Administrative Law

LLM I Semester

Sub-delegation
United States

As far as USA is concern, its constitution clearly states that, “the executive power
shall be vested in a President of the United States of America.”[15] Moreover the
President of the USA has been bound to ensure that he shall take care that laws be
faithfully executed [16] Thus, a pellucid approach can be well observed under the
Constitution of the USA pertaining to the form of executive functioning. Thus, it will
be a futile hardship to trace the roots of the delegated legislation under the
Constitution of USA.

In 1892, the Supreme Court declared in Field v. Clark [17], “That Congress cannot
delegate legislative power to the President is a principle universally recognized as
vital to the integrity and maintenance.” In 1989, nearly a century after it the Supreme
Court of USA in Mistretta v. United States [18] had upheld the urge and gross
necessity of the grant of legislative power to the executive agencies to implement the
same in most appropriate and efficient way based on the guidelines for federal
criminal offences. This precedent paved way towards more pragmatic and liberal
judicial interpretations to welcome the radical changes in the field of administrative
law such as delegated legislations.

United Kingdom

Being the essence of parliamentary democracy U.K. bears its own kind of set up for
the delegated legislation. Having been based on the principle of ‘parliamentary
sovereignty’, U.K. legal system bears paramount authority to the parliament. Thus
every minute intricacy in this regard can be seen to be linked with the Parliament. In
the earliest years of British Parliament, broad power to legislate by proclamation
remained with the crown. In the 1539 Royal Power to issue proclamation for good
order and governance was recognised by Henry VIII’s Statute of Proclamations and
such proclamations were enforced as if made by Act of parliament. However the
aforesaid statute was replaced in 1547. Thereafter the Acts of parliament delegated
power to the crown to make laws [19].

In Britain executive has no inherent legislative power. Statutory authority is

indispensible. The delegated legislation does not have any immunity from challenge
in courts which Acts of parliament enjoy as there is a fundamental difference between
a sovereign and subordinate law making power. House of Lords in Hotel and
Catering Industry Training Board v. Automobile Ply Ltd declared invalid an order of
minister of labour which would have imposed Industrial Training Act, 1964.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
The validity of statutory instrument may be challenged on two main grounds i.e. the
content and substance of the instrument is ultra vires the parent act and that the
correct procedure has to been followed in making the instrument [21] In 1998 the
parliament enacted Human Rights Act 1998. Sec 3(1) of the Human Rights Act 1998
casts a duty to interpret the legislation consistently with the European convention
rights where it is possible to do so. Thus, the requirement of a valid subordinate law is
that it should be in conformity with European Convention Law. In Bourgoinsa v.
Ministry of Agriculture [22] a ministerial order was held to be unlawful on account of
conflict with European Convention treaty.

Precedents on Sub-Delegation in India

The necessity of sub-delegation is ought to be supported, inter alia, on the grounds-

Power of delegation necessarily carries with it power of further delegation; and 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. Without the
strict adherence to this principle no sub-delegation can be possible.

The Lok Sabha Committee on Subordinate Legislation took the view that, as the
ultimate authority of the sub-order has to be traced to the Act, it should have been
laid. The Committee, however, subsequently stated the necessity to "lay" sub-
delegated legislation made under the coal Mines (Conservation and Safety) Rules,
1954, and statutory orders under the Defence of India Rules, 1971 [23]. The topic can
be studied under three sub-heads: Sub-delegation of legislative power, Sub-delegation
of judicial power and Sub-delegation of administrative power. The maxim 'delegatus
non potest delgare' (a delegate cannot further delegate) applies to delegated
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.

In, Central Talkies Ltd. v. Dwarka Prasad, the U.P.(Temporary) Control of Rent and
Eviction Act, 1947 [24] provided that no suit shall be field 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.
Thus, express mention of the delegated powers in the orders plays a key role.

In landmark case of Ajaib Singh v. Gurbachan Singh [25], under the relevant statute,
the Central Government was empowered to make rules for detention of any person by
an authority not below the rank of District Magistrate. Where the order of detention
was passed by an Additional District Magistrate, the action was held bad. Here, the
principle of delegated legislation was held subject to the strict interpretation of the
statute.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
Another illustration of such strict interpretation by the Apex Court is, the case of
District Collector Chittoor v. Chittor District Groundnut Traders Association [26],
Wherein, the Essential Commodities Act confers rule-making power on the Central
Government. The Central Government sub-delegated this power to the State
governments subject to the condition that before making any rules, the State
Government would obtain the prior concurrence of the Central Government. The
Supreme Court ruled in the instant case that any rule made by a State Government
without the concurrence of the Central Government would be ultra vires. The Hon’ble
Apex Court stated that, "A delegate is not entitled to exercise powers in excess or in
contravention of the delegated powers. If any order is issued or framed in excess of
the powers delegated to the authorities, such order would be illegal and void."

In Morgan (I) v. U.S [27] 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 a
impersonal obligation. It is akin to that of a judge. 'The one who decides must hear'.
Lord Denning rightly stated: "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 so expressly or by necessary implication" [28]. The same principle
is accepted in India as the basic principle [29].

In, Bombay Municipal Corporation v. Thondu, the words of Hidayatullah, J. have

become a guiding star to deal with the similar intricacies of the delegated legislation
and the judicial powers, as follows- "It goes without saying that judicial power can
not ordinarily be delegated unless the law expressly or by clear implication permits it"
[30].

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 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".

Conclusion

When talking of the nature of sub ordinate legislation or delegated legislation

‘Subordinateness’ not merely is suggestive of the level of the authority making it but
also of the nature of the legislation itself. Delegated legislation under such delegated
powers is ancillary and cannot, by its very nature, replace or modify the parent law
nor can it lay down details akin to substantive law. There are instances where pieces
of subordinate legislation which tended to replace or modify the provisions of the
basic law or attempted to lay down new law by them had been struck down as ultra
vires.

Delegated or subordinate legislation means rules of law made under the authority of
an Act of Parliament. Although law making is the function of legislature, it may, by a
Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
statute, delegate its power to other bodies or persons. The statute which delegates
such power is known as Enabling Act. By Enabling Act the legislature, lays down be
broad guidelines and detailed rules are enacted by the delegated authority. Delegated
legislation is permitted by the Indian Constitution. It exists in form of bye rules,
regulations, orders, bye laws etc.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]