Research Project on

SUB-DELEGATION: MEANING AND JUDICIAL

APPROACH ON SUB-DLEGATION

Submitted by
SULAGNA DUTTA
Division.B... PRN..17010323124..Class 2017-22...
Symbiosis Law School, Hyderabad
Symbiosis International University, Pune
In
September, 2019

Under the guidance of

Dr. Priyanka Mohod
Assistant Professor (Sr)
Symbiosis Law School, Hyderabad
Symbiosis International University, PUNE

ADMINISTRATIVE LAW

1
 C E R T IF IC AT E

The Project titled “Sub-Delegation: Meaning and Judicial Approach on Sub-

Delegation” submitted to the Symbiosis Law School, Hyderabad as part of Internal
assessment on Company Law - I is based on my original work carried out under the
guidance of Dr. Priyanka Mohod from August to September, 2019. The research
work has not been submitted elsewhere for the award of any degree.

The material borrowed from other sources and incorporated in the thesis has been
duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the candidate

Date: 27th September, 2019

2
 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Dr. Priyanka Mohod
for his/her enlightening lectures. I would also like to express my sincere gratitude to
our teaching staff for guiding me the path towards gaining knowledge. I would like to
thank the Library Staff of Symbiosis Law School, Hyderabad as well for their co-
operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided
me in making this project.

Signature of the candidate

Date:27th September, 2019

3
 INDEX

Chapter 1
Abstract………………………………………………………… 05
Introduction…………………………………………………….06-07
Scope of the Subject……………………………………………07
Research questions…………………………………………….. 08
Research Methodology……………………………………….... 08
Research Objective……………………………………………...08
Literature Review………………………………………………09

Chapter II
Body…………………………………………………………… 10-17
Conclusion…………………………………………………….. 18

References ………………………………………………….....19

4
 CHAPTER 1
ABSTRACT

India has adopted a representative system whereby the functions of the organs
of the government are separated by the doctrine of Separation of Powers. Under
this broad heading of Separation of Powers, the distribution is designed in a
way such that the legislature is the organ that deals with the formulation of
legislation or laws, the Executive with the implementation of such laws and the
Judiciary with the independent adjudication of disputes arising out of such laws.
However, with the past paced economy and societal phenomena, it is becoming
more difficult for the Legislature to keep up with the dynamics of laws.
Therefore, to reduce the workload on the law-making organ of the Government,
it may delegate some of its powers to Executive with certain limitations. This in
administrative terms is referred to as delegated legislation. This may be further
delegated to subordinate authorities. This is yet another classification of
administrative rule-making which has been elaborated and widely discussed in
this paper. Further the approach of the Judiciary towards such delegation has
also been attempted to be analysed in the hypothesis of this research project.
The adoption of the modern concept of welfare state has further raised the
importance of this subject in the present scenario that necessitates the need of
this deliberation with regard to the administration of India.

5
 INTRODUCTION

With the adoption of the concept of welfare state1 by the Indian Constitution
which forms the foundation for Indian administrative law, the Government has
the responsibility to make laws that would bring well-being2 and prosperity to
every aspect of human life be it food and sanitation or security of the Nation.
While discharging the welfare function, the Government also has to consider the
Majoritarian principle that is providing the greatest happiness to the greatest
number of people3. By reason of this fact, the legislature which has the
responsibility to formulate laws for the Nation has to keep up with making and
updating laws with respect to every sphere affecting the life of the citizens. This
becomes a hideous task and the legislature is often seen unable to cope up with
legislative demands of the fast paced society. Owing to this reason, the
Executive is allowed to formulate laws4 with regard to certain aspects of
administration. This also reflects the fact that India has adopted the doctrine of
Separation of Powers in a flexible manner. Flexibility and adaptability are the
two main features on which this administrative principle of sub-delegation is
standing. To make it closer to the implementation of public opinion, often this
rule making power of the Executive is further delegated to the other subordinate
authorities as the latter exercise of rule-making power is referred to as sub-
delegation in terms of administrative law. This is subjected to certain restrictions
such as the rule-making powers cannot be delegated until and unless it is
provided by the Enabling Act under which such power is being delegated. Such
a delegation to a subordinate authority may either be explicit or implicit. The
approach of the Judiciary with regard to the same has also been a topic of
deliberation in the recent times since the mechanism of sub-delegation is often
debated to have postpone the rule-making process on part of the Executive that
should be treated as a last resort under unavoidable circumstances. Another
ground on which the mechanism of sub-delegation is rejected by experts is that

