This article is written by Saloni of 7th Semester of BBALL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of laws Khanpur Kalan, an intern under Legal Vidhiya
ABSTRACT
The workloads of administrative authorities have grown significantly, which has left them with an overwhelming amount of work to do and increased workloads for the government’s many agencies. “Delegated legislation” was developed as a remedy to the high pendency and excessive workload of the work. Legislation made by the executive branch under the legislative branch’s delegated or subordinated powers is referred to as delegated legislation. However, the idea of delegated legislation is inseparably connected to the legal principle “Delegatus Non-Potest Delegare,” which states that once authority is granted, it cannot be further granted.
Keywords: delegated legislation, subordinated legislation, delegates not potest delegare, sub delegation
INTRODUCTION
Sub delegated legislation refers to the process of further delegating the powers that have been assigned by a statute to an administrative authority, which subsequently transfers those powers to another agency or authority. This is also known as sub delegation of legislative powers. If it is clearly mentioned in statutes or may be deduced from the statutes or circumstances, sub delegation is allowed in the designated cases. As long as the parent authority retains control over the fundamental nature of the functions of the children authority, it is impossible to establish that legislation has been sub-delegated or further delegated.
MEANING OF SUB-DELEGATION
Sub-delegation, as used in administrative law, is the procedure by which an individual or organization that has been given administrative responsibility by a higher authority subsequently assigns some or that entire jurisdiction to another individual or organization. According to the maxim “Deleatus non potest delegare,” “A delegator cannot further delegate.” A delegator lacking an enabling act in place will not be able to further delegate its authority to other authorities, including rule-making authority. In this scenario, the initial decision-maker, referred to as the delegating authority, transfers authority to a third person, referred to as the sub-delegate, who subsequently uses the transferred powers on the delegating authority’s behalf.
OBJECTIVES OF SUB-DELEGATION
The following elements should be taken into consideration while implementing sub-delegation or additional delegation of authority:
- Power of delegation: It is said that when an authority assigns its jurisdiction to another person or group, it possesses an inherent right to further delegation. As a result, the delegate has the option to sub-assign the authority to an alternative person or group.
- Supplementary to delegated legislation: Sub-delegation is regarded as a supplementary or supporting procedure to legislation that is delegated. Sub-delegation enables the executive to assign particular responsibilities or decision-making power to subordinate authorities or agencies operating under its own administrative framework. The effective operation of the delegated laws can be guaranteed by permitting sub-delegation, which gives the executive the ability to assign responsibilities to people with the necessary knowledge and authority.
- Maintaining Legislative Power: To facilitate the efficient administration and application of laws, the legislature assigns specific authorities to the executive branch; If sub-delegation is prohibited, it could be limited, which would make it harder for the executive to allocate tasks and obligations and hinder the efficient operation of the delegated statute. Therefore, it is thought that in order to maintain the desired functioning and authority of the assigned functions, sub-delegation must be permitted.
NEED FOR SUB DELEGATION
The following criteria are used to try and justify the need for subordination:
- The delegate has the authority to assign more authority since the ability of delegation inherently includes the power of additional delegation.
- Subdivision is a process that goes hand in hand with delegated legislation, and opposition to it could undermine the authority that the legislature grants the executive
FORMS OF SUB DELEGATED LEGISLATION
Sub-delegation comes in three different forms. These show how the sub-delegated laws are categorized more broadly in the Indian Legal System.
Full or partial: When all of the authority is granted to the agent or another authority, the delegation is considered full. For example, the permission of competent authority to change, amends, or repeals any law. A delegation is deemed partial if the recipient needs to obtain instructions or direction from the delegated authority regarding important matters. For instance, the Essential Commodities Act of 1955’s Section 5.
Conditional or unconditional: Delegation is condition when the action of a delegated authority is subject to revise and confirm by the superior authority or it includes some conditions. When authority is delegated unconditionally, it gains the same power as higher authority. As per the Essential Commodities Act of 1955, Section 3, After the Central government implemented the sugar restriction, the Textile Commissioner was given certain authority and functions under the order. Additionally, under clause 10, the Textile Commissioner has the authority to designate any person to act on his behalf.
