Role and Importance of Sub-Delegated Legislation- Special

Reference to Judicial Pronouncement.

ADMINISTRATIVE LAW

Submitted by:
ADITYA AMAR
Submitted to:
Dr. P.Sreedevi
2014006
SEMESTER VI
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
Visakhapatnam
April 2017

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Acknowledgment
I owe a great many thanks to a great many people who helped and supported me during the
completion of the project. My deepest thanks to Dr. P.Sreedevi the Guide of the project for guiding
and correcting various documents of mine with attention and care. She has taken pain to go through
the project and make necessary correction as and when needed.

I would also thank my Institution and my faculty members without whom this project would have
been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.

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 Table of Contents
Acknowledgment ............................................................................................................................ 2
Introduction ..................................................................................................................................... 4
Delegated legislation: .................................................................................................................. 6
Essential characteristics of Delegated Legislation: ..................................................................... 6
Types of delegated legislation: .................................................................................................... 7
Sub-delegated legislation: ............................................................................................................... 8
Definition .................................................................................................................................... 8
Object .........................................................................................Error! Bookmark not defined.
Express Power: ............................................................................................................................ 8
Implied power: ............................................................................................................................ 9
Concurrent Jurisdiction: ............................................................................................................ 10
(a) Sub-delegation of legislative power .................................................................................... 10
(b) Sub delegate cannot act beyond the power conferred on him by the delegate. ................... 11
(b)Sub-delegation of Judicial Power: ........................................................................................ 12
(c)Sub-delegation of administrative power: .............................................................................. 13
Exclusion of judicial review: ................................................................................................. 13
Ex: finality clauses................................................................................................................. 14
Control of Sub-delegated: ............................................................................................................. 14
Criticism:....................................................................................................................................... 15
Laying of Orders on the Table ...................................................................................................... 16
Foreign Doctrines against the principle of Sub-delegated Legislation: ........................................ 17
1) Delegatus non potest delegare: ............................................................................................. 17
2) The Carltona Principle – Who Needs Delegation, When You Can Have an Agent? ........... 18
Conclusion: ................................................................................................................................... 20
Bibliography: ................................................................................................................................ 21

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Hypothesis:
While making this project the researcher came to the conclusion that sub-delegation is the essential
part of legislature as all the local bodies gets authorization to perform the delegated act. These
delegation of the parent act to the local bodies through the central or state government are
considered as sub-delegation.

Significance of the study:

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.

Methodology:
The researcher has purely relied on the doctrinal method of research and the basic elements were
derived from the published books and journals also there are some online materials which
supported a lot.

Review of literature:
Administrative Law C.K. Thakker Foreword by Hon'ble Mr. Justice M. Hidayatullah, 2nd
Edition, 2012, ISBN: 978-93-5028-251-9

“Your contribution for India rivals that of Sir William Wade. I am keeping it in a foremost place
in my library...” – Lord Denning

A classic work regarded as on authority on the subject. The edition has been updated with new
materials. The doctrine of Judicial Review has been dealt with exhaustively in the book. New
doctrines, such as doctrines of estoppel, proportionality, legitimate expectation etc. have been
discussed. Judicial remedies such as prerogative remedies of writs, constitutional remedies etc.

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have been highlighted. Certain new topics like protection of public property, sting operation etc.
have also been considered. This book is noteworthy for its treatment of case law. On each topic,
all relevant decisions of Indian Courts have been discussed with the relevant English and American
decisions.

Lectures on Administrative Law C.K. Takwani 2nd Edition, 5th Edition, 2012, ISBN: 978-
93-5028-672-2

Justice C.K. Takwani's Lectures on Administrative Law is an outstanding book which explains
Administrative Law in the most coherent and logical manner. The book discusses all the major
aspects of Administrative Law, like basic constitutional principles, delegated legislation, natural
justice, administrative tribunal, judicial review and their application to the administrative
machinery of India. The revised and updated fifth edition discusses latest case law on
Administrative Law which have altered the scope of Administrative Law to some extent in the
modern times. The book also takes note of new developments on the subject in India as also in
foreign countries.