1
Principal & Dean, Faculty of Law, New Law College, Bharatiya Vidya Peeth University, Pune
2
Bharat Bank Vs. Employees of Bharat Bank, AIR 1950 SC, P.306
3
Bentham’s theory of Utility. (theory of legislation) – P.1
4
International Journal of Law ISSN: 2455-2194, RJIF 5.12

6
 there exists a huge gap between the law makers and the people for whom the
laws are made. The closest relationship exists between the people and the
legislature. The sub-delegation to some other authority by the executive is like
widening the already widened relationship between the executive and public
opinion of the citizens. Thus, steps should be taken to ensure that the executive
does not end up becoming a parallel legislature.

SCOPE OF THE SUBJECT

Taking into consideration the Indian Administrative Scenario, the Judiciary has
time and again taken the view that delegated legislation is never as effective as
the Legislature discharging its law making functions as an organ of the
Government. It has always considered this mechanism of sub-delegation as one
that should be resorted to as a measure when all doors have been shut and the
alternative attempts have been failed that is to say when the parent Act in explicit
or implicit terms dictates that such rule-making power should be delegated to
authorities other than the Legislature. There are a number of challenges5 that
come about when this mechanism is put into operation such as delayed results,
postponement of the discharge of rule-making powers, exercise of powers
beyond what has been laid down by the Parent Act. The Judiciary has time and
again in various pronouncements pointed out that sub-delegation is not
permissible unless absolutely necessary and provided by the enabling Act to
provide efficiency to the legislature and bring about a balance in the
administrative powers of the Government for the achievement of better results.
The scope of the mechanism of sub-delegation is restricted to what the parent
act states with regard to such delegation. This concept has developed over time
and has emerged as a burning topic of deliberation within the Judicial
community as the courts have time and again deliberated upon it and its
constitutionality all of which has been attempted to be analysed in this research
paper to provide a more coherent picture in the mind of the reader about the
same. The situations under which rule-making powers can be sub-delegated by
the legislature to subordinate authorities, the way this mechanism works and the

5
Prof (Dr) Mukund Sarda,”Judical Control over Delegated Legislation”

7
 hindrances that may be faced as a result of application of this doctrine are a part
of the scope of this subject that is dealt with in this paper.

RESEARCH QUESTIONS

1. What is meant by sub-delegation in the backdrop of the Indian Constitution

and what is the need for such a mechanism?
2. What is the approach of the Judiciary with regard to the mechanism of
Sub-delegation?
3. Why is sub-delegation not regarded as that effective a method for the
purpose of rule-making and Judicial Approach to the same?

RESEARCH METHODOLOGY

This paper is written according to the 2Oth Bluebook Edition format. For
research purposes, secondary sources of research have been used like analysed
data from secondary sources- research papers, journals, books, articles and
essays. I have also referred to important legal authorities like the Constitution
of India and various case laws. The footnotes have been written according to the
20th Blue Book Citation. The research methodology used in this project is
through qualitative methods. The strength of this type of research is its ability
to provide complex textual descriptions on the subject. This type of
methodology is used to figure out the analytical objectives of the subject and
provide a general framework for the same.

RESEARCH OBJECTIVE

1. TO STUDY what is meant by sub-delegation in the backdrop of the Indian

Constitution and what is the need for such a mechanism?
2. TO ANALYSE what is the approach of the Judiciary with regard to the
mechanism of Sub-delegation?
3. TO CRITICICALLY EXAMINE as to why the concept of sub-delegation
is not regarded as that effective a method for the purpose of rule-making?

