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. 

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

Benefits of Big Brother's competition

Since the visit of Jewaharal Nehru's first visit in Bhutan 1958, Bhutan's five plan has been largely financed by India and in the current five year plan, Government of India agreed to provide Four Thousand Five Hundred Crores of Rupees. But with such huge assistance, the small nations like Bhutan are also seeing more and more political pressure into the sovereignty of the
statehood.

Existence of China and India, other small South Asian countries are often seen to be indirectly involved in the Indo-China cold war. There were many speculations that the second parliamentary election was indirectly affected by India as India withdrew its subsidy on LPG in Bhutan. Including the many Indian media both print and broadcast speculated that, the subsidy was withdrawn owing to meeting of the former Prime Minister of Bhutan and Chinese Première in Rio in 2012. With the renewal of 1947 Indo-Bhutan Friendship Treaty in 2007 gave complete control over its foreign policy which was earlier under the guidance of New Delhi where during the period five years of first government established numerous diplomatic ties.

Immediately, upon the change in Indian Government, the Mr. Narenda Modi, India's new Prime Minister first made his foreign trip to Bhutan assuring that India's commitment to continue its support for Bhutan, followed by visit by Indian President in few months and then Bhutanese Prime Minister to participate in the Gurjat Vibrant.

In the past, there are also reports that India is losing its grip on her neighbours to its arch rival China in recent times, quoting Nepal as an example. With the BJP in power, Narenda Modi affirmed that he would first strengthen the close friendship with all its members. As a result, for the first time in Indian history, he invited all Heads of the governments of SAARC Members to his Swearing Ceremony held in New Delhi including Pakistan.

Now, in the recent election in Srilanka, there were many speculations that Indian played a role in ousting the former President Rajapaksa as former President was seen pro-china where Sri Lanka allowed its land to be used by China  for various purposes including some defense. However, with the new Government in Sri Lank, just a month old, went ahead with the former government's proposal on the bilateral project between Sri Lank and China which many speculate that would irk the Indian Government.

Both, India and China has also been heavily investing in Maldives, Myanmar and other neighours in wake of their increasing power in the world.

The positive about such steps of these two giant nations are that the small nations like Bhutan, Nepal, Sri Lanka or Maldives are getting assisted in its development and enjoys lots of benefits from both the countries. This may range free trade, commerce, FDIs, education, cultural exchanges and conservation of environment. However, the hind side of such rivalry between these nations are, compromise on the security of all the smaller states, inability to settle borders disputes more easily as well as their interference in the internal matters indirectly through trade and commerce or other economical sanctions such as withdrawal of subsidies provided or bilateral projects as well as political pressure to accept some projects.

It is therefore, would be more appropriate that while maintaining good relations with both these two giant brother, small states must also come together to form sub-regional groups to exchange and strengthen its sovereignty and foster its economic ties across the sub-continent. This is seen as SAARC has been much failed Regional Body as all its major decision remained deadlocked due to Indo-Pakistan relations including the last SAARC Summit held in Nepal where SAARC Regional Transport could be realized as Pakistan rejected the proposal citing its administrative procedure.

Benefits of Big Brother's competition

Since the visit of Jewaharal Nehru's first visit in Bhutan 1958, Bhutan's five plan has been largely financed by India and in the current five year plan, Government of India agreed to provide Four Thousand Five Hundred Crores of Rupees. But with such huge assistance, the small nations like Bhutan are also seeing more and more political pressure into the sovereignty of the

Expect the unexpected in my Journey: Drama Part 2

The drama

I myself considers to be very punctual n in fact i am. This morning is no exception. My flight is scheduled at half past noon. I reached the Airport by just seven past in the morning. This leaves me enough time leisure time while I wait the flight. As usual, i looked at the flight display information. I found that my flight information is no where to be seen. I went to an information desk and asked about it.
To my shock and surprise, the flight early morning at half past two. I searched for official of the airline but no one could be traceable. So the drama unfurled and I wrote this end at the end of day.

Dear Make My trip

I would like to bring to your attention on the following two broad headings.

Sub: Reschedule of the flight

I booked a round trip flight from Mumbai-Narita and Narita Mumbai bearing Booking ID: NN2301010373878 dated Fri 13 Feb 2015.  The fight details were

Fri 13 November 2015 from Mumbai to Narita departure scheduled at 12:25hrs. Accordingly, I reserved a taxi and train to travel from Pune to Mumbai to catch the fight. I arrived in Mumbai Airport at around 7:00AM early morning.

I looked at the diplay board and waited the flight information to be displayed. But it never got displayed and I inquired about the flight through one of the information desk at the Airport. To my utter shock and surprise, I was informed that the said flight departed early in the morning at around 2:30hrs.

I finally had to reschedule the flight and had to pay Rs. 12939 (Twelve Thousand Nine hundred and thirty nine only) as no show penalty and to reschedule charge.

