A Project On

Role and Importance of Sub-Delegated Legislation

Administrative law

Submitted by
Shivanshu Pandey
Section B, 2012099
BA LLB

Damodaram Sanjivaya National Law University

Visakhapatnam, AP

Under the guidance of

Dr. Sri Devi
Associate Professor

Administrative Law
DSNLU
Visakhapatnam 2012099

Certificate
The project entitled Role and Importance of Sub-delegated Legislation submitted to
Damodaram Sanjivaya National Law University, Visakhapatnam for Administrative Law as
part of internal assessment is my original work carried out under the guidance of Dr. Sri Devi.
The research work has not been submitted elsewhere for award of any publication or degree.
The material borrowed from other sources and incorporated in the work has been duly
acknowledged. I understand that I myself could be held responsible and accountable for
plagiarism, if any, detected later on.

Signature of the candidate

Date:

Acknowledgment
I owe a great many thanks to a great many people who helped and supported me during the
completion of the project.
My deepest thanks to Mr. Himanshu Pandey the Guide of the project for guiding and
correcting various documents of mine with attention and care. She has taken pain to go
through the project and make necessary correction as and when needed.
I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

INDEX

Introduction: ................................................................................................. 5
Essential characteristics of Delegated Legislation: ................................... 5
Types of delegated legislation....................................................................... 6
Sub-delegated legislation: ............................................................................ 7
Express Power: .............................................................................................. 7
Implied power: .............................................................................................. 8
Concurrent Jurisdiction: ............................................................................. 9
Sub-delegation can be studied under three sub-heads: ............................. 9
Sub-delegation of legislative power. ..............................................................
Sub-delegation of judicial power. ...................................................................
Sub-delegation of administrative power. ........................................................
Criticism................................................................................................. 14
Conclusion
Bibliography:

A. INTRODUCTION:
Delegated legislation:
Salmond defines Subordinate legislation is 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.
Sir Cecil Carr defines Delegated legislation is a growing child called upon to
relieve the parent of the strain of overwork and capable of attending to minor matters, while
the parent managers the main business. The delegated legislation is so multitudinous that the
statute book would not only be incomplete but misleading unless it be read along with the
delegated legislation which implies and amends it.
A portion of law-making power of the legislative is conferred or bestowed upon a
subordinate authority. Rules & regulations which are to be framed by the latter constitute an
integral portion of the statute itself. It is within power of parliament when legislating within
its legislative few, to confer suborbital administrative & legislative powers upon some other
authority.
Subordinate legislation, is the legislation made by an authority subordinate to the
sovereign authority, namely, the legislature. According to Sir John Salmond, Subordinate
legislation is 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, byLaws or other statutory instruments which are exercised by specified subordinate authorities.
Such legislation is to be made within the framework of the powers so delegated by the
legislature and is, therefore, known as delegated legislation.
Essential characteristics of Delegated Legislation:
1. The rules should contain short titles, explanatory notes, reference to earlier
2.
3.
4.
5.
6.

amendments, etc. for clear understanding.

No extra-ordinary delay shall occur in making the subordinate legislation.
The administrative authority should not travel beyond the powers given in Parent Act.
Essential legislative functions cannot be delegated.
Sub-delegation (Delegatus non potest delegare) is not encouraged.
General rules should not be framed with retrospective operation, unless and until the
parent Act instructs to do so.
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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
which concepts are totally different to each other.

B. SUB-DELEGATED LEGISLATION:
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.
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 beget
descendants up to 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 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).
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, 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 Prasad,1 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

1 1961 AIR 606, 1961 SCR (3) 495

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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 2, 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. As per settled law if the statute directs that certain acts shall be done
in a specified manner or by certain persons, their performance in any other manner than that
specified or by any other person than one of those named is impliedly prohibited. In other
words, 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:
But what would happen if there is no specific or express provision in the statute
permitting sub-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) was convenient 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.
Griffith rightly states, if the statute is so widely phrased that two or more tiers of subdelegation 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.
In States v. Baren,3 the parent Act conferred on the President the power to make
regulations concerning exports and provided that unless otherwise directed the functions of
2 1955 AIR 188, 1955 SCR (1)1065
3 No.9510369. September 04, 1996
8

the President should be performed by the Board of Economic Welfare. The Board subdelegated the power to its Executive Director, who further sub-delegated it to his assistant,
who in turn delegated it to some officials. The court held all the sub-delegations valid.