8
 LITERATURE REVIEW

“ADMINISTRATIVE LAW”, published by Eastern Book Company (ninth

edition, 2017) has been really helpful in creating the structure for the project
report for the said topic. The book has made the discussion throughout clear,
lucid, brief and coherent. Further, a number of journals and articles have been
referred to get an unambiguous idea about the mechanism of sub-delegation and
the Indian Judiciary’s approach to the same. "Time Management Strategies as
a Panacea” by Akinfolarin, A. V has also been referred to elaborate on the
problem of time deficiency considering the administrative workload of the
welfare state aministration.

9
 CHAPTER II
BODY
1. What is meant by sub-delegation in the backdrop of the Indian Constitution
and what is the need for such a mechanism?

The prima facie rule that has been established with the mechanism of sub-
delegation is that if the powers of law making have been entrusted to a body or
organ, then it is not desirable for such person or organ to further delegate it to
another. This principle draws its origin from the Latin maxim- delegatus non
potest delegare. However this is also subject to certain restrictive provisions that
is such power may be delegated further to subordinate authorities if the enabling
Act or the Parent Act provides for such an action to be undertaken under certain
enumerated circumstances. One notable instance that has acquired an important
section of administrative law textbooks is the sub-delegation related to the
Essential Commodities Act of 1955. This Act under Section 3 has explicitly
confers rule-making power to the Central Government. This mechanism is what
is referred to as delegated legislation. Further the Act provides that this power
of formulating laws may be delegated by the Central Government to its officials
or to any of the state Governments that are concerned with the matter. There
may also be situations when this power is further delegated to the officials of
the state government by the latter.
To understand how this mechanism works, let us take the instance of the order
formulated by the Central Government commonly referred to as the Cotton
Control order. This order was made by the Central Government under Section 3
of the Act that conferred the powers on the Textile Commissioner. This is the
second stage in the process of delegation. The Textile Commissioner is then
further authorised to delegate these powers to any officer to act on his behalf
with the prior intimidation and approval of the Government through a written
order and this is termed as the method of sub-delegation. As the term suggests,
this is the third stage of delegation after the Central Government and the Textile
Commissioner and it also satisfies the pre-condition of having been provided by
the Parent Act which in the instant case is the Essential Commodities Act of
1955. This is in adherence to the Latin maxim on which the foundation of this

10
 Latin maxim stands. On the other hand, when the situation is such that powers
have been sub-delegated to subordinate authorities for the purpose of rule-
making without the provision of the Parent Act or the Enabling Act, it will be
considered to be ultra vires exercise of administrative powers by the
Government officials who are alleged to have delegated such powers. Thus if a
law is designed in such a way that empowers the Central Government to make
laws but does not give the power to further sub-delegate it to other authorities,
in such a case the exercise is limited to the mechanism of delegated legislation. 6
Under certain circumstances, the Parent Act may lay down that the policy of
sub-delegation that are ancillary to legislative functions are not invalid 7. Hence
to state it in exclusive and comprehensive terms, the mechanism of sub-
delegation extends to what is laid down by the Parent Act and anything that is
not within the ambit of dictates of the Act may be regarded as an ultra vires
exercise of powers by the Administrative authorities that can be declared to be
null and void by the Judicial Authorities who are acting as a supervisory organ
to all administrative actions undertaken by the officials. This concept of sub-
delegation is well recognised in the United Kingdom and the principle does not
stand as strong as that of United Kingdom in India. The Judicial approach to the
same has not been that motivating for this mechanism to be upheld as one of
being desirable for the transparent administration by the Government. Since
India lacks an explicit statute in terms of Administrative law, and the source of
this law is to be derived from the Constitution that is the supreme law of the
land, it becomes absolutely essential for the administrative authorities to not
only abide by the procedural aspects of law-making but also the principles of
accountability and transparency in the same. It is the right of the citizens to have
every information regarding the process of formulation of laws as they are the
ones at the receiving end of the mechanism. Though such delegation has number
of problems attached to it which have been elaborated in the latter half of the
paper, this subject has grabbed the attention of constitutional commentators in
the recent times due to the overloading of law making responsibilities on the

6
“Sub-delegation of Non-legislative Powers”, Chap. 14.
7
Union of India v. Bhanamal Guljarimal Ltd. AIR 1960 SC 475: (1960) 2 SCR 627