IN this regard, I must inform you that the Rs. 12939 may be reimbursed as soon as possible as I have never been communicated on the reschedule (change in time of the departure) by your good office in any form (Telephone, SMS or Emai or otherwise) nor by the Airline. Therefore, I take no responsibility to bear the extra payment I made except I paid to just to depart at the earliest as this trip has been planned since January and I purchased the ticket by February. This message has been communicated to your staff through out the day very clearly and explicitly again and again and they also informed that if I am not at fault, the payment would be reimbursed. Therefore, your good office is kindly requested to immediately reimburse the amount and may fix the accountability as deemed fit.

Daylong harassment and mental torture

I must also bring in detail how I managed to get my flight itinerary.

As soon  as I realized that the flight has left, I called your call center (1-800-102-8747) to inform about the flight departure and seeking your office help to get me onto another flight.

First call receiver asked me to meet any Malaysian Airline staff in the Airport to discuss the matter agreeing that I was not served any notice or informed of the change and even he is unaware of the reschedule. Actually, I know that is not my responsibility to contact the Airline because I did not buy the ticket from Airline and Airline is only a third party. But as a matter of courtesy, I did try to contact the Airline but I was informed that since there was no other flight in the day, no staff of the said Airline would be available in the Airport.

I then made the second attempt to make call to your center and this time, it was picked by another male staff. He told me that, since its early morning and Airline office not yet open, I need to wait and in the mean time,  he will contact the Airline as soon as it is open and will get back to me. I waited almost till 11:00hrs. But he never contacted me.

I had to then make the third  call, I was greeted by female staff Named Neha. I had narrate everything from beginning to end, what happened. She kept me on hold for about an hour and told me that if I want to travel, I have pay little more than Rs. 20000 (Twenty Thousand) as a penalty for no  show and cancellation. To which I refused to pay first convincing her that I was not my fault as I was never informed of the change. She told me that it would be reimbursed if I am found not be liable and that is the only way she can reschedule my flight. I agreed to pay and asked her extension No. which she gave was 2484. Since, my  account did not have  that much money, asked my spouse to pay through her credit card.

Then I called your staff again to get connected to Ms. Neha. But I could never communicate to here thereafter. The call was received by staff Benjamin Ra and he tried to connect me with Neha but even after half an hour I could not get through. He then agreed to help me. I had to again tell every bit of the same  story to him. He kept me on hold for about 2 hours in total, spoke to his superior and Airline. He informed that I had pay the penalty just now as the case has not been verified. This, the amount was Rs. 12939. I tried but could complete the payment due to some technicalities. I told him to wait for some more time and he agreed.

After sometime, I managed to pay the amount Rs. 12939. By that time, I was past three in the afternoon. Since, I could pay the amount, I tried to contact him again but  the call was received by another male staff, so arrogant and disrespectful. I asked him to connect me to Mr. Benjamin since Mr. Benjamin has instructed me to pay the amount by sending me the payment link, the call receiver denied knowing anything about Benjamin and asked me to explain again. I explained everything to him and he kept me almost 20minutes on hold and demands that if I wish to travel, I must pay Rs.4501 or else go home. I pleaded with him and explained to him about the situation and payment advice I received from Mr. Benjamim. This caller made fun of me, talked to me the manner I don’t deserve as he talking as if I m his friend and we playing some game and transferred me to a new booking department and I had again explain everything from beginning, then he told that I was not in his area and refused any further conversation.

Thereafter, I tried to make to contact Mr. Benjamin but could not get through for about half and hour on waiting. By then it was almost 16hrs afternoon. I did not eat lunch not even got a chance to drink a cup of coffee was I was trying to get my issue addressed from early morning. With no further hope and continued harrasement I was searching to file a FIR with the police on this matter and also Tourism Department,  Mr. Banjamin called me and I reported to him about additional payment of Rs.4501 to which he said he has idea as I have made the full payment. If earlier caller did not laugh and joke at me, I would have paid the additional amount also.

Finally, Mr. Banjamin toward late evening informed me that the new ticket has be confirmed and upon the verification of the case, the penalty I paid would be reimbursed as early as possible.

In this regard, I would sincerely thank Mr. Benjamin Ra for his support to make my travel possible finally.

In this chain of events, I would like to inform your good office that I was literally harassed throughout the day  as each time I call, the call was  received by different person and had to explain again and again with almost no result except Mr. Benjamin’s effort. I felt emotionally black mailed by your office to demanding me to pay the penalty or else my trip will not be possible and felt cheated some of staff who tried to ask me to pay so much amount when I was in  such a desperate situation.

I thought that your good office good values and care for customer but now I completed regretted booking through your office and will never in my life time and my family’s lifetime would book any fight or transport of hotels as I have learned a lesson how bad many of your staff are in dealing with customers when we are really in need of your help.

It has been the worst kind of travel arrangement and dealing with such kind of staff in my life and I still feel hurt and mentally tortured the way your office did this to me.

Finally, I would once again reiterate that neither your office nor the airline as ever notified me of the change in departure. And for me, as a travel agent  to whom I bestowed my trust and booked my ticket, you are liable reimburse the penalty I paid today as I  am not at all defaulter and also I paid for your services and it is your duty to inform me of any such changes as it involves lot of effort and expenses for as individual.

Yours Sincerely