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Introduction:

Delegated legislation:
Salmond defines – “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.”

Sir Cecil Carr defines – “Delegated legislation is a growing child called upon to relieve the parent
of the strain of overwork and capable of attending to minor matters, while the parent managers the
main business. The delegated legislation is so multitudinous that the statute book would not only
be incomplete but misleading unless it be read along with the delegated legislation which implies
and amends it.”

A portion of law-making power of the legislative is conferred or bestowed upon a subordinate

authority. Rules & regulations which are to be framed by the latter constitute an integral portion
of the statute itself. It is within power of parliament when legislating within its legislative few, to
confer suborbital administrative & legislative powers upon some other authority.

Subordinate legislation, is the legislation made by an authority subordinate to the sovereign

authority, namely, the legislature.

According to Sir John Salmond,* "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."

Most of the enactments provide for the powers for making rules, regulations, by-Laws or other
statutory instruments which are exercised by specified subordinate authorities. Such legislation is
to be made within the framework of the powers so delegated by the legislature and is, therefore,
known as delegated legislation.

Essential characteristics of Delegated Legislation:

1. The rules should contain short titles, explanatory notes, reference to earlier amendments, etc.
for clear understanding.

2. No extra-ordinary delay shall occur in making the subordinate legislation.

3. The administrative authority should not travel beyond the powers given in Parent Act.

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4. Essential legislative functions cannot be delegated.

5. Sub-delegation (Delegatus non potest delegare) is not encouraged.

6. General rules should not be framed with retrospective operation, unless and until the parent Act
instructs to do so.

7. Discriminatory and arbitrary rules should not be framed.

8. Wide and sufficient publicity shall be given so that general public can know it.

9. In appropriate cases, consultation also shall be made for more effectiveness and efficiency.

10. The Sub-ordinate authorities should not use rigid, crux and technical language while preparing
the rules, which may cause difficulty to understand by general public.

11. The final authority of interpretation of the subordinate rules is vested to Parliament and Courts.
But the administrative authorities are not empowered and authorised to interpret the statutes.

12. A tax or financial levy should not be imposed by rules.

13. Wherever it is necessary, the explanatory notes shall be given.

14. Public interest must be kept in view while delegating the powers, etc.

Types of delegated legislation:

 Local authority by-laws, made by local councils under enabling Acts.
 Public corporation by-laws - made under statutory authority.
 Rules of court, made by the rules committees.
 European regulations, made by the European Commission and law as a result of the
European Communities Act 1972.
 Ministerial/departmental regulations, made by statutory authority.
 Orders in Council, made by statutory authority or under the Royal Prerogative (for
example, for exercising control over new dominions).

Therefore Delegated legislation and Sub-delegated legislation are two different things which
concepts are totally different to each other. Coming to the topic Sub-delegated Legislation its role
and importance.

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Sub-delegated legislation:

Definition:

Sub Delegation – (Delegatus non potest delegare) ‘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.’

Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go

through many stages. If we may call the enabling Act the ‘parent’ and the delegated and sub-
delegated legislation the ‘children’, the parent, in his own lifetime may beget descendants up to
four or five degree. An important illustration of sub-delegation is found in the Essential
Commodities Act, 1955. Section 3 of the Act empowers the Central Government to make rules.
This can be said to be the first-stage delegation. Under Section 5, the Central Government is
empowered to delegate powers to its officers, the State Governments and their officers.

Usually under this provision, the powers are delegated to State Governments. This can be said to
be the second-stage delegation (sub-delegation). When the power is further delegated by State
Governments to their officers, it can be said to be the third-stage delegation (subsub-delegation).
Thus, under Section 3 of the Essential Commodities Act, 1955, the Sugar Control Order, 1955 was
made by the Central Government (first-stage delegation). Under the Order, certain functions and
powers are conferred on the Textile Commissioner (second-stage delegation). Clause 10
empowered the Textile Commissioner to authorize any officer to exercise on his behalf all or any
of his functions and powers under the Order (third-stage delegation).