11
 Legislature for fulfilling the requisites of a welfare state under the Constitution
of India.
NEED FOR SUB-DELEGATION

 Acts as a time-saving mechanism for the Legislature: The mechanism of sub-

delegation often acts as a time saving mechanism for the legislature which is the
organ responsible for the formulation of the laws. As the legislature of a welfare
state, the Parliament of India has the duty to discharge law-making functions
with regard to every aspect touching the life of the citizens as a result of which
it is often over-burdened with work. The provision of sub-delegation relieves
the Parliament of such heavy workload especially petty matters and thus saves
time for it to concentrate on greater issues like security and integrity of the
nation.
 Makes the law-making system more flexible: Law is subject to societal
changes and hence is deemed to be dynamic by nature. Many aspects of law are
of such nature that it needs to be changed frequently so as to adapt to the day-
to-day changes that are occurring in the nation. This gives rise to a need of a
body that can be flexibly empowered to make such laws to fulfil the demands
arising out of such changes. The flexibility attached to the process of sub-
delegation attempts to reduce this gap between the rigidity of statutes and the
effective administration by the combined efforts of the Executive and the
Legislature which in the longer run is certainly helpful in achieving results that
are more desirable for the Nation as a whole.
 Effective in dealing with Emergencies: The mechanism of sub-delegation
often helps to tackle emergency situations that may leave the legislature
incapable to tackle single-handedly. These kind of situations call for immediate
action and spontaneous steps to be taken to prevent the undesirable aftermath
that may come out of it. The rigidity of laws during such times may lead to
unfortunate circumstances which affect the citizens in an adverse way. To
prevent such a dilemma, it is helpful to make available certain degree of
flexibility and discretion to the administrative bodies which would help lessen
the adversity of the situation and resulting in the formulation and immediate
implementation of laws and orders that form the need of the hour of
contingencies like national emergencies.

12
  Setter of new standards: The delegation of rule-making powers to authorities
other than the Legislature acts as a setter of new standards as it often breaks the
monotony of the style of laws that are made by the Legislature. It may inculcate
new ideas and perspectives which may not have come to the view of the
Legislature. This is often the situation when it comes to sub-delegation of law
making authority to officials belonging to the State Government as they are in a
position that is closer to the people and from where they can judge the needs of
the citizens in a more prospective manner.
Thus, through analysis of the above mentioned points, it can be ascertained that
though sub-delegation has a number of aspects that receive heavy criticism by
distinguished jurists and commentators, it is helpful in certain circumstances
that cannot be put aside. However all these above delegations are subject to the
provision of the Parent Acts in the absence of which such delegation will not be
considered as a valid delegation.

2. What is the approach of the Judiciary with regard to the mechanism of

Sub-delegation?

The Judiciary has always adopted a negative approach towards the mechanism
of sub-delegation. Such negative approach draws its inspiration and influence
from the Latin maxim delegatus non potest delegare which means that it is not
desirable to delegate to another authority the responsibility that has been
entrusted to one. In light of this, a number of judicial pronouncements have been
made by the Courts that bring to the forefront the approach of the Judiciary
towards this subject in the context of administration some of which are
elaborated in this paper.

In the case of Barium Chemicals Limited v. Company Law Board8, The Court
has unanimously held that delegation to subordinate authorities may be
considered as permissible provided that the control over such law-making
powers is retained by the Nominee of the Legislature, which in the instant case

8
AIR 967 SC 295, PARA 36, P. 312

13
 is the Parliament. The reason for this is that if the Delegating Authority has close
supervision over the subordinate authority with regard to approving or
disapproving the same, it can be deemed to have been made by the Delegating
authority itself. Such a sub-delegation will be considered to have been made
under law. This view has been reiterated in other judgements also like in Union
of India v. P.K. Roy9 whereby the Judiciary has taken the approach of regarding
sub-delegation as valid provided it is carried out in the supervision of the
Nominee of the Legislature.

