Post on 14-Nov-2014
description
ROLE AND IMPORTANCE OF SUB-DELEGATED
LEGISLATION
Presented by:
Baby Ramya Muppirisetty
BA.,LLB
Roll.No: 36
DEFINITION
Sub Delegation – (Delegatus non potest
delegare) ‘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.’
OBJECT
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
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.
EXPRESS POWERWhere 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.
Ganpati Singhji v. State of Ajmer, 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.
1955 AIR 188, 1955 SCR (1)1065
“Where a power is given to do a certain
thing in a certain way, the thing must
be done in that way or not at all”.
IMPLIED POWER
Griffith rightly states, “if the statute is so
widely phrased that two or more ‘tiers’ of sub-
delegation are necessary to reduce it to
specialized rules on which action can be based,
then it may be that the courts will imply the
power to make the necessary sub-delegated
legislation.”
SUB-DELEGATED OF LEGISLATIVE POWER
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 authorises him to do so
either expressly or by necessary implication.
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.
Sub delegate cannot act beyond the power conferred
on him by the delegate.
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.
SUB-DELEGATION OF JUDICIAL POWER
It is well-established that a judicial or quasi-
judicial power conferred on a particular
authority by a statute must be exercised by that
authority and cannot be delegated to anyone
unless such delegation is authorised by the
statute either expressly or by necessary
implication.
Mahajan, in the leading case of Delhi Laws Act, 1912 in
re, 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, unaided by agents and
delegates, but from this circumstance it does not follow that
he can delegate the exercise of his judgment and discretion
to others. The judges are not allowed to surrender their
judgment to others. It is they and they alone who are
trusted with the decision of a case.
SUB-DELEGATION OF ADMINISTRATIVE POWER
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. Burah, the High Court of Calcutta High
Court was reversed by the Privy Council, 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.
CONCLUSION
‘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.’
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 sets 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.