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.
Thus, in Central Talkies Ltd. v. Dwarka Prasad,1 the U.P. (Temporary) Control of Rent and
Eviction Act, 1947 provided that no suit shall be filed for the eviction of a tenant without
permission either of a District Magistrate or any officer authorized by him to perform any of his

1
1961 AIR 606, 1961 SCR (3) 495

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functions under the Act. An order granting permission by the Additional District Magistrate to
whom the powers were delegated was held valid.

On the other hand, in Ganpati Singhji v. State of Ajmer,2 the parent Act empowered the Chief
Commissioner to make rules for the establishment of proper system of conservancy and sanitation
at fairs. The rules made by the Chief Commissioner, however, empowered the District Magistrate
to devise his own system and see that it was observed. The Supreme Court declared the rules ultra
vires as the parent Act conferred the power on the Chief Commissioner and not on the District
Magistrate and, therefore, the action of the Chief Commissioner sub-delegating that power to the
District Magistrate was invalid. Sometimes, a statute permits sub-delegation to authorities or
officers not below a particular rank or in a particular manner only. As per settled law “if the statute
directs that certain acts shall be done in a specified manner or by certain persons, their performance
in any other manner than that specified or by any other person than one of those named is impliedly
prohibited.” In other words, ‘where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all’.

Implied power:
But what would happen if there is no specific or express provision in the statute permitting sub-
delegation? The answer is not free from doubt. In Jackson v. Butterworth, Scott, L.J. held that the
method (of sub-delegating power to issue circulars to local authorities) was convenient and
desirable, but the power so to sub-delegate was, unfortunately, absent.

The other view, however, is that even if there is no provision in the parent Act about subdelegation
of power by the delegate, the same may be inferred necessary implication. 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.”

In States v. Baren,3 the parent Act conferred on the President the power to make regulations
concerning exports and provided that unless otherwise directed the functions of the President
should be performed by the Board of Economic Welfare. The Board sub-delegated the power to

2
1955 AIR 188, 1955 SCR (1)1065
3
No. 95–10369. September 04, 1996

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its Executive Director, who further sub-delegated it to his assistant, who in turn delegated it to
some officials. The court held all the sub-delegations valid.

Concurrent Jurisdiction:
If the authority, on whom power is conferred, validity sub-delegates it, it can even then exercise
the power provided that it so wants. In Godavari v. State of Maharashtra,4 the power of detention
was conferred on the State Government under the Defence of India Rules but it was sub-delegated
to the District Magistrate. It was held the power could be exercised either by the District Magistrate
or the State Government. In such a case both principal authority and delegate will have concurrent
jurisdiction.

Sub-delegation can be studied under three sub-heads:

(a) Sub-delegation of legislative power.

(b) Sub-delegation of judicial power.

(c) Sub-delegation of administrative power.

(a) Sub-delegation of legislative power:

The maxim ‘delegatus non potest delegare’ (a delegate cannot further delegate) applies to
legislation also and it is not possible for the delegate to sub-delegate the power conferred on him
unless the parent Act authorises him to do so either expressly or by necessary implication.
Assuming that the sub-delegation is permissible under the parent Act, what are the limitations and
safeguards in this behalf?

Here, the following propositions may be laid down:

(1) If the parent Act permits sub-delegation to officers or authorities not below a particular rank,
then the power can be delegated only to those officers or authorities.

Under Section 3 of the Defence of India Act, 1962, the Central Government was empowered to
make rules authorising detention of persons by an authority not below the rank of a district

4
1964 AIR 1128, 1964 SCR (6) 446

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magistrate. Section 40 authorised the State Government to delegate its powers to any officer or
authority subordinate to it. The Supreme Court held that the power of detention could be sub-
delegated to any officer not below the rank of a District Magistrate and the exercise of power to
the Additional District Magistrate was illegal.5But even if there is no provision in the parent Act
that the sub-delegation should be made to an officer or an authority not below a particular rank,
the courts have taken the view that the power can be sub-delegated ‘only to competent and
responsible persons’.