Skeleton legislation: Skeletal legislation is created by superior authority who creates the framework of a statute but does not establish any policies or principles. Delegated authority then fills in this framework by establishing policies or principles with the aid of guidelines, which they are not allowed to stray from.
MAXIM- DELEGATES NON POTEST DELEGARE
The concept that sub-delegation of legislative power is prohibited unless specifically granted by statute or implied by necessary inference is emphasized by the maxim “Delegatus non-potest delegare.” The maxim is based on the well-established idea that the person to whom authority is granted cannot behave in ways that exceed the authority granted to them. Sub-delegation is constrained by the same excessive delegation theory as delegation itself, according to the belief that “a delegate cannot further delegate; one who is delegated cannot further re-delegate.”Sub-delegation of legislative authority is generally forbidden, but it may be allowed in some situations, such as where the statute expressly grants it or when it can be requiredly implied. The reason for this is that a sub-delegate is bound by the recognized principle that he cannot act in excess of the authority granted to him.
Express powers
When the statute expressly permits the administrative agency to sub delegate its authority, there is no problem with the validity of the sub-delegation since it falls within the purview of the statute.
Implied powers
It remains unclear what would happen in the event that the Act contained no clear or precise provisions for the sub-delegation of authority.
SCOPE OF DELEGATION
A few of the factors which promoted the adoption of the concept of delegated legislation are as follows:
- Wide general powers
- Power to vary acts of parliament
- Technicality
- Emergency powers
- The distribution of the massive amount of work produced by state legislatures is one of the primary causes. “The concept of state has evolved over time and had enabled the concept of welfare state,” stated MP Jain. In order to implement the welfare of the people, the state must unavoidably carry out all of its tasks, and one way to do this is through passing laws. It follows that giving authority to others will undoubtedly lighten the burden of rules and regulations.
- A further consideration is time consumption, with the administration handling specific rulemaking and the legislatures handling the definition of fundamental policies and concepts. The legislature finds it challenging to work on the specifics, and it is difficult for both the federal government and local administration to operate efficiently and on schedule.
- The delegated legislation allows for flexibility in the law by allowing adjustments based on requirements. Adequate legislative authority is crucial for the administration to handle significant local concerns like labor disputes, strikes, and other related matters.
TO WHAT EXTENT ARE POWERS SUB-DELEGATED OR DELEGATED?
Although power is restricted rather than unrestricted, it can be delegated or sub-delegated with prior approval from the parent authority. The concept of excessive delegation applies to sub-delegation as well. Put simply, the legislature has the authority to formulate policies, as granted by the Indian Constitution. The legislature may assign limited authority to draft modest changes to existing policies, but it cannot give another body—a body that is not the legislature—full authority to formulate policy. According to the theory of excessive legislation, that would be an excessively broad delegation and so invalid.
In Mahe Beach Trading Co. v. Union Territory of Pondicherry, 1996,[1] it was decided that “The delegated authority must only implement stated policy; however, if there is an excessive delegation, which the court will invalidate, there is an abdication of legislative power by transferring the policy formulation role to the delegate.”
ISSUES SUPPORT SUB-DELEGATION
Sub delegation brings up a number of issues. Firstly, is it essential for the delegate to set clear guidelines for the sub-delegate to adhere to? The issue has come up a few times in Indian court proceedings. Sub delegation is governed by the excessive delegation theory, just like delegation.
The Supreme Court exercised its authority under clause 8 of the sugarcane control order issued under section 3 of the essential commodities act, 1955, in the case of Laxmi Khandsari v. State of Uttar Pradesh.[2] The central government was given the authority to issue directives to different parties involved in the production of khandsari sugarcane by Clause 8 of the sugar cane order. The argument was rejected by the supreme court, which stated that the sugarcane control order was made in accordance with section 3 of the parent act, which clearly laid down sufficient guidelines to prevent any misuse of the power granted to the authorities under clause 8 and that the power should not be deemed arbitrary because the impugned notification derived its source from that section. The notification under the control order must be read in the context of the main act.
