This Article is written by Anju Malik of Department of law, Bhagat Phool Singh Mahila Vishwavidyalya (Khanpur Kalan), an intern under legal vidhiya.
ABSTRACT
“When you delegate tasks, you create followers. When you delegate authority, you create leaders.” – Craig Groeschel.[1]
Although this is the idea under administrative law, delegated and sub-delegated are parts of the Constitution. Administrative law must be understood before we can understand delegated and sub-delegated legislation. Within the public administration, administrative law serves as the constitutional legal foundation. Under the premise of law, it establishes and grows a public administration system. In the skeleton of the Constitution, administrative law serves as blood. We examine two categories of legislation under administrative law: delegated and sub-delegated legislation. Administrative law frequently uses the notions of delegation and sub-delegation of powers to allocate decision-making authority within a government or organization. Before we proceed further let’s examine the meaning of delegation and sub – delegation in detail.
KEYWORDS
Delegation , Sub – delegation , Delegatus non potest delegare , Parent act , Excessive legislation , Conditional delegation, Unconditional delegation.
INTRODUCTION
Legislation that has been delegated is the result of authority being transferred from higher to lower levels of government. Legislation that is delegated by the parliament to the administrative authority is known as such. It may also refer to laws created by bodies other than the legislature. The delegated authority must function or behave in accordance with the constraints imposed by higher authority. Whereas, Sub-delegated legislation is defined as an exercise of the rule-making authority’s capacity to issue rules to other authorities when the rule-making authority has further delegated that power to them. “A delegator cannot further delegate,” according to the aphorism “Delegatus non potest delegare.” A delegator lacking an enabling act will not be able to further delegate its authority to other authorities, including rule-making authority. This law should specifically address any necessary ramifications. The procedure by which an individual or entity that has been given administrative authority by a higher authority subsequently transfers some or all of those powers to another individual or entity is known as sub-delegation in administrative law.
The Initial decision-maker, referred to as the delegating authority, transfers authority to a third person, referred to as the sub-delegate, who then uses the transferred powers on the delegating authority’s behalf. By dividing the effort, this delegation makes it possible for public affairs to be managed effectively and efficiently.
DELEGATUS NON-POTEST DELEGARE
There is no set rule of law established by the legal maxim “Delegatus Non-Potest Delegare.” It only lays down a statute’s construction guideline. Although it is generally forbidden, sub-delegation of legislative authority may be allowed in cases where the statute specifically grants it or where it is implied by necessary inference. The reason for this is that a sub-delegate is not permitted to operate in excess of the authority granted to him, according to a well-established principle. When one is given authority, they are not permitted to give it to others again. As a result, unless the initial delegation specifically permitted it, a person who has been given authority or decision-making power by a higher authority cannot in turn delegate again to another. A person who has been given authority or decision-making ability by a higher authority cannot, in turn, transfer that authority to another person unless the original delegation specifically permitted it. This is known as the maxim in administrative and constitutional law. Put simply, a delegate is not permitted to delegate again. The adage is not exclusive to principal-agent disputes; rather, it is most commonly utilized in such cases. The maxim generally speaks about delegation.
ILLUSTRATION
- When tasked with auditing a company’s accounts, an auditor cannot assign the work to another individual unless specifically authorized to do so. In the event that the auditor acts without specific authorization, they will have violated the law.
- An attorney who is granted legal authority through a power of attorney is not able to assign that authority on their own initiative without the grantor’s approval.
NATURE AND SCOPE OF SUB – DELEGATED LEGISLATION
Sub-delegation has a similar broad nature and scope to delegated law. When permitting or parent act directly or implicitly authorizes them to further delegate their powers, a rule-making authority may sub-delegate its rule-making ability to another authority. Delegatus non potest delegare is a maxim that limits the extent of sub-delegation. Legislative authority cannot be subdivided if the enabling or parent act does not specifically permit such a transfer.
In a leading case,“ Ganpati v. State of Ajmer[2] it was held that an enabling or parent act authorized the Head of the Commission tasked with establishing regulations to ensure adequate sanitation and conservation. The Chief Commissioner authorized District Magistrate to made rules to invent a new way of doing something his own system. The Supreme Court ruled that the District Magistrate’s rules were unconstitutional due to their sub-delegation without explicit authority. It can be valid if the parent act authorized to sub-delegation. The idea or philosophy of excessive legislation, which states that when the legislature or other rule-making body unnecessarily transfers its authority to another body, it will be deemed unconstitutional, is included in the sub-delegation category. By ensuring democratic accountability in the laws and granting the court the minimal authority to determine whether a delegation is beyond the authority granted by the enabling act, this principle accomplishes two goals. This principle satisfies two goals: it guarantees democratic accountability in the legislative process and it provides the court with minimal authority to determine whether a delegation is beyond the authority granted by the enabling statute.