(b) Sub delegate cannot act beyond the power conferred on him by the delegate.
In Blackpool Corpn. V. Locker,6 under the Defence Regulations, 1939, the Minister was
empowered to take possession of land. By issuing circulars, he sub-delegated this power to the
Blackpool Corporation, as was within his powers. The circulars contained certain conditions and
one of them was that furniture should not be requisitioned. The Corporation requisition and
plaintiff’s dwelling house with furniture. The Court of Appeal held the impugned action ultra vires
since it went beyond conferred by the Minister on the Corporation.

(3) If some conditions are imposed by the delegate who must be complied with by the sub-delegate
before the exercise of power, those conditions must be fulfilled; otherwise exercise of power will
be ultra vires.

Under Section 4 of the Essential Supplies (Temporary Powers) Act, 1946, certain powers were
sub-delegated by the Central Government to the Provincial Government subject to the condition
that before making any order, concurrence of the former must be obtained by the latter. An order
was passed by the Provincial Government without obtaining concurrence of the Central
Government. The order was held ultra vires as the conditions was not satisfied.7

Similarly, if sub-delegation can be made through regulations, it could not be affected by passing
a resolution.8

5
Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619: (1965) 2 SCR 845.
6
(1949) 1 KB 349: (1948) 1 All ER 85
7
Radhakrishan v. State, AIR 1952 Nag 387.
8
Naraindas v. State of M.P., (1974) 4 SCC 788; AIR 1974 SC 1232

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(b)Sub-delegation of Judicial Power:
In England9 and in America10 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.

In Morgan v. U.S.11 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 an impersonal obligation.
It is akin to that of a judge. ‘’

De Smith12 says: “the maxim (delegates non potest delegare) is applied with the utmost rigour to
the proceedings of the ordinary courts, and in the entire process of adjudication a judge must act
personally, except insofar as he is expressly absolved from his duty by statute. ‘Only in very
exceptional circumstances May judicial functions be sub-delegated in the absence of express
authorisation.’

Lord Denning13 rightly states: “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
expressly or by necessary implication.”

The same principle is accepted in India as the basic principle.14 In the words of Hidayatullah, (as
he then was) “it goes without saying that judicial power cannot ordinarily be delegated unless the
law expressly or by clear implication permits it.”15

In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C.16 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 up a note before the Minister
for final decision and the order was passed by the Minister. Quashing the orders, passed by the

9
Halsbury’s laws of England (4th Edition, volume. 1) at p. 34; de smith, Judicial Review of Administrative Action
(1995); Local Govt. Board v. Arlidge, 1915 AC 120: 84 LJKB 72; Wade, Administrative law (1994)
10
Runkle v. U.S., (1887) 122 US 593.
11
(1936) 298 US 468.
12
Judicial Review of Administrative Action (1995)
13
Barnard v. National Dock Labour Board, (1953) 1 All ER 113: (1953) 2 QB 18: (1953) 2 WLR 995.
14
Sahni Silk Mills Ltd. V. ESI Corpn., (1994) 5 SCC 346 (352).
15
Bombay Municipal Crpn. V. Thondu, AIR 1965 SC 1486: (1965) 2 SCR 929 (932)
16
AIR 1959 SC 308 (327): 1959 Supp (1) SCR 319.

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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.”

At the same time, practical difficulties must also be appreciated. It is not possible for all judicial
and quasi-judicial authorities to take the entire evidence in all cases, hear the parties and their
representatives or advocates, and give decisions. In these circumstances courts have allowed some
relaxation and held that it is permissible for judicial or quasi-judicial bodies to delegate certain
functions, e.g. holding of inquiries, taking of evidence, hearing of parties and to appoint assistants
for the said purposes, provided always that after receiving evidence in the aforesaid manner they
give an opportunity to the parties to clarify their stand before a decision is finally arrived at by
them.