In the case of Sahni Silk Mills (P) Ltd. v. E.S.I. Company10, the approach of
the Judiciary towards the mechanism of delegation is usually rigorous except
wherein such a thing has been facilitated by the statute within its framework.
However the real problem arises when it comes to sub-delegation because when
the legislature assigns rule-making powers to another authority, then it does so
with the assumption that such authority shall undertake such responsibility and
not delegate it further to some other person or institution to do the assigned tasks.
The problem further aggravates as unless specifically provided by the statute,
the principal delegating authority cannot review or revise the decision made by
the sub delegating authority.

Talking about the Explosives Substances Act, 1908, the approval by the Central
Government is required under section 7 of the Act. Under this Act, the Central
Government, is authorised to delegate the law-making powers under the Act to
District Magistrates. However this power cannot be further delegated to other
authorities under the said Act and this was what the Court held in the case of
State of Madhya Pradesh v. Bhupendra Singh11.
Another judgment that has become of great relevance is the one pronounced by
the Andhra Pradesh High Court whereby it observed that even if the statute does
not provide explicitly the power to sub-delegate, even then it may be interpreted
from the necessary implications of the statutory provisions. Thus from the
analysis of the above judgments, the approach of the Judiciary can be clearly

9
AIR 1968 SC 850 Para 10 pt. 850
10
(1994) 5SCC 346, Para 5 pt. 345
11
AIR 2000 SC 679

14
 established as one that does not at all encourage the mechanism of sub-
delegation unless and until it is absolutely necessary and is provided by the
statute either explicitly or implicitly. The reason that the Judiciary states for this
is that the system of sub-delegation is one that reduces the accountability and
transparency in the carriage of effective administration. The delegation of the
power of law-making which is the primary task of the legislature from one level
to another makes the process more complicated and leaves wider scope for
malicious practices that may defeat the entire process of law-making. Further
the Judiciary has also laid down that sub-delegation must be published so that
the persons who are affected by such rule-making may have an idea about them
and their binding effect. This was pronounced in the case of B.K.Srinivasan v.
State of Karnataka12. There are even times when the Parent statute itself states
that such rules made by the mechanism of sub-delegation must be published in
the Official Gazette be it the delegated rules or the sub-delegated ones. For
instance, in the case of Narendra Kumar v. Union of India13, under the
Essential Commodities Act, all general orders were to be published in the
Official gazette of the country. This basically was in relation to the publication
of the issue of permits which may be included within the ambit of sub-delegated
legislation. In the instant case such order was not notified in the official gazette
following which the Supreme Court held that such order was not legally
enforceable owing to the non-publication in the official Gazette which was
specified by the Enabling Act. The same question also arose in State of
Maharashtra v. George14 where the Court differentiated between the
publication of rules made under the Parent Act and the publication of sub-
delegated legislation under the said rules of the Act. In the instant case the
notification of the rule made by the Reserve Bank of India was held to be valid
under the Act owing to its publication in the official Gazette. It is thus the safer
view that even though the parent act does not explicitly provide for the
publication of sub-delegation, it may be done for effectiveness and clarity. Even
the Lok Sabha Committee on Subordinate Legislation has suggested that when
the statute confers a power of sub-delegation to further authorities then it must

12
(1987) 1 SCC 658 PARA 15
13
AIR 1960 SC 430
14
AIR 1965 SC 722

15
 be done in such a way so as to specify the procedure for bringing such rules to
the knowledge of the person so concerned. This has been brought before by the
Judicial Forefront in the case of Union of India v. Ganesh Das Bhojraj15.
Therefore, pertaining to the view of the Judiciary, the mechanism of Sub-
delegation must be considered as a last resort that is taken as an option when no
other measure is left behind.

3. Why is sub-delegation not regarded as that effective a method for the

purpose of rule-making and judicial approach to the same?

