A Project OnRole and Importance of Sub-Delegated Legislation For partial fulfilment of assessment of Administrative law Submitted by Baby Ramya Division C, 36 BA LLB Symbiosis Law School, NOIDA Symbiosis International University, PUNE Under the guidance of Prof. Vikram Singh Course in Charge, Administrative Law Symbiosis Law School, NOIDA 201301 ON 2012-08-09
CertificateThe project entitled “Role and Importance of Sub-delegated Legislation” submitted to theSymbiosis Law School, NOIDA for Administrative Law as part of internal assessment is myoriginal work carried out under the guidance of Prof. Vikram Singh from 10th August to 15thOctober. The research work has not been submitted elsewhere for award of any publication ordegree.The material borrowed from other sources and incorporated in the work has been dulyacknowledged. I understand that I myself could be held responsible and accountable forplagiarism, if any, detected later on.Signature of the candidateDate:
AcknowledgmentI owe a great many thanks to a great many people who helped and supported me during thecompletion of the project.My deepest thanks to Dr. Girijesh Shukla the Guide of the project for guiding and correctingvarious documents of mine with attention and care. She has taken pain to go through theproject and make necessary correction as and when needed.I would also thank my Institution and my faculty members without whom this project wouldhave been a distant reality. I also extend my heartfelt thanks to my family and well wishers.
Introduction:Delegated legislation:Salmond defines – “Subordinate legislation is that which proceeds from any authority otherthan the sovereign power, and is therefore dependent for its continued existence and validityon some superior or supreme authority.”Sir Cecil Carr defines – “Delegated legislation is a growing child called upon to relieve theparent of the strain of overwork and capable of attending to minor matters, while the parentmanagers the main business. The delegated legislation is so multitudinous that the statutebook would not only be incomplete but misleading unless it be read along with the delegatedlegislation which implies and amends it.”A portion of law-making power of the legislative is conferred or bestowed upon a subordinateauthority. Rules & regulations which are to be framed by the latter constitute an integralportion 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 sovereignauthority, namely, the legislature. According to Sir John Salmond,* "Subordinate legislationis 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 orother statutory instruments which are exercised by specified subordinate authorities. Suchlegislation 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 whichconcepts are totally different to each other. Coming to the topic Sub-delegated Legislation itsrole and importance. Sub-delegated legislation:Definition:Sub Delegation – (Delegatus non potest delegare) „When a statute confers some legislativepowers on an executive authority and the latter further delegates those powers to anothersubordinate author or agency, it is called „sub-delegation.‟Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may gothrough 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 bethe first-stage delegation. Under Section 5, the Central Government is empowered to delegatepowers to its officers, the State Governments and their officers.Usually under this provision, the powers are delegated to State Governments. This can besaid to be the second-stage delegation (sub-delegation). When the power is further delegatedby 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 SugarControl Order, 1955 was made by the Central Government (first-stage delegation). Under theOrder, certain functions and powers are conferred on the Textile Commissioner (second-stage
delegation). Clause 10 empowered the Textile Commissioner to authorize any officer toexercise on his behalf all or any of his functions and powers under the Order (third-stagedelegation).Object:The necessity of sub-delegation is sought to be supported, inter alia, on the followinggrounds:1. Power of delegation necessarily carries with it power of further delegation; and2. Sub-delegation is ancillary to delegated legislation; and any objection to the said process islikely to subvert the authority which the legislature delegates to the executive.Sub-delegation of legislative power can be permitted either when such power is expresslyconferred 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, nodifficulty arises as to its validity since such sub-delegation is within the terms of the statuteitself. Thus, in Central Talkies Ltd. v. Dwarka Prasad,1 the U.P. (Temporary) Control ofRent and Eviction Act, 1947 provided that no suit shall be filed for the eviction of a tenantwithout permission either of a District Magistrate or any officer authorized by him to performany of his functions under the Act. An order granting permission by the Additional DistrictMagistrate to whom the powers were delegated was held valid.On the other hand, in Ganpati Singhji v. State of Ajmer2, the parent Act empowered theChief Commissioner to make rules for the establishment of proper system of conservancy andsanitation at fairs. The rules made by the Chief Commissioner, however, empowered theDistrict Magistrate to devise his own system and see that it was observed. The Supreme Courtdeclared the rules ultra vires as the parent Act conferred the power on the ChiefCommissioner and not on the District Magistrate and, therefore, the action of the ChiefCommissioner sub-delegating that power to the District Magistrate was invalid. Sometimes, astatute permits sub-delegation to authorities or officers not below a particular rank or in aparticular manner only. As per settled law “if the statute directs that certain acts shall be donein a specified manner or by certain persons, their performance in any other manner than thatspecified or by any other person than one of those named is impliedly prohibited.” In otherwords, „where a power is given to do a certain thing in a certain way, the thing must be donein that way or not at all‟.1 1961 AIR 606, 1961 SCR (3) 4952 1955 AIR 188, 1955 SCR (1)1065
