i

Role of Sub delegation in Administration: A critical study

(A project report)

Submitted to:
Dr. Kaumudhi Challa
Faculty, Administrative Law

Submitted by:
Archit Srivastav
Sem VI, Sec:A, Roll no: 30
B.A. LLB (HONS.)

Date of Submission: 18/03/2019

Hidayatullah National Law University,

Naya Raipur, Chhattisgarh
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DECLARATION

I, Archit Srivastav, hereby declare that, the project work entitled, ‘Role of Sub delegation in
Administration: A critical study’ submitted to H.N.L.U. Naya Raipur, is record of an original
work done by me under the guidance of, Dr. Kaumudhi Challa, H.N.L.U., Naya Raipur.

Name: Archit Srivastav

B.A. LLB (Hons.)
Semester: VI
Section: A
Roll No: 30
Date: 18/03/2019
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CERTIFICATE

This is to certify that the content of this project entitled, “Role of Sub delegation in
Administration: A critical study” is the bona fide work of him submitted to Hidayatullah
National Law University, Raipur.
The original research work was carried out by him under my supervision in the academic
year 2019. On the basis of declaration made by him, I recommend this research project for
evaluation.
Certified by-
Dr. Kaumudhi Challa,
Faculty of Administrative law
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ACKNOWLEDGEMENTS

I, Archit Srivastav, would like to humbly present this project to Dr. Kaumudhi Challa. I
would first of all like to express my most sincere gratitude to Dr. Kaumudhi Challa for her
encouragement and guidance regarding several aspects of this project. I am thankful for being
given the opportunity of doing a project on ‘Role of Sub delegation in Administration: A
critical study’. I am thankful to the library staff as well as the IT lab staff for all the
convenience they have provided me with, which have played a major role in the completion
of this paper.
I would like to thank God for keeping me in the good health and senses to complete this
project.
Last but definitely not the least, I am thankful to my seniors for all their support, tips and
valuable advice whenever needed. I present this project with a humble heart.
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CONTENTS
DECLARATION .................................................................................................. ii
CERTIFICATE ..................................................................................................... iii
ACKNOWLEDGEMENTS .................................................................................. iv
CHAPTER I – INTRODUCTION & RESEARCH METHODOLOGY ............. 1
1.1 Introduction…………………………………………………………………..1
1.2 Research Methodology ............................................... ....................................2
1.2.1 Title .............................................................................................................. 2
1.2.2 Research Problem ......................................................................................... 2
1.2.3 Rationale ....................................................................................................... 2
1.2.4 Objectives ......................................................................................................2
1.2.5 Review of Literature .................................................................................... .2
1.2.6 Concepts of the study ............................................................................... .....2
1.2.7 Hypothesis................................................................................................. ... .2
1.2.8 Research Design ............................................................................................ 3
1.2.9 Sources of Data ...............................................................................................3
1.2.10 Chapterisation ............................................................................................... 3
1.2.11 Time Limit .....................................................................................................3
1.2.12 Contribution of the Study ....................................................................... ...... 3
1.2.13 Limitation of study ........................................................................................ 3
CHAPTER II – Concept of Sub delegation ............................................................. 4
CHAPTER III–Nature and Scope of Sub delegation……….................................... 5
CHAPTER IV- Sub delegation of Powers………………………………………….6
CHAPTER V- Precedents on Sub delegation in India………………………… …8
CONCLUSION AND SUGGESTIONS .................................................................. 10
BIBLIOGRAPHY ................................................................................................... .11
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CHAPTER I – INTRODUCTION & RESEARCH METHODOLOGY

1.1 Introduction

The term ‘delegate’ is derived from Latin term delegare which means to pass power, to give
responsibility or authority to another person or body.

Sub Delegation – 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.

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.
Implied Power: Griffith rightly states, “if the statute is so widely phrased that two or more
tiers of sub-delegation 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.”

1.2 Research Methodology

1.2.1 Title
The title of this project paper is ‘Role of Sub delegation in Administration: A critical study’.
1.2.2 Research Problem
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The paper is just telling that how sub delegation play its role in administration. Why there is a
need for delegation and sub delegation in administration. How it works and helps in the
administration.
1.2.3 Rationale
This study is important because it involves an important question of sub delegation of
powers. There are various kinds of powers given through sub delegation to administration. It
is necessary for the administrative authorities to have some discretionary powers so that they
can use it in time of urgency to deal with critical situations.
1.2.4 Objectives
The objectives of the research project are
● To study the concept of sub delegation.
● To study about the various cases on sub delegation which sets precedents.
● To study the sub delegation of powers.
1.2.5 Review of Literature
Review of literature is the documentation of a comprehensive review of the published and
unpublished work from secondary sources of data in the areas of specific interest to the
researcher. It is an extensive survey of all available past studies relevant to the field of
investigation. It gives us the knowledge about what others have found out in the related field
of study and how they have done so.
Delegated Legislation, Carr Cecil T. , Cambridge University Press
Originally published in 1921, this book presents the content of three lectures delivered during
the April of that year in Cambridge. Each lecture is divided over two chapters. The text
provides an account of delegated legislation and its replacement of prerogative legislation.
The benefits of delegation are discussed, alongside the ways in which liberties, if imperilled,
can be protected by safeguards. Appendices are also included. This book will be of value to
anyone with an interest in legal history and British legislative practice.
1.2.6 Concepts of the study
For arriving at a proper research, firstly we have understood the concept of sub delegation.
Then there is a need to study the requirement of sub delegation in administration. And after
that there are various courts cases which sets precedents for sub delegation.
1.2.7 Hypothesis
Sub delegation is one step ahead of delegation. As the administrative authority overburdened
with various task, it need someone to assist it in helping it and that is where sub delegation
comes into picture.
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1.2.8 Research Design