The mechanism of sub-delegation brings about a number of problems. The first

one being if it is actually essential for the delegating Authority to lay down
guidelines for the sub-delegate to follow as to how to go about the thing. This
matter has also been raised before the Judiciary on several occasions and it has
been time and again been reiterated by the Courts that similar to delegation, sub-
delegation is also subject to the doctrine of excessive delegation and must be
accompanied by guided principles of the delegating authority which is often not
abided by the administrative officials. The Supreme Court has observed in the
case of Laxmi Khandsari v. State of Uttar Pradesh16 whereby an order was
made under the Sugarcane Control Order under the Essential Commodities Act.
Power under this was delegated to the Cane Commissioner who made the
impugned order that was later challenged before the Judiciary. The Court was
of the view that the order was made under an enabling provision of the Essential
Commodities Act that also contained guidelines and balances to prevent any
kind of misuse by the Offcials and thus was valid under the Parent Act.
Another problem that often arises is that of sub-delegation being in very wide
terms. This issue has also received sufficient deliberation by the Lok Sabha
Committee on Subordinate Legislation. One important instance that comes up
when we talk about this aspect of ultra vires is the rules related to the Central
Silk Board, 1955 that had been sub delegated to the Silk Board when the Parent
Act had specifically enumerated that the rules must be made by the Central

15
(2000) 9 SCC 461
16
AIR 1981 SC 873

16
 Government which eventually led to it being challenged and the government
being compelled to amend such rules on the ground of it being ultra vires.
Among the other proposals of the Committee stands the one that states that
certain safeguards must also be incorporated so as to prevent the exercise of
excessive powers by the sub-delegating authority one of which id that it must
be provided by the statute either impliedly or expressly or even through
necessary implication which was elaborated in the case of Mathura Prasad
Yadav v. Inspector General.17 It is a well-established principle that no
government officials can act beyond the scope of powers that have been
entrusted to them. In the case of Allingham v. Minister of Agriculture and
Rettired LIC Officers Association 18 this principle was elaborated.

Another problem that is often accompanied by the mechanism of sub-delegation

is the laying of the rules made under such mechanism before the legislature.
This is often provided by the Parent Act itself. The problem starts as to the
confusion of whether this includes within its ambit just the rules made by the
delegate or also the sub-rules made by the sub-delegate under such rules. If the
parent act demands the presentation of only the rules then the sub-rules need not
be presented before the Legislature which would ultimately mean that the rules
made under the mechanism of sub-delegation are escaping the supervision and
scrutiny of the legislature. On the other hand, if the legislature is to scrutinise
all the rules as well as the sub rules then it would be difficult and inconvenient
for the legislature owing to the large workload.
Keeping these problems in mind, the mechanism of sub-delegation has been
rightly approached by the judiciary to be a measure that should be approached
only at the last resort if no other remedy is available to the administrative
officials. Owing to the larger number of cons than pros, the mechanism of sub-
delegation is one that brings along with it a large number of inconveniences and
confusions in the process of effective administration in the long-run.

17
1974 MPLJ 37
18
(2008) 3 SCC 321

17
CONCLUSION

It is imperative to note that the mechanism of sub-delegation is one that has been
introduced in the system of administration owing to the needs of a welfare state
legislature. Since India has adopted the concept of a welfare state, the workload
of the legislature ha by-far increased as it is required to make laws touching
every aspect of human life. This has given rise to the need of a helping hand to
the legislature. The executive officials are the next closest to the process of law
making when it comes to consideration of public opinion and public interest.
Hence the concept of delegated legislation has taken birth and has brought along
with it the additional concept of sub-delegation. The Judiciary has adopted a
non-encouraging approach towards the same until and unless absolutely
necessary and the same has been discussed elaborately in this paper. Further the
problems arising out of the adoption of the concept of sub-delegation has also
been critically analysed in the paper along with the comments of distinguished
jurists in landmark cases related to the same. After a thorough analysis of the
same, the reader will have a coherent picture regarding the concept of sub-
delegation and the approach of the Judiciary about the same.

18
 REFERENCES

1. Rules of Delegation - Retrieved December 17, 2009

2. Angst, Lukas and Karol J. Borowiecki (2014) Delegation and Motivation, Theory and
Decision
3. Vinette Rowe
4. A mechanism for identity delegation at authentication level, N Ahmed, C Jensen
- Identity and Privacy in the Internet Age - Springer 2009
5. Akinfolarin, A. V. (2017). "Time Management Strategies as a Panacea”

19