ijalr

Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

DELEGATED AND SUB – DELEGATED LEGISLATION: CONCEPT UNDER ADMINISTRATIVE LAW

ABSTRACT

Delegated and Sub-delegated is part of the Constitution, but this is the concept under administrative law. To know delegated and sub-delegated legislation, firstly we need to know what administrative law is. Administrative law is the legal framework of the Constitution within the public administration. It creates and develops a system of public administration under the concept of law. Administrative law function as a blood in the Constitution skeleton. Delegated and sub-delegated legislation are the types of legislation which we study under administrative law. In this article, we will discuss meaning, forms or types, legal maxims and case laws of the delegated and sub-delegated legislation. The scope of delegated and sub-delegated legislation is very wider, it includes many forms of them.

DELEGATED LEGISLATION: MEANING, NATURE AND SCOPE, REASONS FOR DEVELOPMENT, CONSTITUTIONALITY AND LIMITATIONS

MEANING: Delegated legislation means delegation of power passed or delivers from higher authority to lower authority. Delegated legislation means the power is given by the parliament to the administrative authority. It can also mean that legislation made by other authorities other than legislature. Thee delegated authority has to work or act within the limitation of superior authority.

NATURE AND SCOPE: The scope of delegated legislation is too wider and broader. This legislation established a good administration in Indian legal system. The rigid application of the doctrine of non-delegability is not permissible in India, because of complexity and technicality of law in India. This helps to government to deal with the social and economic problems in effective and efficient manner. This legislation includes doctrine of ultra vires, it means beyond the scope, authority or power of any corporation or statutory body. It implies for absence of power to do any act. If delegated authority do any act beyond its within limit then it becomes ultra vires and illegal or invalid.[i]

REASON FOR DEVELOPMENT OF DELEGATED LEGISLATION
   PRESSURE ON PARLIAMENT – The work of legislation is so long and large. To make a law, it has lot of time and it is not possible to discuss every detail of matter or law or any act. So, the legislature made skeleton and executive laying down rules and policies in it.

·       TECHNICALITY – Now, the subject matter of legislation is so technical. So, we need an assistance of experts. In India, we do not have any expert politician in all Fields. So, these technical matters handle and solve by experts, for e.g. gas, atomic, electricity etc.

·       FLEXIBILITY – A law has foreseen contingencies in future, Parliament cannot foreseen any contingencies while passing an enactment but the executive can satisfying these demands of foreseen contingencies for provision because they are related public opinion. For e.g. Police regulation, Bank rate, import-export etc.

·       EXPERIMENT – This method help executive to experiment in rapid utilization of experience and implementation of necessary changes in the provision in the light of experience such as Road traffic rules etc.

·       EMERGENCY – Sometimes, Parliament is not in session at that time we do not make any laws which we needed at that time then executive make some rule and regulations or can pass ordinance for particular period of time.[ii]

CONSTITUTIONALITY AND LIMITATION: Constitutionality of delegated legislation means the permissible limit within the provision of Constitution. If legislature delegates his rule-making power or authority to executive, then he has to work within the limit of constitutional provision otherwise it will be ultra vires or invalid. The essential legislative function cannot be delegated. There are four limitations on delegated legislation:

 Constitutional Supremacy – The Constitution is grundnorm of every law and act. Constitution is supreme in India. If any delegated power beyond the limit of the constitutional provision, then the rules made by delegated authority was invalid.

2.     Not contradictory to Act – If any rule made by executive or administrative authority is contradictory to act or provision of the act, then also it is invalid.

3.     Judicial Review – The concept of judicial review in delegation indicates to ultra vires, it means beyond the scope, authority or power of corporation or statutory body. 

4.     Essential Legislative Function – Legislature cannot delegates its essential legislative function. For example, legislature makes skeleton for any statute but they cannot delegate this power to other authority, they can only delegates power of laying down principles and policies.

SUB – DELEGATED LEGISLATION: MEANING, NATURE AND SCOPE, TYPES OR FORMS AND PRECEDENT IN INDIA

MEANING: Sub-delegated legislation means when the rule making authority further delegates its rule making power to issue rules to other authority then such exercise of rule- making power is known as sub-delegated legislation. The maxim “Deleatus non potest delegare”, it means “A delegator cannot further delegate”. A delegator cannot further delegate its power to other authorities, rule-making authority unless this power of delegation contained enabling act. This legislation should be express for necessary implications.[iii]