OBJECTIVE AND SCOPE OF SUB – DELEGATED LEGISLATION
Taking into account the following elements supports the practice of sub-delegation, or additional delegation of authority:
- Power of delegation : It is stated that an authority’s inherent right to further delegation occurs when it transfers its jurisdiction to another individual or organization. Accordingly, the delegate is able to sub-assign the powers to a different individual or organizations.
- This point of view is founded on the idea that the delegate should have the freedom to allocate the workload and make sure the powers they have been granted are administered effectively.
- Supplementary to Legislation Delegated : It is believed that sub-delegation is a supplementary or subsidiary method to delegated legislation. Delegated legislation is defined as laws or regulations issued by an authority other than the legislature, typically the executive branch, using the authority that the legislature has granted them.
- Sub-delegation gives the executive the ability to assign particular responsibilities or the capacity to make decisions to officials or agencies at a lower level inside its own organizational structure. Sub-delegation permits the executive to assign responsibilities to people with the right knowledge and authority, which helps to guarantee the effective operation of the delegated law.
- Preserving Legislative Authority : The power that the legislature has given the executive could be compromised if someone objects to sub-delegation. To facilitate efficient administration and law implementation, the legislature assigns specific powers to the executive.
- Sub-delegation may be restricted if it is forbidden, which would make it more difficult for the executive to assign duties and responsibilities and prevent the delegated law from working effectively. It is therefore believed that allowing sub-delegation is necessary to preserve the intended authority and functionality of the functions that have been assigned.
TYPES/FORMS OF SUB – DELEGATED LEGISLATION
Three different kinds of sub-delegation exist. These represent the Indian Legal System’s more inclusive classification of the sub-delegated laws.
[1] FULL/ PARTIAL SUB – DELEGATED LEGISLATION
When the agent or other authority is granted all the powers, the delegation is considered full. For example, the authority to change, amend, or repeal any law by the appropriate body. When someone needs specific instructions or direction on an important matter from the delegated authority, that delegation is deemed incomplete. For example, see Section 5 of the 1955 Essential Commodities Act.
[2] CONDITIONAL/ UNCONDITIONAL SUB – DELEGATED LEGISLATION
When an authority is delegated, it is conditional upon the superior authority confirming and revising its actions, or it contains additional requirements. If authority is delegated unconditionally, it has the same power as authority that is superior. Section 3 of the Essential Commodities Act, 1955 established the sugar control, which was made by the Central government (superior authority). The Textile Commissioner (delegated authority) was then given certain functions and powers under the order, and under clause 10, the Commissioner’s authority may designate any officer to act on his behalf (sub-delegated authority).
[3] SKELETON LEGISLATION
Skeletal law refers to a legal framework in which higher authority creates a framework without establishing 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 permitted to go beyond.
NEED OF DELEGATED LEGISLATION
The following criteria are used to try and justify the need for sub delegation:
- Delegation authority inherently confers the ability to delegate greater authority, hence the delegate has the authority to delegate further.
- Legislation that is delegated has a subsidiary process called sub delegation, and opposition to it runs the risk of undermining the power that the legislature grants the executive.
Illustration of sub delegation:
- Setting aside all the legalese surrounding administrative law, sub delegation of power of authority is a concept we encounter on a daily basis. For the layperson, subordination of authority began when he or she asked their younger sibling to carry out the task that their parents had assigned them. Because this example was so relevant to everyday life, it provided a clear comprehension of the concept in question.
- Another example would be if, after being hired by the business to audit the company’s finances, the auditor decided to sub delegate the work to an intern who works under him for personal reasons. This is referred to as subordination.
The second scenario, however, is not possible because of the principle “Delegatus Non-Potest Delegare,” which prohibits the subordination of authority and powers absent express statutory authority.
Three case laws primarily address the relevant subject of subdelegation.
The first case is “ A.k. roy & Anr. V. State of Punjab ”[3] .This was the first case in India to establish the general rule that powers or authority that have been given cannot be transferred again. The Prevention of Food Adulteration Act of 1954’s validity in this instance pertains to sub-delegation of power. It was noted that Section 20 of the Prevention of Food Adulteration Act, 1954, prohibits any additional power delegation by an individual who has been granted authorization by the Central or State Government. It has been decided that in the aforementioned case, the Food Inspector’s prosecution under the alleged delegation of authority was unlawful.
