UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY

SUB DELEGATION OF LEGISLATIVE POWER

ADMINISTRATIVE LAW

COURSE: B.COM.L.L.B (HONS.)

SEMESTER-IV
JANUARY 2017- MAY 2017

SUBMITTED TO - SUBMITTED BY-

Ms. Imrose Harry Punyani
Roll no. 250/15
Semester-IV
 INDEX

Acknowledgement
1. Chapter I
1.1 Introduction
1.2 Literature view

2. Chapter II
2.1 Sub Delegation- A concept
2.2 Sub delgation in India
2.3 Object of Sub-delegation
2.4 Sub delegation in the USA

3. Chapter III
Conclusion

References

ACKNOWLEDGEMENT

I take this opportunity to express my profound and deep regards to my teacher Ms. Imrose for
her exemplary guidance, monitoring and constant encouragement throughout the course. The
help, guidance given by her time to time shall carry a long way in the journey of life on
which I am about to embark.
Date : 14.04.2017 Harry Punyani

Chapter I

INTRODUCTION
Delegation (or non-delegation) of legislative power has been a subject of discussion in the
United States for centuries. In constitutional and administrative law, the principle delegata
potestas non potest delegari declares that no delegated powers can be further delegated. On
the other hand, it can be stated delegatus non potest delegare, one to whom power is
delegated cannot himself further delegate that power.
The Legislative cannot shift the Power of Making Laws to any other hands. For it being but a
delegated Power from the People, they, who have it, cannot pass it over to others. The power
of the Legislative being derived from the People by a positive voluntary Grant and
Institution, can be no other, than what the positive Grant conveyed, which being only to make
Laws, and not to make Legislators, the Legislative can have no power to transfer their
Authority of making laws, and place it in other hands.
Under constitutional separation-of-powers provisions, laws are enacted by the legislature,
administered by the executive and interpreted by the judiciary. Can legislatures be expected
to ratify statutes that address every minute detail of policy? The most probable answer is
no. Therefore, it may be realistic to permit delegation of some legislative powers.
Questions typically arise, however, over which powers can be delegated, to whom and to
what extent.
The U.S. Supreme Court has allowed some delegation of legislative power. In Wayman v.
Southard1 and in Mistretta v.United States2.

In India the law was first stated in A.K ROY v. State Of Punjab,3 that sub delegation of
delegated power is ultra vires to the Enabling Act.

LITERATURE REVIEW
Due to the adoption of the doctrine of separation of powers by United States legislative
powers have to be exercised by the Congress and it cannot be delegated to any other organ of
the government.
Further, it is argued that since Congress was a delegate, it could not further delegate its
power. However, strict obedience to these principles soon proved to be unfeasible as the State
undertook several economic and social functions.
Therefore, the Supreme Court of the United States has made a distinction between essential
legislative powers and non-essential powers and has held that the essential legislative powers
cannot be delegated.
In India, the question of permissible limits of delegation legislative power arose soon after
Indias independence. In Jitendra Nath v. Province of Bihar 4, the Federal Court in India held
that there could be no delegation of legislative powers beyond conditional legislation. The
decision however, in this case created confusion. In cast a shadow on many laws which
contained similar provisions.
With a view to removing doubts as to the validity of delegation, the President of India under
Article 143 of the Constitution invited the Supreme Court to give its opinion by referring
three Central Acts, namely Section 7 of the Delhi Laws Act, 1912; Section 2 of the Ajmer-
Marwar Act, 1947 and Section 2 of the Part C States Act, 1950.

1 (1825)
2 (1989),
3 (1986) 4 SCC 326
4 (A.I.R. 1949 F.C. 175)
On close examination of various judgements delivered in the reference case, two different
points of view were presented to the Court. One, delegation to the executive was essential.
On the other hand, it was contended that there existed an implied prohibition against
delegation of legislative power by the Parliament.
The Supreme Court took a via media between these distinct views. While it accepted that
delegation of legislative power was ancillary to legislation, it observed that Parliament cannot
delegate the essential legislative powers. It can delegate the power of filing up of details or of
supplementing the legislation to the executive.