It is submitted that the following observations of Mahajan, in the leading case of Delhi Laws Act,
1912 in re17, 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. 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.”18

(c)Sub-delegation of administrative power:

In certain circumstances and on certain conditions, administrative power can be sub delegated.

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,19 the High Court of Calcutta High Court was reversed by the Privy
Council,20 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.

17
AIR 1951 SC 332: 1951 SCR 747.
18
Murray v. Hoboken, (1856) HOW 272, 284: “we do not consider Congress can withdraw from judicial cognizance
any matter which from its nature, is the subject of a suit at the common law, or in equity, or in admiralty.”
19
ILR 3 Cal 64: 1 CLR 161.
20
R v. Burah, (1878) 3 SC 889: 51A 178: 4 Cal 172.

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 Sometimes, however, attempts are made by the legislature to limit or exclude judicial
review of delegated legislation by providing different modes and methods. Thus, in an Act a
provision may be made that rules, regulations, bye; laws, etc. made under it “shall have effect as
if enacted in the Act”, ‘shall be final’; “shall be conclusive”, “shall not be called in question in any
court”, “shall not be challenged in any legal proceedings whatsoever” and the like. The question
is whether in view of these provisions judicial review of delegated legislation is ousted?

Ex: finality clauses

Sometimes, provisions are made in a statute by which the orders passed by administrative
tribunals or other authorities are made final. This is known as statutory finality. Such clauses are
of two types:

(i) Sometimes no provision is made for filing any appeal, revision or reference to any
higher authority against an order passed by the administrative tribunal or authority; and

(ii) Sometimes an order passed by the administrative authority or tribunal is made final and
jurisdiction of civil court is expressly ousted.

With regard to the first type of finality, there can be no objection, as no one has an inherent
right to appeal. It is merely a statutory right and if the statute does not confer that right on any
party and treats the decision of the lower authority as final, no appeal can be filed against that
decision.21

Control of Sub-delegated:
All the fundamental principles which apply to the functioning of an administrative
authority exercising its powers, whether legislative, judicial or quasi-judicial would apply to
control the sub-delegated legislation as well. One basic principle is that a sub-delegate cannot act
beyond the scope of power sub-delegated to him. If the sub-delegation is conditional, then it is
necessary that sub-delegate must observe the conditions otherwise his action will be ultra vires.

21
For detailed discussion, as to right of appeal, Thakker, Code of Civil Procedure (2002, Vol.II)

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 All orders made under statutory authority by executive or administrative agencies are,
moreover, subject to examination by courts at the instance of a third party on the plea of ultra vires.
Validity of a Rule, whether it is declared to have effect as if enacted in the Act or otherwise, is
always open to challenge on the ground that it is unauthorised22. In order to be valid, subordinate
legislation must be intra vires of the statute, which authorized the making of the orders by the
executive and should not violate any provision of the Constitution. Further, the orders made under
a power conferred by the Legislature must be reasonable23. Moreover, to be valid or effective,
these orders must be duly and properly published24. Where the statute violates some provision of
the Constitution, or instead of delegating the power of making orders the Legislature parts with its
essential legislative functions to others, the statute itself becomes void, and with it, the orders made
thereunder25. As a corollary to the general rule of ultra vires, the power of subordinate legislation
can be exercised only in the manner laid down in the parent Act and not in any other way.

Criticism:
The practice of sub-delegation has been heavily criticized by jurists. It is well established that the
maxim delegatus non potest delegare (a delegate cannot further delegate) applies in the field of
delegated legislation also and sub-delegation of power is not permissible unless the said power is
conferred either expressly or by necessary implication. de Smith says, “there is strong presumption
against construing a grant of delegated legislative power as empowering the delegate to sub-
delegate the whole or any substantial part of the law-making power entrusted to it.” Bachawat, J.
in the leading case of Barium Chemicals Ltd. v. Company Law Board states: “The naming of a
delegate to do an act involving a discretion indicates that the delegate was selected because of his
peculiar skill and the confidence reposed in him, and there is a presumption that he is required to
do the act himself and cannot re-delegate his authority.”