INDIAN JUDICIAL PRECEDENT RELATED TO DELEGATION AND SUB DELEGATION
A.K. Roy and Anr. vs. State of Punjab and Ors[3]. is the first case. In India when the general rule that conferred powers or authority cannot be revoked was established. This case is valid for sub-delegation of power under the Prevention of Food Adulteration Act of 1954. It was pointed out that Section 20 of the Prevention of Food Adulteration Act, 1954 forbids the delegation of any further authority by a person who has received permission from the federal or state governments. It has been determined that the prosecution of the Food Inspector in the previously described instance under the purported delegation of authority was illegal.
The second case is of Ultra Tech Cement Limited vs. The Union of India & Ors,[4] It has been stated that sub delegation in this context refers to the transfer of the same authority that the government’s legislative branch initially granted. The general consensus, on the other hand, is that the individual to whom authority has been assigned should use that authority alone. There is a catch, though: further delegation of authority is only permitted if the parent act or statute that governs it allows it. This logic gave rise to the dictum “delegatus non-potest delegare,” but only within the same restrictions about the stated or implicit authority for subordination granted by statutes or the law.
The third case is Allingham vs. Minister of Agriculture,[5] In this instance, the Minister of Agriculture gave a committee permission to issue any directives the committee deems necessary for the administration, cultivation, or use of land for agricultural reasons. This is the authority that the Minister granted to the committee; nevertheless, the committee also assigned that authority to one of its subordinate officers, who then issued the order notice that complied with the committee’s directives. However, the officer’s order was contested in court. Subsequently, it was determined that the committee lacked the authority to assign powers, thereby nullifying the directive issued by the officer and the assigned powers, with which the officer complied.
In the case of District Collector Chittoor v. Chittoor District Groundnut Traders Association,[6] the Central Government was granted the authority to make rules under the Essential Commodities Act, 1955, and it sub-delegated this authority to the State Government, subject to the State Government’s obtaining the Central Government’s consent. The Supreme Court ruled that State Governments might make rules without Central Government approval. Thus, ultra vires would be the rules.
In the land mark case of in Re Delhi laws act,[7] the act grants the Central Government the authority to expand, subject to certain modifications and limitations, the areas of Delhi and Ajmer-Mawar; this was determined to be intra vires. It was also discussed whether or not the government may repeal existing laws and extend to part C any laws that were in effect in part A. According to Article 143 of the Constitution, it was deemed extra vires since the assigned authorities act in an excessive manner.
CONCLUSION
Under constitutional and administrative law, delegation and sub-delegation constitute common legislation. Today, because of legal developments and technicalities, these two pieces of legislation are crucial since they reduce the workload and save time for higher authority or legislation. However, these laws also have unfavorable effects since higher or delegated authority may be abused by either party. It has frequently been observed that those with delegated authority revise, repeal, or change laws on their own will, or that superior authority will occasionally abuse their assigned authority.
REFERENCES
https://lawctopus.com/clatalogue/clat-pg/delegation-and-sub-delegation-under-administrative-law/
https://strictlylegal.in/interpretation-maxim-delegatus-non-potest-delegare/#google_vignette
https://www.lawcolumn.in/sub-delegation-in-administrative
law/https://blog.ipleaders.in/delegatus-non-potest-delegare/
https://www.ijlmh.com/wp-content/uploads/Excessive-Delegation.pdf
[1] (Mahe Beach Trading Co. & Etc vs Union Territory Of Pondicherry , 1996)
[2] (Laxmi Khandsari Etc. Etc vs State Of U.P. & Ors, 1981)
[3] (A.K. Roy & Anr vs State Of Punjab & Ors, 1986)
[4] (Ultratech Cement Limited vs The Union Of India And Ors , 2021)
[5] (Allingham and Another v Minister of Agriculture and Fisheries, [1948])
[6] (District Collector Chittoor & Ors vs Chittoor District Groundnut, 1989)
[7] (In Re The Delhi Laws Act, 1912,The … vs The Part C States (Laws) Act,, 1951)
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