Implied power:But what would happen if there is no specific or express provision in the statute permittingsub-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) wasconvenient 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. Griffithrightly states, “if the statute is so widely phrased that two or more „tiers‟ of sub-delegationare necessary to reduce it to specialized rules on which action can be based, then it may bethat the courts will imply the power to make the necessary sub-delegated legislation.”In States v. Baren,3 the parent Act conferred on the President the power to make regulationsconcerning exports and provided that unless otherwise directed the functions of the Presidentshould 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 thenexercise the power provided that it so wants. In Godavari v. State of Maharashtra4, thepower of detention was conferred on the State Government under the Defence of India Rulesbut it was sub-delegated to the District Magistrate. It was held the power could be exercisedeither by the District Magistrate or the State Government. In such a case both principalauthority and delegate will have concurrent jurisdiction.Sub-delegation can be studied under three sub-heads: (a) Sub-delegation of legislative power. (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 tolegislation also and it is not possible for the delegate to sub-delegate the power conferred onhim unless the parent Act authorises him to do so either expressly or by necessaryimplication. Assuming that the sub-delegation is permissible under the parent Act, what arethe limitations and safeguards in this behalf?Here, the following propositions may be laid down:3 No. 95–10369. September 04, 19964 1964 AIR 1128, 1964 SCR (6) 446
(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 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.85 Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619: (1965) 2 SCR 845.6 (1949) 1 KB 349: (1948) 1 All ER 85.7 Radhakrishan v. State, AIR 1952 Nag 387.8 Naraindas v. State of M.P., (1974) 4 SCC 788; AIR 1974 SC 1232
(b)Sub-delegation of Judicial Power:In England9 and in America10 it is well-established that a judicial or quasi-judicial powerconferred 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 beperformed by one who has not considered evidence or argument. It is not an impersonalobligation. 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 rigourto 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, ajudicial function rarely can be; no judicial tribunal can delegate its functions unless it isenabled 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.”15In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C.16 under the relevant Act andthe Rules the Minister was empowered to hear the parties and to pass the final order, but hedelegated his function of hearing to his Secretary, who heard the parties and put up a notebefore the Minister for final decision and the order was passed by the Minister. Quashing theorders, passed by the Minister, Subba Rao, J. Held that it was not a judicial hearing. “if oneperson 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 alljudicial and quasi-judicial authorities to take the entire evidence in all cases, hear the partiesand their representatives or advocates, and give decisions. In these circumstances courts haveallowed some relaxation and held that it is permissible for judicial or quasi-judicial bodies todelegate certain functions, e.g. holding of inquiries, taking of evidence, hearing of parties andto appoint assistants for the said purposes, provided always that after receiving evidence in9 Halsbury‟s laws of England (4th Edition, volume. 1) at p. 34; de smith, Judicial Review of AdministrativeAction (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 Barnard v. National Dock Labour Board, (1953) 1 All 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.
the aforesaid manner they give an opportunity to the parties to clarify their stand before adecision is finally arrived at by them.It is submitted that the following observations of Mahajan, in the leading case of Delhi LawsAct, 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, unaidedby agents and delegates, but from this circumstance it does not follow that he can delegate theexercise of his judgment and discretion to others. The judges are not allowed to surrendertheir judgment to others. The judges are not allowed to surrender their judgment to others. Itis 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? 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:17 AIR 1951 SC 332: 1951 SCR 747.18 Murray v. Hoboken, (1856) HOW 272, 284: “we do not consider Congress can withdraw from judicialcognizance 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.
(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.21Control of Sub-delegated:All the fundamental principles which apply to the functioning of an administrative authorityexercising its powers, whether legislative, judicial or quasi-judicial would apply to control thesub-delegated legislation as well. One basic principle is that a sub-delegate cannot act beyondthe scope of power sub-delegated to him. If the sub-delegation is conditional, then it isnecessary that sub-delegate must observe the conditions otherwise his action will be ultravires.CriticismThe practice of sub-delegation has been heavily criticized by jurists. It is well established thatthe maxim delegatus non potest delegare (a delegate cannot further delegate) applies in thefield of delegated legislation also and sub-delegation of power is not permissible unless thesaid power is conferred either expressly or by necessary implication. de Smith says, “there isstrong presumption against construing a grant of delegated legislative power as empoweringthe delegate to sub-delegate the whole or any substantial part of the law-making powerentrusted to it.” Bachawat, J. in the leading case of Barium Chemicals Ltd. v. Company LawBoard states: “The naming of a delegate to do an act involving a discretion indicates that thedelegate was selected because of his peculiar skill and the confidence reposed in him, andthere is a presumption that he is required to do the act himself and cannot re-delegate hisauthority.”It is also said, „sub-delegation at several stages removed from the source dilutesaccountability 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 prescribedsphere 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 mayproceed.‟Finally, there are serious difficulties about publication of sub-delegated legislation. Suchlegislation, not being an Act of Legislature, there is no general statutory requirement ofpublicity. „Though casually made by a minor official, sub-delegation creates a rule and sets21 For detailed discussion, as to right of appeal, Thakker, Code of Civil Procedure (2002, Vol.II)
up a standard of a conduct for all to whom the rule applies. No individual can ignore the rulewith impunity. But at the same time the general public must have access to the law and theyshould be given an opportunity to know the law. In case of such delegated and sub-delegatedlegislation, proper publication is lacking.