The term “sub delegation” refers to the transfer of authority that was initially granted by the government’s legislative branch in the second case, “Ultra Tech Cement Limited v. The Union of India & Ors.”[4] The prevailing concept, however, is that the person to whom a power has been delegated should exercise it and no one else’s. However, there is a catch: the authority may only be further assigned provided the parent act or statute controlling it permits subordination. The phrase “delegatus non-potest delegare” was born out of this logic, but only with the same restriction that powers granted by legislation or the law regarding sub delegation.
“Allingham v. Minister of Agriculture”[5], the third case, involves a committee that the Minister of Agriculture authorized to provide guidelines for the management, cultivation, or use of land for agricultural purposes, as the committee deems fit. The Minister has delegated this power to the committee; however, the committee itself transferred this power to one of its subordinate officers, who then issued an order that complied with the committee’s directives. The officer’s order, however, was contested in court. The officer’s order and the delegated powers, with which the officer obeyed, were subsequently declared invalid since the committee was not authorized to assign them.
In “The State v. Kunja Behari Chandra And Ors”[6]., the Patna High Court upheld the aforementioned dictum, holding that “The legislature cannot surrender or abdicate such power and any attempt to do so will be unconstitutional and void because the legislative power of the government is vested exclusively in the legislature.” Delegatus non potest delegare, the well-known dictum that states that the legislature cannot transfer its legislative authority to another body, is another.
The case of “Central Talkies v. Dwarka Prasad[7] ”dealt with the U.P. Control of Rent and Eviction Act, 1947. The act stipulated that a tenant cannot be evicted without the consent of a District Magistrate or an Officer designated by them to carry out their duties under the Act. The powers were assigned to the Additional Magistrate, who issued an order giving authorization.
JUDICIAL PRECEDENTS IN INDIA OF SUB-DELEGATION.
The case of “Ajaib Singh v. Gurbachan Singh [8]”established a precedent wherein the Central Government was granted the authority to establish regulations for the detention of an individual by any other authority. However, the order of detention issued by the Additional District Magistrate, who held a lower rank than the District Magistrate, was deemed invalid due to a statute. The statute was strictly interpreted in favor of the delegated legislation.
“Chittoor District Collector v. Chittoor District Groundnut Traders Association”[9], wherein the Central Government was granted the authority to make rules under the Essential Commodities Act, 1955, and the State Government was granted subordination of that authority, subject to the Central Government’s approval. According to the Supreme Court, state governments might make laws without the central government’s approval. Therefore, the guidelines would be extremely strict.
“ Act of Delhi Laws, 1912 VC[10]”
Under delegated laws, it was a historic ruling and case. This particular statute, which was deemed intra vires, grants the Central Government the authority to expand the boundaries of Delhi and Ajmer-Mawar with certain limitations and modifications. The constitutionality or validity of this lawsuit was also discussed, including the government’s ability to abolish existing laws and extend to part C any laws that are in effect in part A. Because the delegated powers act excessively, it was ruled to be supra vires under Article 143 of the Constitution.
CONCLUSION
The common law under administrative and constitutional law is delegation and sub-delegation. These two laws now play a significant role because of legal developments and technicalities, which relieve the higher authority or legislation of some of its workload and provide for time savings. However, there are drawbacks to these laws as well. Superior or delegated authority may be abused by any party, or by both. As we have observed in numerous instances, delegated authority might choose to change, or repeal legislation, and occasionally, superior authority can abuse the authority that has been granted to him. This brings us to the final point: the Indian judicial system needs excellent administration. Subordination and authority delegation are broad subjects that necessitate a great deal of profound understanding, as we have shown. These ideas cannot be consistent in every situation because they are only contextual. They both offer a lot of ifs, buts, and exceptions, but because of the ongoing nature of the work and technical language, this is a topic that is always changing and expanding.
[1] https://aristosourcing.com/best-quotes-about-delegation/
[2] 1955 AIR 188, 1955 SCR(1) 1065
[3] 1986 SCR (3) 961
[4] Civil Writ Petition No. 9480/2019
[5] 1948 (1) All. E.R. 780
[6] 1954 CriLJ 1187
[7] 1961 SCR (3) 495
[8] AIR 1965 SC 1619
[9] AIR 1989 SCC 58
[10] 1951 air 332
