SUB DELEGATION

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 POWER :  Where a statute itself authorizes an administrative authority to sub-delegate its powers, nov difficulty arises as to its validity since such sub-delegation is within the terms of the statute itself. 

Ganpati Singhji v. State of Ajmer[1], the parent Act empowered the Chief Commissionerv 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.

 “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 is 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, lays 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 reviewv 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.‟


[1] 1955 AIR 188, 1955 SCR (1)1065

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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