The nature of the study is Doctrinal. Which means that it is based upon the doctrines which
already exist in works by different authors or in legal systems. It is of the descriptive type. It
is a non-empirical study. No survey or collection of statistical data is done by the author.
1.2.9 Sources of Data
Secondary and electronic resources have been used to gather information and data about the
topic. Books and other reference articles as guided by faculty have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been widely
referred.
1.2.10 Chapterisation
Chapter I: Introduction and Research Methodology
Chapter II: Concept of Sub Delegation
Chapter III: Nature and Scope of Sub delegation
Chapter IV: Sub delegation of Powers
Chapter V: Precedents on Sub delegation
1.2.11 Time Limit
The introduction of the research took around 3 days to be grasped, finished and typed in the
document. It includes research, its understanding and typing in the document. Overall from
research to typing the document, it took around 6 days.
1.2.12 Contribution of the Study
The project report aims to list down the various aspects related to the sub delegation of
powers in administration.
1.2.13 Limitation of study
The project deals with “Role of Sub delegation in Administration: A critical study”. This
research is only concerned with sub delegation of powers and courts precedents.
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CHAPTER II. Concept of Sub Delegated / Subordinate Legislation

Sub-delegation means that the administrative authority to whom Parliament delegates

legislative power, may, in its turn, further delegate this power on either itself or on some
other authorities. The process of sub-delegation may go on to a few stages and thus the
process of rule-making may go on several steps removed from the original grant of power.
Legislation is either supreme or subordinate. The former is that which proceeds from the
supreme or sovereign power in the State, and which is therefore incapable of being repealed,
annulled or controlled by any other legislative authority. 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. The idea is to
supplement Acts of Supreme Legislative Body by prescribing detailed rules required for their
operation.
When a legislative body passes an Act, it has exercised its legislative function. The essentials
of such function are the determination of the legislative policy and its formulation as a rule of
conduct. These essentials are the characteristics of a Legislature itself. After a Law is made
by the Legislature, it is clear that every detail for working it out and for carrying the
enactment into operation and effect, may be done by the Legislature or may be left to another
subordinate agency or to some executive officer. While this is sometimes loosely described as
a 'delegation' of legislative power, in essence, it is different from delegation of legislative
power which means a determination of the legislative policy and formulation of the same as a
rule of conduct.
In a contemporary welfare State, governmental activity has encompassed almost every
ground of human venture, thus, requiring enactment of miscellaneous laws to control this
ever-widening activity. The Legislature does not have enough time to deliberate upon,
discuss and approve all the regulatory measures. Moreover, law-making has now become a
complicated and technical matter, and law has to flawless in technical details.1

1
Saad Abdulbaqi Sabti & YP Rama Subbaiah, Conceptual analysis of sub Delegation: An overview, Volume 3,
INTERNATIONAL JOURNAL OF LAW, Page No. 75-79 (2017), www.lawjournals.org
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CHAPTER III. Nature and Scope of sub-delegation

A rule-making authority can sub-delegate its legislative power only when the parent statute
authorises sub-delegation. Sub-delegation of power of delegated legislation is justified only
where the parent statute expressly or impliedly authorizes the delegate himself to further sub-
delegate that power to anyone else. The maxim, Delegatus non-potest delegare is a well-
known maxim which means that in the absence of any power a delegate cannot sub-delegate
its power to another person’s. Thus when an Act prescribes a particular body to exercise a
power, it must be exercised by that body and none else unless the Act by express words or
necessary implication permits such delegation. When a sub-delegation is made, it does not
divest the authority making sub-delegation of his statutory authority. A sub-delegation is not
permissible unless the said power is conferred expressly or by necessary implication and in
the absence of such an express authorisation, legislative power cannot be sub-delegated. A
leading case in this aspect is Ganapati v. State of Ajmer. Here the parent act empowered the
chief commissioner to make rules for the establishment of a proper system of conservancy
and sanitation. The chief commissioner made a rule which empowered the district magistrate
to devise his own system. The Supreme Court held that the rule made by the district
magistrate was invalid since it was a sub-delegation without an express authority. But if the
parent article authorizes to sub delegate, then it can be validated. If the parent Act permits sub
delegation to officers or authorities not bellow a particular rank, then the power can be
delegated only to those officers or authorities. Here it may be mentioned that the authority
cannot go beyond the power delegated.
Principle Underlying Sub-Delegation
The basic principle in this respect is that the sub-delegate should not be given uncanalised
and unguided legislative power. Like delegation, sub-delegation is also subject to the doctrine
of excessive delegation. 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.2

