Index

Certificate......................................................................................................................................... 2
Acknowledgment............................................................................................................................ 3
Index................................................................................................................................................... 4
Abstract............................................................................................................................................. 5
Introduction..................................................................................................................................... 5
Scope of Subject.............................................................................................................................. 6
Research Objectives:..................................................................................................................... 7
Research Questions:...................................................................................................................... 7
Literature Review:......................................................................................................................... 7
Delegation and Sub-delegation.................................................................................................. 8
Concept and nature of sub-delegation:...............................................................................8
Importance and Necessity of Delegation and Sub-delegation.........................................9
Limitations of sub-delegation.................................................................................................. 10
Critical Analysis of Delegation and Sub-delegation..........................................................12
Conclusion...................................................................................................................................... 14
Bibliography.................................................................................................................................. 15

1
Abstract

With times changing and people evolving administrative authorities are burdened with
workload. To alleviate this excess work, there is a division of work amongst the
administrative structure for a smoother operation. The workload is further delegated to
subordinate bodies and this process is termed as sub-delegation. It is usually the
executive bodies or simply the administrators that are vested with powers by the
legislators. Henry VII introduced the outline for this concept in the British era—the
process of law making is somewhat complex. Thereby vesting powers with
administrative bodies laid the path for delegation and sub-delegation in the modern era.

Introduction

The word ‘delegation’, is derived from ‘delagare’ a Latin term, that carried the meaning
of “to give responsibility or authority to another person or body” or simply means, to
pass power. Administration in layman’s terms means the practical management of an
organization or an institution, which could be governmental or non-governmental or a
quasi-governmental, and the process of directing its executive department for the
various functions it is supposed to perform. Such functions are divided into many tasks
which cannot be wholly administered by the specific organ that is supposed to carry
out, that function. Delegation comes to rescue in this case. The Black Law’s Dictionary
defines delegation as, “The act of entrusting another with authority by empowering
another to act as an agent or representative” 1. The Law Lexicon, gives a wider scope for

1
Black Law’s Dictionary’s definition of delegation

2
the word delegation and defines it as, “Delegation is the act of making or commissioning
a delegate. Delegation generally means parting of powers by the person who grants the
delegation, but it also means conferring of an authority to do things which otherwise
that person would have to do himself” 2. The concept and scope of delegation is widely
discussed and explained in many judgements and precedents and one of the landmark
cases being, Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant
Commissioner of Sales Tax and Others3

Delegation is the assignment of work by a body that has the authority and power to do a
function and to allot it to another body. It is the granting of right of making the decision
on a specified subject and direction to a subordinate to complete the task. A delegation
of power cannot be made by an official who doesn’t possess the authority himself. It is
an unsaid rule for the subordinate, to strictly function within the limitations imposed.
Delegation may be expressed or implied, formal or informal, general or specific to
issues. It serves the basic aim to reduce the work load and pressure concentrated on
one part of the administration. Delegation of power helps in utilizing the wide range of
specialized knowledge of subordinates and contributes to job satisfaction among all the
level of workers in an administration. Delegation of power, implies accountability of the
body for its functions and results, under its jurisdiction. It helps in preventing
overloading of work, especially during emergency situations, to deal with issues that
were not anticipated with speedier and procedurally simpler process.

Scope of Subject
In this research paper I intend to discuss in the concept of delegation of power and its
relevance in the current system. The paper runs through the subtopics of supplying
details, the power to modify and the power of prescribing punishments. Through these,
the author intends to depict the limitations of the sub-delegation through judicial
pronouncements. The concept and nature of sub-delegation is also introduced. The
principles that bases the foundation of delegation of power is also discussed in brief.

2
The Law Lexicon definition of delegation
3
(1974) 4 SCC 98

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This research paper also critically analyses the advantages and disadvantages of
delegation and sub-delegation by talking about its necessity and importance and also
the glitches caused in the system and its contribution in the destruction of democracy.
This research paper also throws light on the doctrine of excessive delegation as a part of
the critical analysis.

