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.