2
ibid
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CHAPTER IV. SUB DELEGATION OF POWERS

SUB DELEGATION OF LEGISLATIVE POWERS

When a statute confers some legislative powers on an executive authority and the further
delegates those powers to another subordinate authority of agency, it is called 'sub-
delegation.' Thus, a chain of delegation gets created in which the origin of the power flows
through the Parent Act.
Sub-delegation is the further delegation of power by a delegate to another person or agency.
The basic principle in this process is summarised by the maxim 'Delegatus Non Potest
Delegare.Such sub-delegation can’t be made without the duly authorisation by the parent
statute under which the delegation has been taken place. e.g.Even though no express power to
sub-delegate was granted by the Andhra Pradesh Markets Act, 1966, the High Court upheld
sub-delegation by implication from S. 57(3) thereof.3
However, as sub-delegation dilutes both accountability and oversight of the original
administrative authority, safeguards are necessary for their functioning. The sub-delegate
should not act beyond the scope of the power delegated over it. At the same time its
important that, the sub-delegation should not be vague and must be free from any
irregularities. One of the vital aspect about the sub-delegated legislation is, it must get
mandatorily published to be operative.4
Having considered various aspects of the legislative function of the administration, we will
now consider the non-legislative aspects.

3
Alapati Seshadri Rao V. Agriculture Marketing Committee, Guntur, AIR. 1977, 322
4
Narendra Kumar V. Union of India, AIR. 1960, SC 430
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SUB-DELEGATION OF JUDICIAL POWER

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.
Mahajan, in the leading case of Delhi Laws Act, 1912 in re, 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. It is they and they alone who are
trusted with the decision of a case.

SUB-DELEGATION OF ADMINISTRATIVE POWER

Exclusion of judicial review: the rule of law has always recognised power of judiciary to
review legislative and quasi-legislative acts. The validity of a delegated legislation can be
challenged in a court of law. As early as 1877 in Empress v. Burah, the High Court of
Calcutta High Court was reversed by the Privy Council, 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.5

5
https://www.slideshare.net/babyramyamuppirisetty/admin-presentation-15618911
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CHAPTER V. 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, 1971.6 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 delegare' (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,7 the U.P.(Temporary) Control of Rent and
Eviction Act, 1947 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,8 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

6
Seventeenth Reports (V.L.S.) 19 (1976). Also see Fourteenth Report (V.L.S.) 9 (1974).
7
AIR 1961 SC 606: (1961) 3 SCR 495
8
AIR 1965 SC 1619; (1965) 22 SCR 845
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Additional District Magistrate, the action was held bad. Here, the principle of delegated
legislation was held subject to the strict interpretation of the statute.
Another illustration of such strict interpretation by the Apex Court is, the case of District
Collector Chittoor v. Chittor District Groundnut Traders Association,9 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,10 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". The same principle is accepted in India as the basic
principle.11
In, Bombay Municipal Corporation v. Thondu,12 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".
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".

9
AIR 1989 2 SCC 58 at 63; AIR 1989 SC 989
10
(1936) 298 U.S. 468 (481)
11
Sahni Silk Mills (P) Ltd. V. ESI Corpn., (1994) 5 SCC 346 (352)
12
AIR 1965 SC 1480 (1488): (1965) 2 SCR 929 (932)
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CONCLUSION

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 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. 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.
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BIBLIOGRAPHY

● Saad Abdulbaqi Sabti & YP Rama Subbaiah, Conceptual analysis of sub Delegation:
An overview, Volume 3, INTERNATIONAL JOURNAL OF LAW, Page No. 75-79
(2017), www.lawjournals.org
● https://www.slideshare.net/babyramyamuppirisetty/admin-presentation-15618911
● Seventeenth Reports (V.L.S.) 19 (1976). Also see Fourteenth Report (V.L.S.) 9
(1974)
● Alapati Seshadri Rao V. Agriculture Marketing Committee, Guntur, AIR. 1977, 322
● Sahni Silk Mills (P) Ltd. V. ESI Corpn., (1994) 5 SCC 346 (352)
● Narendra Kumar V. Union of India, AIR. 1960, SC 430
● Bombay Municipal Corporation v. Thondu, AIR 1965 SC 1480 (1488)
● Morgan (I) v. U.S, (1936) 298 U.S. 468 (481)
● District Collector Chittoor v. Chittor District Groundnut Traders Association, AIR
1989 SC 989