Research Objectives:
1. To understand the concept nature and principles underlying the concept of sub-
delegation.
2. To throw light on the importance and necessities of delegation and sub-
delegation.
3. To discuss the drawbacks of the delegation and sub-delegation in the current
system.
4. To list out the limitations of sub-delegation

Research Questions:
1. What is delegation and sub-delegation?
2. What is the concept and the principle underlying sub-delegation?
3. What is the importance, necessity and drawbacks of delegation and sub-
delegation?
4. What are the limitations of sub-delegation?

Literature Review:

The book “Administrative Law” by I.P. Massey is a guide that explains the concepts of
sub-delegation and delegation in simple terms. The case laws are brief and are listed in
a very convenient method, that helps in citation. The online article “Delegation of
power and its Limitations”, throws light on the limitations of delegation and give a
good critical view on the topic.
“Doctrine of Permissible Limits under Delegated Legislation”, is another online article

4
which gives judicial pronouncements that help in the analysis of the concept of sun-
delegation. The article also gives a good account of the introduction of delegation in
India during the period of world War I and II. The research paper, “Conceptual analysis
of sub-Delegation: An overview” is a very well written, well observed piece of work
that gives in brief the history, nature, concept of delegation and sub-delegation, and
even explains the forms of delegation. It also gives a compact difference on the concept
between the U.S and the U.K.

Delegation and Sub-delegation

Concept and nature of sub-delegation:

Sub-delegation or subordinate delegation is the act where a power which is already

delegated to a body by a superior body is delegated again to another subordinate body.
This needs to be within the limits of the power conferred by the legislature. Here, there
is one sovereign power and another. The latter is under the control of the former. The
subordinate body requires to have the characteristics of the legislature. Usually after
the frame work of law is completed by the legislature, the filling in details work has to
be carried out by the subordinate agencies. In a welfare state like India, the more
detailed work and service to the community from grass root level is required. This
requirement can be fulfilled only with the involvement of the lower level of government
agencies which has the most interaction with the people to whom it should benefit.
Therefore, the complicate technical details are carried out by the sub-delegates. The
orders of the superior body become the powers of the subordinate body.

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Importance and Necessity of Delegation and Sub-delegation

For instance, managing the parking regulations in a local level is not feasible by the
federal or state authority. It is not only in concern of time consumption on insignificant
matters because the union government has many other important, attention seeking
issues at hand to be prioritized but also because of the lack of local knowledge to
effectively manage the legislation and its execution practically.

Delegation of powers is not only a temporary transaction of power between the central
and the state government, but within various bodies as well. Modern development of
technology has made it too complicated for the law makers in the parliament and the
state legislators to understand or be up to date with the changing necessities. This may
require advanced technical expertise to assist the legislators to draft laws in concerning
fields. Such fields also require the need for easy amendment to keep the laws up to date
with the unforeseen situations that might arise. Such laws can be easily passed and
amended during emergency situations since it does not involve lengthy process unlike
the parliament.

Statistic report shows that the Legislative organ is capable of passing only about seventy
Acts in the parliament. This is too les a number, in comparison with the number of
issues that need to be addressed in total. Many old statutes that require amendments,
faulty ill-worded codes that require to be fine-tuned and newly arising issues are in a
bigger volume, relatively. This requires a dire need of distribution of power to carry out
functions and duties to achieve the targets and keep in pace with the fast moving world.
Delegated legislation has become a necessary evil.

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Limitations of sub-delegation

The doctrine of permissible limits under delegated legislation explains the limitations
imposed on delegation and sub-delegation. The legislature has very limited powers of
which can be delegated to the executive. As remarked by Sir Cecil Carr, the well-known
British Lawyer, “The legislature provides the gun and prescribes the target, but leaves
to the executive the task of pressing the trigger“ 4. This can be easily explained with the
practice of publishing the notification of the date when the act will come into force. This
is notified by the Government officially in the gazette while the rest of the act is drafted
by the legislature. The limitation of power on the Administration in exercised with the
power of controlling the act of supplying the details. For instances, statutes that
delegate power to the executive to make statutes applicable in other territories, without
giving them the power to modify. In such cases, the policy is completely laid down by
the legislature and the executive has no such interferences. Sometimes modification in
the statutes are allowed but, such liberty comes with restrictions.