NATURE AND SCOPE: The nature and scope of sub-delegation is also wide like delegated legislation. A rule-making authority can sub-delegate its rule-making power to other authority when enabling or parent act expressly or impliedly authorize them to further delegates their powers. The maxim, Delegatus non potest delegare narrow the scope of sub-delegation. If the enabling or parent act does not expressly authorise to delegate power then legislative power cannot be sub-delegated. In a leading case, Ganpati v. State of Ajmer[iv], it was held that an enabling or parent act authorised the Chief Commissioner to making rules for the establishment of a proper system for sanitation and conservancy. The Chief Commissioner authorised District Magistrate to made rules to invent a new way of doing something his own system. The Supreme Court held that the rules were made by District Magistrate was invalid because it was sub-delegation without an express authority. It can be valid if the parent act authorised to sub-delegation. Sub-delegation includes the principle or doctrine of Excessive Legislation, it means the legislature or rule making authority excessively delegates its power or legislative function to other authority, such delegation will be held unconstitutional. This principle fulfils two objectives that it ensures democratic accountability in the laws and it gives minimum delegation to the court with discretion to judge if the delegation is ultra vires to the enable act. 

TYPES OR FORMS OF SUB-DELEGATED LEGISLATION: There are three types of sub-delegation. These are the broader classification of the sub-delegated legislation under Indian Legal System.

1.     FULL OR PARTIAL – A delegation is full when all the powers are conferred to the agent or other authority. For e.g. all power to alter or amend or repeal any law by the competent authority. A delegation is partial when he requires getting some guidelines or guidance on crucial point from the delegated authority. For e.g. Section 5 of the Essential Commodities Act, 1955. 

2.     CONDITIONAL AND 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. Unconditional delegation means the delegated authority has similar power to superior authority. Under Section 3 of the Essential Commodities Act, 1955, the sugar control was made by the Central government (superior authority) then under the order certain function and power passed or conferred to Textile Commissioner (delegated authority) and under clause 10 the power of textile commissioner can authorize to any officer to act behalf on him (sub-delegated authority).

3.     SKELETON LEGISLATION – The skeleton legislation means that superior authority makes a skeleton of statute without laying down any policy and principles and delegated authority provides blood in this skeleton by laying down policy or principle with the help of guidance and they cannot cross the limits outside the guidance.

JUDICIAL PRECEDENTS IN INDIA OF DELEGATION AND SUB-DELEGATION 

In a leading case, Ajaib Singh v. Gurbachan Singh[v], it was held that under a statute Central Government has authority to make rules for detention of any person by any other authority but not the lower than rank of District Magistrate but order of detention was passed by the Additional District Magistrate which was held bad. The delegated legislation was held strict interpretation of the statute.

District Collector Chittoor v. Chittoor District Groundnut Traders Association,[vi]in this case, the Essential Commodities Act, 1955 confers rule-making to the Central Government and the Central Government sub-delegated his power to the State Government on the condition that the State Government should obtain the concurrence of the Central Government. The Supreme Court held that State Government made rule without concurrence of Central Government. So, the rules would be ultra vires.[vii] 

Delhi Laws Act, 1912[viii]

It was a landmark judgement and case under delegated legislation. In this case, the act gives power to the Central Government to extend the area of Delhi and Ajmer-Mawar with some restrictions and modified and it was held intra vires. The legality or validity of this case was also discussed that government extend to part C states any law in force in a part A and to repeal existing law. It was held ultra vires under Article 143 of the Constitution because the delegated powers act excessively. 

CONCLUSION

Delegation and sub-delegation are the common legislation under constitutional and administrative law. Now, due to technicality and development in the structure of law, these two legislations are plays an important role because of this, superior authority or legislation has less burden of work and they can save time as well. But these legislations have also negative impact, delegated or superior authority either one or both can misuse their power of delegation. As we seen in many cases that delegated authority alter, amend or repeal act by their own choice or sometimes superior authority uses his delegated powers excessively. At last, this is the need for a good administration in Indian legal system.

 By- Nishu Singh

 

 

 



[i] Delegated Legislation Development and Parliamentary Control, last visited on 16th August 2020, http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html

[ii] Meaning and definition of Delegated Legislation, last visited 17th August 2020 https://tyrocity.com/topic/meaning-and-definition-of-delegated-legislation/

[iii] Delegation of powers, last visited on 18th August 2020, https://www.britannica.com/topic/delegation-of-powers

[iv] 1955 AIR 188, 1955 SCR(1) 1065

[v] AIR 1965 SC 1619

[vi] AIR 1989 SCC 58

[vii] Conceptual analysis of sub Delegation: An overview, last visited on 19th August 2020, www.lawjournals.org

1 thought on “DELEGATED AND SUB – DELEGATED LEGISLATION: CONCEPT UNDER ADMINISTRATIVE LAW”

Leave a Comment

Your email address will not be published. Required fields are marked *