Chapter II
Concept : Sub Delegation
A sub delegation arises when legislative power is sub delegated by the person or body to
whom the power has been delegated. Subordinate legislation that includes a sub delegation
would be invalid if the empowering Act does not permit the subordinate legislation to include
the sub delegation. For example, unauthorised sub delegation would arise if an Act authorises
the Governor in Council to make a regulation to deal with an issue, but the regulation the
Governor in Council makes does not substantively deal with the issue itself and instead claim
to permit a chief executive to deal substantively with the issue under a public notice. 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
produce children up to four or five degree.
The reason behind the Doctrine of Separation was to avoid autocracy. According to the
doctrine the three bodies i.e. Judiciary, Executive and Legislature cannot exercise powers of
each other. They are conferred with the powers and they are limited to that ambit. The
Presidential form of Government in the U.S.A is based on the doctrine of separation of
powers. Though this doctrine is not strictly functional in the United States, and some
exceptions to this doctrine are accepted in the Constitution of United States itself. The
doctrine of Separation of Powers makes the base on which the entire structure of
the Constitution is found. It has been accepted and strictly adopted in U.S.A:
Article I; Section 1 vests the entire legislative powers in the Congress.
Article II; Section 1 vest all executive powers in the President and
Article III; Section 1 vest all judicial powers in the Supreme Court.
Congress has the exclusive power to legislate for the U.S. Under the non-delegation doctrine,
Congress may not delegate its lawmaking responsibilities to anyone else. It has the sole
power to legislate, to make laws and it has all other powers vested in the government by
the Constitution. Where Congress does not make vast and sweeping delegations of its
authority, the Supreme Court has been less severe. Congress had delegated to the courts the
power to recommend judicial procedure.
In India, Parliament is capable to make any law subject to the provisions of
the Constitution and there is no other restraint on it legislative power.

SUB DELGATION IN INDIA

Held in A.K Roy v. State of Punjab5 that Sometimes, a statute permits sub-delegation to
authorities or officers not below a particular rank or in a particular manner only. If the statute
directs that certain acts shall be done in a specified manner or by certain persons, their

5 (1986) 4 SCC 326: AIR 1986 SC 2160

performance in any other manner than that specified or by any other person than one of those
named is impliedly prohibited.
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).
Ganesh Narayan And Ors. vs Commissioner, Nagpur Division, it was held that
a delegate cannot further delegate its powers. It was canvassed that the Legislature was
a delegate of people for the purpose of Legislation. It may be stated that at one time it had
been canvassed in India courts that the India Legislature was a delegate of Parliament and
therefore it had no power.
Ajaib Singh v. Gurbachan Singh6 it was held that where the law lays down mode, method or
manner of exercising power of sub-delegation, it must be excercised by the said mode or in
the same manner or by the same method.
Naraindas Indurkhya v. State of M.P.7, the Supreme Court held that if sub-delegation is to be
made through regulations, it could not be affected by passing a resolution.

Object of Sub-delegation
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

6 AIR 1965 SC 1619: (1965) 2 SCR 845

7 (1974) 4 SCC 788: AIR 1974 SC 1232
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. 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 Prasad8, 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 9, the
parent Act empowered the Chief Commissioner to make rules for the establishment of proper
system of conservancy and 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.
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 Maharashtra, 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. 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 authorizes 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:

8 1961 AIR 606

9 1961 SCR (3) 4952 1955 AIR 188
(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.
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. Locker10, 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 requisitioned and plaintiffs 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. Similarly, if sub-delegation can be made through regulations, it could
not be affected by passing a resolution.

10 (1948) I KB 349: (1948) I All ER 85

Reasons for Growth
1. Law making or ever widening modern welfare and service state is not possible. For
the nature and quality of work required 365 days may not be sufficient and if
overburdened the parliament cant give quality legislation. Also it is occupied with
important policy matters and rarely finds time to discuss matters of details.
2. Filling in Details of legislation- The executive in consultation with the experts or
with its own experience of local conditions can better improvise. Also legislation has
become highly technical because of the complexities of a modern govt.
3. Need for flexibility: - Ordinary legislative process suffers from the limitation of lack
of experiment. A law can be repeated by parliament itself, if it required adjustment
administrative rule making is the only answer between two sessions.
4. Meeting Emergency Situations it is a cushion against crisis because what if crisis
legislation is needed.
5. When Govt. action required discretion rule making power of administrative
agencies is needed when the government needs to have discretion to carry out the
policy objectives.
6. Direct participation of those who are governed is mere possible in delegated
legislation.