The constitution provides for the parliamentary, judicial and procedural control over
the delegated legislation to exercise limitation. Every delegate is under the scrutiny of
the principle delegator who can always direct, control and cancel the actions performed
by the subordinate. This is implicit in India because the constitution holds the executive
responsible to the parliament. But the parliamentary control is not effective because the
legislators lack the legal skills. This requires an alternative mechanism which
introduces the need of people’s participation and better communication with different
groups. This can be balanced only through procedural control like drafting, antenatal
publicity, consultation and postnatal publicity.

In India, the judicial review of the delegated powers, is as the same as the rules
concerning the judicial review of the administrative actions. In the case of State of
Kerala v. K.M.C. Abdullah &Co5. the scope of judicial control was explained by the

4
Doctrine of Permissible Limits Under Delegated Legislation, ,
http://www.legalservicesindia.com/article/497/Doctrine-of-Permissible-Limits-Under-Delegated-
Legislation.html (last visited Sep 27, 2019).
5
1965 AIR 1585

7
Supreme Court. It held that the phrase, “shall not be called in question in any court”, as
provided in the enabling act that delegates the power to the subordinate body, to be
unconstitutional. In the other case of G.O.C v. Subash Chandra Yadav6, the apex court has
clearly held that no statutes can take away the power of judicial review from the hands
of the judiciary. Because the judicial review is a tool that the constitution uses to keep
the other two organs of legislature and executive under check. That is why the judiciary,
in the first place, is given the independence free from legislative and executive check.
The judiciary may invalidate the delegation of power in cases where the enabling act
itself is ultra-vires, or if the legislation made under the delegation is ultra-vires, or if the
administrative made legislation exceeds the scope of the enabling act.

The Delhi Laws Act, 1912, Re, reports judgments which have provided limits on the
delegation of power. It begins with the principle where “essential powers of legislation”
is not to be delegated at any circumstance. These powers consist of the choice of
legislative policies. Policies and its limitations is always to be laid down by the
legislative body. In the case of Edward Mills Co. v. State of Ajmer 7, the court laid, that
when the legislature gives plenary powers, it comes along with implied powers that
allows the subordinate to make laws that are incidental to the delegated powers.

Quoting Justice K.N. Wanchoo, in the case of D.S Gerewal v. The State of Punjab8, “There is
nothing in the words of Article 312 of Indian Constitution which takes away the usual
power of delegation, which ordinarily resides in the legislature”, clearly states the
limitation of sub-delegation and how its powers can never override the powers of the
legislature that delegates the powers.

Moreover, in article 312, the words “parliament may by law provide” is not to be
construed as that there is no scope of delegation in law made under this article. In
England, any amount of powers can be delegated by the legislature because of the lack
of rigid restriction. But in the United States of America and in India, there are regulated
restrictions on the delegation of power. This can further be understood through the case
of Panama Refining Co. v. Rayans 9, the apex court of the U.S laid that the delegation of

6
1988 AIR 876
7
1955 AIR 25
8
1959 AIR 512
9
293 U.S. 388 (1935)

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powers by the congress must be strictly in lines with the policies and established
standards.

Critical Analysis of Delegation and Sub-delegation

The Parliament owing to its lack of time to keep in pace with the numerous issues, is
forced to delegate its law making powers to other bodies. It is often criticized that the
ministers only ‘rubber-stamp’ the laws made by the civil servants and bureaucrats,
which makes the legislature look like an incompetent body.

The word delegation, as in many cases is obscure and becomes very difficult for the
courts to interpret its scope when the powers are not expressly air-tight. This might
sometimes lead to what is called excessive delegation or abuse of delegated powers.

Moreover, the language is a very significant element in law. The codes of the statutes are
debated and interpreted by lawyers and jurists in courtrooms on the basis of the
language used in the code. It is the flexibility of the language that makes the law rigid
and consistent. The expertise that indulge in law making under their delegated power
might not be qualified enough to use the language skills to keep the statutes free off loop
holes. Ambiguous words will only cause confusion and the loose words that can be
interpreted in various ways though out the country, making the laws inconsistent on a
national level.