It is also said, ‘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

22
State of Kerala v. K.M. Charia Abdulla & Co., A.I.R. 1965 S.C. 1955
23
Bhushan Lal v. State, A.I.R. 1952 Allahabad 866.
24
Harla v. State of Rajasthan, 1952 S.C.R. 110; see also Rule 319.
25
In re. Delhi Laws Act Case, 1951 S.C.R. 747 (946, 947).

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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.’

Finally, 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.

Laying of Orders on the Table

Where any order framed in pursuance of the Constitution or of the legislative functions
delegated by an Act of Parliament to subordinate authority is required to be laid on the Table for
a period specified in this behalf in the Constitution or the relevant statute, this specified period has
to be completed before the Lok Sabha is adjourned sine die and later prorogued, unless otherwise
provided in the Constitution or the relevant statute. If the specified period is not so completed, the
order is required to be re-laid in the succeeding session or sessions until the said period is
completed in one session26.

All notifications containing these rules, regulations, etc. are required to be laid on the
Table within a period of fifteen days after their publication in the Gazette, if the Lok Sabha is in
session. If it is not in session, they are to be laid on the Table as soon as possible, but in any case
within fifteen days of the commencement of the next session27.

A notification once issued under an Act which contains provision for its being laid on the
Table has to be so laid. It cannot be withheld merely on the ground that it is to be amended and

26
L.S. Deb., 17-11-1959, c. 345.
27
On 10 May 1973, when the Iron and Steel (Control) Amendment Order, 1973, published in Gazette, dated 12 April
1973, was laid on the Table, a member raised a point of order regarding delay in laying the order on the Table and
demanded that the Minister should explain reasons for delay. The Deputy Speaker observed that as recommended by
the Committee on Subordinate Legislation, all statutory rules and orders should be laid on the Table within 15 days
of their publication and as there was delay in the present case, a statement regarding delay should be laid as soon as
possible. The statement explaining reasons for delay was accordingly laid on the Table on 11 May 1973. The
Examination of Masters and Mates (Amendment) Rules, 1973, published in the Gazette, dated 17 March 1973, were
laid on the Table on 14 May 1973. A statement explaining the reasons for delay was laid on the Table on 16 May
1973.

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will be laid on the Table in the amended form. In such cases, both copies have to be laid26.
Whenever there is undue delay in laying a notification on the Table, the Minister concerned is
required to lay on the Table along with the notification, a statement giving reasons for such delay.
However, in exceptional circumstances, such statement may be laid afterwards28.

Normally orders are laid on the Table only after they have been notified in the Gazette.
An exception has, however, been made in a case where there was no provision in the Constitution
about orders being notified in the Gazette and the ground of ‘security’ was pleaded by the Minister
as an argument for not publishing notification29.

Foreign Doctrines against the principle of Sub-delegated

Legislation:
1) Delegatus non potest delegare:
The Latin maxim that is often considered the starting point in consideration of delegations is
delegatus non potest delegare, which means, a person invested with a statutory power must
exercise it personally, rather than delegate its exercise to others.

It also means that a person who is exercising delegated power cannot further delegate or sub-
delegate to another.

This Latin maxim is only that. It is a principle of the construction of statutes and regulations. It
is not a substantive law of itself but it guides the courts. It is a prima facie rule which has very

28
For example, on 25 August 1970, the Cabinet Secretariat forwarded copies of the UPSC (Exemption from
Consultation) Supply Regulations, 1970 framed under Proviso to art. 320(3) of the Constitution for being laid on the
Table under art. 320(5) thereof. On enquiry regarding, date of publication of notification in the Gazette and application
of Rule 319, the Ministry stated that on considerations of security it was not desirable to publish regulations in Gazette
and there was also no provision in art. 320 for the publication of regulations in the Gazette. In view of the reasons
given by the Cabinet Secretariat, the said regulations were laid on the Table on 28 August 1970, without their being
published in the Gazette as required under Rule 319.
29
1R (CSL-1LS), Para 10.
The Working Journalists (Fixation of Rates of Wages) Rules, 1958 framed under the Journalists (Fixation of Rates
of Wages) Ordinance, 1958 were laid on the Table of the Lok Sabha on 22 August 1958 although the Ordinance did
not provide that rules should be laid. The Bill replacing the Ordinance also did not contain any provision regarding
laying of rules. On a notice of amendment of these rules given by a member, it was held that in accordance with para
10 of the First Report of the Committee on Subordinate Legislation (First Lok Sabha) the House had the power to
recommend modifications to such rules. Motions, however, could not be discussed during that session for want of
time and subsequently lapsed on prorogation of the House.

