SUB DELEGATION IN ADMINISTRATIVE LAW
In the recent times, administration, administrative functions and administrative authorities have come a long way. There has been severe growth in the working of administrative authorities, resulting in excessive work load lying upon themselves and gives rise to pendency of the work on the various organs of the government. This problem of high pendency and excessive workload of the work came up with the solution of ‘delegated legislation’.
Delegated legislation means the law that is made by the executive body under the delegated/subordinated powers of the legislation body. It is generally in the form of rules, regulations, bye laws, orders etc. it is also known as subordinate legislation. It has been widely said that delegated legislation are used to make in addition of the existing legislations, it should not abolish or contravene the existing law and order, which basically means that delegated legislation should be in conscience with the pre-existing legislations. Pressure upon Parliament, technicality and confidentiality of the subjects, speed of working etc. are the essential elements responsible for the growth of delegated legislation. But the concept of delegated legislations is indispensably connected to the legal maxim ‘Delegatus Non-Potest Delegare’, which means that the powers that have been delegated once can not be delegated further.
To simplify the elongated version, the term sub delegated legislation means delegating the delegated powers further or we can say when a statute confers legislative powers to an administrative authority and they further delegate to some other authority or agency then this process is known as sub delegation of legislative powers. But this maxim is not a rule of law, it is just a constructive rule for the statutes. But talking in the general sense, in the specified cases, sub delegation is permitted, if it is expressly stated under statutes or if it can be inferred from the statutes or circumstances. The one who delegates the power is parent act or authority and to whom the power is delegated is known as children act or authority. If the parent authority further delegates its legislative powers but keeps a check over the substantial nature of functions of children authority, then it can not be said as delegated or sub-delegated legislation.
The need of sub delegation is sought to be supported on the basis of the following factors:-
- Power of delegation necessarily carries with it the power of further delegation and hence, the delegate has power to further delegate.
- Sub delegation is ancillary to delegated legislation and objection to such process is likely to subvert the authority which the legislature delegates to the executive.
Illustrations of sub delegation:-
- Keeping all the technicalities of the administrative law aside, sub delegation of power of authority is a term that we observe in our day to day life daily. For a layman, sub delegation of power came in existence as soon as he/she asked their younger sibling to do the work that has been given to them by their parents. This example was quite related to the daily lives, so that it gives a pristine understanding of the said term.
- Now the other illustration can be, an auditor is appointed by the company to audit the accounts of the company, but due to his personal reasons, he appointed another person who is a intern under him, for the work to be done, this is also known as sub delegation.
But due to the existence of the maxim “Delegatus Non-Potest Delegare” the second illustration can not be true as this maxim stops the sub delegation of authority and powers, unless said by statutes.
There are three case laws that majorly talk about the concerned topic of sub delegation.
The first case is A.K. Roy and Anr. vs. State Of Punjab and Ors1
The second case is of Ultra Tech Cement Limited vs. The Union Of India & Ors.2, in this case it has been said that sub delegation means the delegation of the same power that has been originally delegated by the legislative organ of the government. But the existing principle is that the powers that have been delegated should be exercised by the person to whom it is delegated and none else, but there exist a condition that if the parent act or statute governing the said delegated power says for sub delegation then it can be further delegated. This reasoning gave birth to the maxim “delegatus non-potest delegare”, but that too with the same condition of express or implied powers given by statutes or law about sub delegation.
The third case is Allingham vs. Minister of Agriculture3
As we have seen sub delegation and delegation of authority are vast topics and require a lot of significant knowledge. Both the concepts are purely circumstantial and can not be uniform for all the cases. They both comes up with a lot of ifs and buts and exceptions, yet it is an evolving topic which is growing at a high pace due to pendency of the work and technical jargons.
- 1986 SCR (3) 961
- Civil Writ Petition No. 9480/2019
- 1948 (1) All. E.R. 780
Author: Riddhi Agrawal,
Amity University, Gwalior and 2nd year