C. CONCURRENT JURISDICTION:
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 Maharashtra4, 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.
Sub-delegation can be studied under three sub-heads:
(a)
(b)
(c)
(a)

Sub-delegation of legislative power.

Sub-delegation of judicial power.
Sub-delegation of administrative power.
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. 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:
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

4 1964 AIR 1128, 1964 SCR (6) 446

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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
requisitioned 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.7
Similarly, if sub-delegation can be made through regulations, it could not be affected by
passing a resolution.8

5 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
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(b) Sub-delegation of Judicial Power:

In England9 and in America10 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.
In Morgan v. U.S.11 the Supreme Court of America held that the duty to decide cannot
be performed by one who has not considered evidence or argument. It is not an impersonal
obligation. 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 rigour to the proceedings of the ordinary courts, and in the entire process of
adjudication a judge must act personally, except insofar as he is expressly absolved from his
duty by statute. Only in very exceptional circumstances May judicial functions are subdelegated in the absence of express authorisation.
Lord Denning13 rightly states: while an administrative function can often be
delegated, a judicial function rarely can be; no judicial tribunal can delegate its functions
unless it is enabled to do expressly or by necessary implication.

9 Halsburys laws of England (4th Edition, volume. 1) at p. 34; de smith, Judicial Review of
Administrative Action (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.
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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 delegated unless the law expressly or by clear implication permits it.15
In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C. 16 under the relevant
Act and the Rules the Minister was empowered to hear the parties and to pass the final order,
but he delegated his function of hearing to his Secretary, who heard the parties and put up a
note before the Minister for final decision and the order was passed by the Minister. Quashing
the orders, passed by the Minister, Subba Rao, J. Held that it was not a judicial hearing. If
one person 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
all judicial and quasi-judicial authorities to take the entire evidence in all cases, hear the
parties and their representatives or advocates, and give decisions. In these circumstances
courts have allowed some relaxation and held that it is permissible for judicial or quasijudicial bodies to delegate certain functions, e.g. holding of inquiries, taking of evidence,
hearing of parties and to appoint assistants for the said purposes, provided always that after
receiving evidence in the aforesaid manner they give an opportunity to the parties to clarify
their stand before a decision is finally arrived at by them.
It is submitted that the following observations of Mahajan, in the leading case of
Delhi Laws Act, 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,
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. 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.18

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.
17 AIR 1951 SC 332: 1951 SCR 747.
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(c) Sub-delegation of administrative power:

In certain circumstances and on certain conditions, administrative power can be subdelegated.
1. Exclusion of judicial review:
The rule of law has always recognised power of judiciary to review legislative and quasilegislative 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, byelaws, 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:
(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

18 Murray v. Hoboken, (1856) HOW 272, 284: we do not consider Congress can withdraw
from judicial cognizance any matter which from its nature, is the subject of a suit at the
common law, or in equity, or in admiralty.
19 ILR 3 Cal 64: 1 CLR 161.
20 R v. Burah, (1878) 3 SC 889: 51A 178: 4 Cal 172.
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(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.21

D. CONTROL OF SUB-DELEGATED:
All the fundamental principles which apply to the functioning of an administrative
authority exercising its powers, whether legislative, judicial or quasi-judicial would apply to
control the sub-delegated legislation as well. One basic principle is that a sub-delegate cannot
act beyond the scope of power sub-delegated to him. If the sub-delegation is conditional, then
it is necessary that sub-delegate must observe the conditions otherwise his action will be ultra
vires.

E. CRITICAL STUDY OF SUB-DELEGATED POWER

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 the field 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 a
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
21 For detailed discussion, as to right of appeal, Thakker, Code of Civil Procedure (2002,
Vol.II)
14

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.
CONCLUSION:
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 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.

F. BIBLIOGRAPHY:
Books:

Dr. J.J.R. Upadhyaya, Administrative law, 7th Edition (Central Law Agency)
2010.
M.P. Jain & S.N. Jain, Principles of Administrative law, 6th edition 2011
S.P. Sathe, Admistrative Law, 7th edition (LexisNexis Butterworth Wadhwa
Nagpur), 2012.
C.K. Takwani , Lectures on Administrative Law

Websites:
www.wikipedia.com

www.manupatra.com
www.westlaw.com
www.sscrn.com
www.ssc.com
www.legalservices.com
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www.articlesbase.com
www.legalquest.in/index.php/students/.../415-sub-delegation.html

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