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little content in and of itself, except to act as a starting point and to reflect "important public law
values"30

Since the maxim is only a rule of construction, the presumption gives way to a contrary intent in
legislation or delegated legislation. This can be express or implied in the statute.31

The nature of the power that is to be delegated is an important consideration. For example, the
courts generally do not favour delegating judicial power or quasi-judicial power. There is a very
strong presumption against it. As Aronson says:32

“An examination of the cases shows this strong presumption to exist only where the
primary repository of power is a court, or a disciplinary body distinct from a department or other
large institution. It is trite law that a large degree of devolution of functions is permitted to
institutional and departmental decision-makers, even though they are bound by the rules of natural
justice.”

At the level of administrative decisions made by members of the executive, particularly in the
exercise of purely routine and non-discretionary functions and powers, the presumption against
delegation is at its weakest and, indeed, there is a positive presumption in favour of allowing such
routine decisions to be delegated to servants or agents.33

2) The Carltona Principle – Who Needs Delegation, When You Can Have an
Agent?
There is a line of cases in Australia starting from Carltona Ltd v Commissioners of Works34 to the
effect that Ministers are normally too busy to exercise the many and varied statutory powers and
duties placed on them personally and that, of necessity, they must either delegate or act through
an agent. The theory goes that since the Minister is responsible for the entire Department, he or
she does not lose any relevant connection to the decision. This has been applied to a statutory
officeholder as well (a Deputy Commissioner of Taxation) in O’Reilly v The Commissioners of

30
see also M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, Thomson Lawbook Co,
2013)(“Aronson”) at [6.20].
31
Ibid at [6.40]
32
Ibid at [ 6.50]
33
O’Reilly v State Bank of Victoria (1983) 153 CLR 1 at 11 and 18; and DPP v His Honour Judge Fricke [1993] 1
VR 361.
34
[1943] 2 All ER 560

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the State Bank of Victoria35. The Carltona principle was discussed by Mason J in the High Court
in Minister for Aboriginal Affairs v Peko-Wallsend Ltd36 at 37-38 in the following terms:

“The cases in which the principle has been applied are cases in which the nature, scope and
purpose of the function vested in the repository made it unlikely that Parliament intended that it
was to be exercised by the repository personally because administrative necessity indicated that it
was impractical for him to act otherwise than through his officers or officers responsible to him.”

Also, in In Re Patterson; Ex parte Taylor37, Gummow and Hayne JJ said: “The presence of an
express, and limited, statutory power of delegation does not necessarily exclude the existence of
an implied power of a Minister to act through the agency of others.”

In Plaintiff M61/2010E v Commonwealth38 the High Court determined that judicial review was
available in relation to the assessment and review of asylum-seeker applicants on Christmas Island.
The Carltona principle was argued but the Court decided the matter without relying on the
principle. The Court said:

“It is convenient at this point to deal with how resolution of the issue that is now under
consideration fits in with what is usually called the "Carltona principle”. The Carltona principle
has been described as a principle of agency, distinct from a delegation of power, which allows an
agent to act in the principal's name and use all of the principal's power. The Commonwealth and
the Minister submitted that, while the Carltona principle would allow activities of a Minister's
Department to be attributed to a Minister, the position is different where (as here) the relevant
powers are ones which the statute requires be exercised by the Minister personally.