It has been greatly criticized that sub-delegation is an unnecessary distribution of

power and that the law making ministers can consult expertise on the field while
drafting laws instead of blindly handing over the authority. Consultation with the
relevant communities and groups are even made compulsory during the framing of
laws, and this is seen to be sufficient by many legal thinkers and politicians. For
instance, if any code under PACE 1984, is issued it is a mandatory duty of the law-
makers to consult the representatives of the interests of the police groups and their
interests.

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Delegated legislation sometimes becomes sub-delegation. The lower the level of the
administration, the power is delegated to, the more unreported the function becomes.
There is lack of control because of the various horizontal levels of hierarchy through
which powers and duties are filtered through. The seepage of excessive power to the
lower levels of the government during delegation becomes dangerous and arbitrary.
The power to modify the statues before its applicability, gives a wide range of power
which might tend to make the legislation ultra vires.

Sub-delegation is not reported by media and becomes less popular unlike the actions by
the parliament and does not receive the support of the masses. Moreover, the fact that
the laws are technically not made by the representatives of the people, destroys the
concept of democracy and representation of people. They are not accountable to the
electorate. The parliamentary debates are public debates which involve a mass public
participation, which lays the foundation of a house of the people- democratic country,
whereas the delegated and sub-delegated legislation is made in private. But this
argument is defended by the fact that there are even representatives of people in the
lower levels of the government.

At the situation which needs a strict check on transparency of the functioning of

delegated legislation, scrutiny has only become more difficult. Though both the houses
of the Parliament and the Court has control over the delegation of power to legislate, it
is limited in various ways. The Scrutiny Committee has restricted check on the
delegation. The Legislative and Regulatory Reform Act 2006, gives a wide range of
powers to the ministers, but this is not as effective as expected because of the time
restrain on the ministers to discuss matters of delegation. In fact, the powers, in the first
place has been delegated, because of the time restrain. Judicial control, on the other
hand, is a very effective check on the bodies which exercise delegated power. But
keeping in mind our slow and costly judicial system, it requires a person with a lot of
money and enough time to challenge such a delegated legislation in terms of its validity,
efficiency and democracy in the court. Such difficulties make it a tough task to keep the
delegated legislation under watchful eyes.

It has also been reported that too many laws have been passed under the power of
delegated legislation where the public have not been aware of the recent changes and

10
this causes a ruckus between the administrators and the general public because if the
lack of communication.

Conclusion
Despite the presence of many flaws and drawbacks in the functioning of a delegated
legislation in a democratic society, the greater picture should be focused here. If
delegation of power to the administrators help achieve the goals of social welfare state,
and help in the smooth functioning of the government, then the benefits of the delegated
legislation have been reaped. Every nation must keep up with the trends of the global
economy. The ever- changing technologies and laws, and priorities need to focused
upon, equated with the balance of power. The burdens of the executive and legislature
can be shared and goals can be achieved under the supervision of the legislature. It is
the laws of a country that bring peace and harmony in the world. Ergo, an additional
element that serves as a helping hand in the law making process, only makes the law
more competent to be applied upon the economy. It is only that a boon that sub-
delegation involves all the levels of government and reaches people in all levels of
legislation and execution.

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Bibliography

Books

1. Jain M.P.Jain(Dr.), “Principles of Administrative law”, Lexis Nexis Publication,

5thed. 2008
2. I.P Massey, “Administrative Law”, Eastern Book Company, 9th ed. 2017

Online Articles:

1. Delegation of power and its Limitations available at:

https://www.academia.edu/22847609/Delegation_of_Power_and_its_Limitatios
(Visited on September 24th, 2019)
2. Doctrine of Permissible Limits under Delegated Legislation, available at:
http://www.legalservicesindia.com/article/497/Doctrine-of-Permissible-
Limits-Under-Delegated-Legislation.html (Visited on September 25th, 2019)

Research papers:

1. Saad Abdulbaqi Sabti, YP Rama Subbaiah, “Conceptual analysis of sub-

Delegation: An overview”, International Journal Law, Volume 3, Issue 3, Pg. 75-
79, May 2017

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2. “Administrative Law. Subdelegation of the Power to Issue Subpoenas Duces
Tecum.” Columbia Law Review, vol. 41, no. 7, 1941, pp. 1248–1251. JSTOR,
www.jstor.org/stable/1117183.

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