Sub-Delegated legislation

Introduction

Besides delegation, there also prevails the institution of sub-delegation of legislative powers. Sub-delegation is used on an elaborate scale as an administrative techniques in modern times. Here, the statute confers legislative power on an agency and that agency may further delegate the rule-making power either to itself, its officers or
another person or agency. There are thus, times when the process of delegation from one level to another level goes on four or five degrees removed from the parent Act.

2.       Delegatus non potest delegare

There is a well established maxim- delegatus non potest delegare which means that a delegate cannot further delegate his power unless the parent law permits him to do so. Therefore, a rule-making authority can sub-delegate its legislative power only when parent statute authorizes such delegation. Sub-delegation of legislative power when not authorized by the law is ultra vires. Thus, if a law confers on the Central Government to make rules, it cannot further delegate that power to any other officer unless the parent law itself gives authority to the Government to that effect.

i.                     Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC SC 295

SC held that the maxim delegatus non potest delegare must not be pushed too far. The does not embody a rule of law. It indicates, a rule of construction of a statute or other instrument conferring authority. Sub-delegation of administrative power is permissible provided the control over its exercise is retained by nominee of parliament.

3.       Problems underlying sub-delegation

Sub-delegation raise number of problems. This include whether it is necessary for the delegate to lay down lines of guidance for the sub-delegate follow, or can there a plain and simple sub-delegation without laying down any policy –guidelines for the sub-delegate to observe? 

State of MP v. Haidarali

Under Section 3 of the Essential Supplies Act 1946, the Government of India promulgated the Iron and Steel Order, 1941. Clause 11B of the Order authorized the Iron and Steel Controller to fix the maximum prices at which any iron might be sold by a producer, stockholder or any other person and different prices could be fixed for steel obtained from different sources. HC declared clause 11B invalid on the ground that it conferred a “naked and arbitrary” power on the controller to control prices but it was held valid in case of Bhagwati v. State of U.P. AIR 1957 MP 179 by another HC

Ultra Vires

The Lokh Sabha Committee on Subordinate Legislation has emphasized that sub-delegation should not be made in very wide range or that it should not be made when parent statute is silent on the point. The committee also states that there should be some safe guards imposed before a delegate is allowed to sub-delegate its authority to another functionary. It has objected to wide language used in a statute to permit sub-delegation. 

There is the well established principle that a sub-delegate cannot act beyond the scope of the power delegated to him in case of  Blackpool Corp. v. Locker (1948) 1KB 349. This is principle of ultra vires.

District Collector, Chittoor v. Chittoor District Groundnut Trader’s Assn (1989) 2 SCC 58

SC held that doctrine of ultra vires that a delegate is not entitled to exercise powers in excess or in contravention of the delegate powers. If any order is issued or framed in excess of the powers delegated to the authorities, such order would be illegal and void.

Publication of Sub-delegated legislation

At times, the parent statute may contain a stipulation that all orders made under the  Act should be published in the official Gazette. The question may then arise whether this stipulation applies to the rules made immediately under the Act, or even to the orders made under the rules i.e. to the sub-delegated legislation as well.

Narendra Kumar v. Union of India

SC held that the principles were not legally effective as they were not validly specified due to their non-publication in the Gazette provided under S.3(5) of the Essential Commodities Act 1955, where all orders of the general nature made under Section 3(1) are to be notified in the official Gazette.

Thus, even though the parent Act may not specifically require publication of the sub-delegated legislation, nevertheless, it would be imperative to publish it for its effectiveness and validity.  In case of Babulal Rajoolal v. Emperor AIR 1945 Nag 218, it was held that mere making of sub-delegation is not enough, its publication is essential. The mode of its publication is to be prescribed by the concerned authority and its publication in any other mode is not sufficient.

 Sub-Delegation in England

The maxim is well recognized in UK and thus, a delegate may not sub-delegate his or her own power. However, the parent Act may contain a provision authorizing sub-delegation as in case of Emergency Powers (Defence) Act, 1939 and S. 10(1) of the Licensing Act, 2003 which provides that a licensing committee may sub-delegate the exercise of the functions to a sub-committee of the licensing committee or to an officer of the licensing authority.

 DISCLAIMER

The  above  publication is an academic note prepared for my Semester exam on Administrative Law. Most of the parts in this are either direct reproduction from various books or online sources and sources are not cited here. The major source for this article is from Principle of Administrative Law by M.P. Jain (Jain and Jain). Therefore, the author here bears no responsibility for any suits against  plagiarism or not citing references. Further, readers may only use this article to understand the concepts given here for their  self purpose and not for any commercial purpose. The author takes no responsibility on matters arising out of any use except for personal reading and understanding of the concepts provided here.