It is not necessary to decide whether the analogy which the Commonwealth and the
Minister sought to draw is apt. Nor is it necessary to attempt to identify the limits of the Carltona
principle. What is presently important is that what the Department did, in conducting assessments
and obtaining reviews, was done in consequence of a ministerial decision that those steps be taken.
In requiring those steps to be taken, the Minister did not seek to (and did not) delegate any power.
But the fact that the steps were taken in consequence of a ministerial decision is important.”

35
(1983) 153 CLR 1
36
(1986) 162 CLR 24
37
(2001) 207 CLR 391 at [180]
38
(2010) 243 CLR 318

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The important practical point to take from Carltona is the distinction between notions of
administrative agency (ie the Carltona principle) where an officer/decision-maker does things for
and on behalf of the repository of the power (eg the Minister) and the notion of delegation where
the power is exercised by the repository of the power through the actions of the officer. The officer
is NOT a delegate. He/she does not take the action in question as the repository of the power. In
contrast, a delegate does exercise the power as the repository of the power. However, at the
Commonwealth level (but not at the State level) this principle has arguably been affected by s
34AB of the Acts Interpretation Act where, for the purposes the Act under which the power has
been conferred on the delegate, things done by the delegate are taken to have been done by the
delegator of the power39.In a particular circumstance, the operation of s 34AB and its intersection
with Blue Sky principles may well have a significant role to play in the context of judicial review
for jurisdictional error.

Conclusion:
This power of delegation is a constituent element of the legislative power as a whole. So
long as the Legislature indicates in the operative provisions of the statute the policy and purpose
of the enactment, the mere fact that the legislation is skeletal or the fact that a discretion is left to
those entrusted with administering the law, is no basis for a contention that there has been
excessive delegation of legislative power, if the power or discretion has been conferred in a manner
which is legal and constitutional.40

On the basis of judicial pronouncements, it may be taken as an established law now in

India, that the Legislature is not competent to delegate to the executive or any other body its
essential legislative function, namely, the determination of the legislative policy and its

39
“Approaches to Interpreting Legislation”, Ian Harvey - LegalWise Seminar Sydney 24 September 2009.
40
Jyoti Parshad v. Union Territory of Delhi, A.I.R. 1961 S.C. 1602.

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formulation, as a rule of conduct41. But it has been conceded that the Legislature can take the
assistance of other bodies in subsidiary matters and that the cases in which such assistance can be
taken would fall broadly into two types of legislations known as conditional legislation and
ancillary or subordinate legislation.

Bibliography:

 Books:

1) Dr. J.J.R. Upadhyaya, Administrative law, 7th Edition (Central Law Agency) 2010.

2) M.P. Jain & S.N. Jain, Principles of Administrative law, 6th edition 2011.

3) S.P. Sathe, Admistrative Law, 7th edition (LexisNexis Butterworth Wadhwa Nagpur), 2012.

 Journals:

41
Devi Das Gopal Krishan v. State of Punjab, A.I.R. 1967 S.C. 1895 (1901); Municipal Corporation of Delhi v. Birla
Cotton Spinning and Weaving Mills, Delhi, A.I.R. 1968 S.C. 1232; M/s. Tata Iron and Steel Co. Ltd. v. Workmen of
M/s. Tata Iron and Steel Co. Ltd., A.I.R. 1972 S.C. 1917; Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Assistant
Commissioner of Sales Tax, A.I.R. 1974 S.C. 1660, 1667-69.

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1) Cheadle John B, “The Delegation of Legislative Functions”, The Yale Law Journal, Vol. 27,
No. 7 (May, 1918).

2) “Delegations and Sub-Delegations Making Decisions without Authority”, A paper delivered

by Mark Robinson SC to a LegalWise Conference “Administrative Law Update” held in Sydney
on 26 March 2013.

 Websites.

1) www.manupatra.com

2) www.westlaw.com

3) www.sscrn.com

4) www.ssc.com

5) www.legalservices.com

6) www.articlesbase.com

7) www.legalquest.in/index.php/students/.../415

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