Sub delegation in the USA: -

Two principals operate in the USA these are:

1. Separation of Power.
2. Delegatus non potest delegare.
Since congress was itself a delegate, how can it delegate its power.
Article 1, Section 1: All legislative powers herein granted shall be vested in the Congress of
the United States, which shall consist of a Senate and House of Representatives.
The rule against the delegation of legislative powers, if there is such a rule, is broader than
any doctrine of separation of powers. That part of its which forbids the delegation of powers
to other branches or the government comes within the doctrine of separation of powers. That
part of it which forbids the delegation of powers to independent boards or commissions rests
upon the maxim delegata potestas non potest delegare."
In Panama Refining Co. v. Ryan11 Chief Justice Hughes very clearly stated "that the Congress
manifestly is not permitted to abdicate or transfer to others the essential legislative functions
with which it is invested." "In every case," the learned Chief Justice continued, "in which the
question has been raised the court has recognized that there are limits of delegation which

11 293 U.S. 388

there is no constitutional authority to transcend. We think that section 9(c) goes beyond those
limits; as to transportation of oil production in excess of state permission the Congress has
declared no policy, has established no standard, and has laid down no rule. There is no
requirement, no definition of circumstances and conditions in which the transportation is to
be allowed or prohibited.
It is interesting to note that in the later case of Schechter Poultry Corporation12, where the
legislative power was held to be unconstitutionally delegated by the provision of section 3 of
the National Industrial Recovery Act of 1933 as no definite standard was set up or indicated
by the legislature.
The maxim delegates non potest delegare is sometimes spoken of as laying down a rule of the
law of agency; its ambit is certainly wider than that and it is made use of in various fields of
law as a doctrine which prohibits a person upon whom a duty or office has developed or trust
has been imposed from delegating his duties or powers to other persons. The introduction of
this maxim into the constitutional field cannot be said to be altogether unwarranted, though
its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is
essential that the authority attempting to delegate its powers must itself be a delegate of some
other authority. The legislature, as it exists in India at present day, undoubtedly in the creature
of the Indian Constitution, which defines its powers and lays down its duties; and the
Constitution itself is a gift of the people of India to themselves. But it is not a sound political
theory, which the legislature acts merely as a delegate of the people.
Wayman v. Southend13 the observations of Marshall C.J. that the line has not been exactly
drawn which separates those important subjects which must be entirely regulated by the
legislature itself from those of less interest in which a general provision may be made and
power given to those who are to act under such general provision to fill up details, the author
points out that the resulting judicial dilemma, when the American courts finally were squarely
confronted with delegation cases, was resolved by the judicious choice of words to describe
the word "delegated power". The authority transferred was, in Justice Holmes' felicitous
phrase, "softened by a quasi", and the courts were thus able to grant the fact of delegated
legislation and still to deny the name. "Major premise: Legislative power cannot be
constitutionally delegated by Congress.

12 295 U.S. 495

13 Wheat 1 U.S. 1825
Minor premise: It is essential that certain powers be delegated to administrative officers and
regulatory commissions.
Chapter III
Conclusion
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
thefield of delegated legislation also and sub-delegation of power is not permissible unless
they 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 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 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.

References:
Books:
1. Dr. J.J.R. Upadhyaya, Administrative law, 7th Edition (Central Law Agency) 2010.
2. Sathe, Admistrative Law, 7th edition (LexisNexis Butterworth Wadhwa Nagpur),
2012.

Websites:
1. www.sscrn.com www.ssc.com
2. www.legalservices.com
3. www.articlesbase.com
4. www.legalquest.in/index.php/students/.../415-sub-delegation.html