g. Delhi Excise Act conferred power to make and amend rules- Schedule at end of Rules
were amended to impose the “Special Corona Fee” (70% Alcohol Tax).

3. SUB-DELEGATION
Delegatus non potest delgare- no person can further delegate his power unless the parent law
permits him to do so

- Sub-delegation is practically widely used in administration for the same reasons as delegated
legislation is employed:
a. Saves time and resources
b. It helps the law ideally be more clear as those officers with technical insights and expertise
are legislating.
c. Helps reduce burden of legislation placed upon the legislature and it is more efficient.

3.1 General Principles


- Power of sub-delegation has to be conferred expressly or by necessary implication by the
wordings of the parent statute. – NGEF Ltd. v. Chandra Developers (2005) 8 SCC 219;
Director General, ESI v. T. Abdul Razal (1996) 4 SCC 708
- Sub-delegation is not authorised when the parent act itself is ultra vires or when the statutory
powers to delegate have been wrongfully exercised.

3.2 Example of Sub-Delegation


Essential Commodities Act, 1955 confers rule making power on Central Govt under Section 3.
Furthermore, under Section 5, Central Govt. is empowered to delegate powers to its officers,
the State Governments and their officers. Therefore, when level of delegation reaches at least
two levels, it is characterised as sub-delegation.

3.3 Case Laws


A. Barium Chemicals v. Company Law Board AIR 1967 SC 296
- Court held that the essential functions cannot be delegated even in sub-delegation.
- Further, Court held that sub-delegation of administrative powers is permissible provided the
control over its exercise is retained by nominee of Parliament. (precarious stance imo as cannot
create a blanket generalisation for sub-delegation being permissible while needing it to be
conferred expressly or by necessary implication)

B. UoI v. BV Gopinath AIR 2014 SC 88


- Court held that when parliament has specifically appointed an authority to discharge a
function, it cannot be presumed that that authority has the power to delegate its functions,
whether in part or whole, to another person or body to act in its place.

C. Jaimin Jewelery Export Pvt. Ltd. v. State of Maharashtra 2017


- Bombay HC was to decide if person empowered under General Power of Attorney was
entitled to delegate his powers to another to file a criminal complaint?
- Court held that if the POA specifies that power can be sub-delegated then the authority to
sub-delegate accrues otherwise it would be invalid in law.

D. A.S. Rao & Co. v. Agricultural Market Committee AIR 1977 AP 322
- Andhra HC held that even when a statute does not contain any express provision authorising
sub-delegation, such power can be spelt out by necessary implication from the provisions of
the statute.

E. Laxmi Khandarsi v. Staet of UP AIR 1981 SC 873


- Sugarcane control order was passed under S. 3 of Essential Commodities Act, 1955.
- Clause 8 of the order conferred power on Central Govt. to make orders, directions with respect
to sugarcane production.
- Central Govt. delegated power to Cane Commissioner who made the final order.
- Appellant contended that Clause 8 was invalid as it provided no guidance to the delegate.
- HELD: SC upheld that power conferred under Clause 8 was not arbitrary or unguided as it
derived power from S.3 of the parent act, which had laid out sufficient guidelines.

3.4 Point of Information


1. Whether like in delegation, sub-delegation also requires laying down of guidelines and
standards to be followed?
- Like delegation, sub-delegation is also subject to the doctrine of EXCESSIVE
DELEGATION

2. Whether sub-delegation also has to be publicly published?


- Even if parent act does not expressly require publication of sub-delegation, it is imperative
to publish it for effectiveness and validity- State of Maharshtra v. George AIR 1965 SC 722;
Narendra Kumar v. UoI AIR 1960 SC 430

3.5 Lok Sabha Committee on Subordinate Legislation


- First constituted in December 1953 and has been constituted annually hence.
- Functions of the Committee on Subordinate Legislation are to scrutinize and report to the
House whether the powers to make regulations, rules, sub-rules, bye-laws etc. conferred by the
Constitution or delegated by Parliament are being properly exercised within such delegation.

Over the years, the committee has remarked the following on sub-delegation:
i. Should not be made in very wide language.
ii. Should not be made when parent statute does not provide powers expressly or by
necessary implication.
iii. Doctrine of ultra vires i.e. sub-delegate cannot exercise powers in excess or in
contravention of the delegated powers or else the order so made will be illegal and void-
District Collector Chittoor v. Chittoor District Groundnut Traders’ Association (1989) 2 SCC
58
iv. All sub-delegated legislation in any form should be published in the same manner as the
Rules made under the parent act i.e. in the Official Gazette.

3.6 Laying Sub-Delegated Legislation before the Legislature


- Committee and government disagreed over whether sub-delegated orders and legislation
should also be laid before Parliament when legislation is being laid?
- Govt. of the opinion that it is not practical to expect 1000s of orders to be laid most of which
were ad hoc in nature.
- Committee of view that if such orders are not laid, they would escape parliamentary scrutiny.
- Eventually committee reconciled and agreed with Government.

However, Committee stated that it is necessary to lay sub-delegated legislation made under
the Coal Mines (Conservation and Safety) Rules, 1954 and statutory orders under the
Defence of India Rules, 1971.

3.7 Comparison with U.K & Europe


- Position in UK same as India; parent act must provide for the power to sub-delegate and the
specificities therein.
- In European Communities Act, 1972, Section 2(2) and Schedule 2 prohibit sub-delegation
except for Court and Tribunal procedures.
- Sub-delegated legislation subject to judicial review on grounds of procedural impropriety,
illegality and irrationality- C.C.S.U v. Minister for Civil Service (GCHQ), (1984) 3 All ER
935 HL

! BASICALLY SUB-DELEGATION IS DITTO TO DELEGATION & BAKWAAS HAI ¡

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