This article is written by Dhruv Bhardwaj, a student of Amity Law School, Delhi. In this article, he has discussed the legal maxim ‘Delegatus Non-Potest Delegare’.
In recent years, a very conspicuous trend that can be seen is that apart from the purely administrative function, the executive performs legislative functions as well. This article will go over what this trend is about, what makes it so popular and the limitations on the exercise of this power.
Because of various reasons, there is a fast development of authoritative enactment. A pattern especially in vogue today in every majority rule nation is that a decent arrangement of enactment happens in government division outside the House of Legislature. This sort of action is really called ‘Delegated Legislation’.
By and large, what happens is that the assembly authorizes a law covering just the general standards and arrangements identifying with the topic being referred to and gives rule-production control on the legislature or some other regulatory organization. This is so in light of the fact that the immediate enactment of the Parliament isn’t finished. The Executive is offered the capacity to enhance the laws made by the Legislature.
The outcome is that the method of Delegated Legislation is so generally utilized in current occasions as a procedure of government that there is no rule gone by the Legislature which does not Delegate some intensity of enactment to the Executive. It is additionally said that Delegated Legislation is multitudinous to the point that any rule won’t just be deficient yet, in addition, be deluding except if it be perused alongside the appointed enactment which enhances and changes it.
Delegated Legislation is used in two senses. In one sense Delegated Legislation refers to the exercise of power of rule-making delegated to the Executive by the Legislature. In the other sense, it means the output of the exercise of that power. In the first sense, it means that the authority making the legislation is subordinate to the legislature.
The legislative powers are exercised by an authority other than the legislature in the exercise of powers delegated or conferred on them by the legislature itself. This is also known as “Subordinate Legislation” because the powers of the authority which makes it is limited by the statute which conferred power and consequently it is valid if at all it is kept within those limits.
In the second sense, Delegated Legislation refers to all law-making which is generally expressed as rules, regulations, bye-laws, orders, schemes, directions, circulars or notifications etc.
Generally, Delegated Legislation means the law made by the Executive under the powers delegated to it by the Legislature.
Delegated Legislation as opposed to Administrative Power
If an order is legislative in character, it has to be published in a certain manner, but publication is not necessary if it is of an administrative nature. An administrative order refers to a particular individual and in this respect, it is required to be served only on the individual concerned.
Principles of Natural Justice
The Principles of Natural Justice entails 3 principles:
- Rule Against Bias
- Rules for Fair Hearing
- Reasoned Decisions or Speaking Order
In the case of adjudication, the administration is required to follow the principles of natural justice, while in the case of legislation no such requirement is necessary.
Grounds of Judicial Review
Administrative action may be challenged on the ground of mala fides but it is highly unlikely for such a challenge to prevail in case of delegated legislation.
Duty to Give Reasons
The requirement of duty to give reasons applies to administrative orders but not to legislative orders.
Factors Leading to the Growth of Delegated Legislation
Pressure Upon Parliamentary Time
As there is a marvellous increment in the functions of the state, the main part of enactment is great to the point that it isn’t feasible for the council to dedicate adequate time to examine every one of the issues in detail. Accordingly, the governing body passes skeleton enactment containing general approach and enables the executive to fill in the subtleties in this way giving fragile living creature and blood to the skeleton with the goal that it might live by making vital guidelines, guidelines, bye-laws and so forth.
Sometimes the topic of enactment is of a specialized sort and requires meeting of specialists. Individuals from Parliament might be best legislators however they are not specialists to manage very specialized issues which are required to be taken care of by specialists. In such cases, the administrative power might be appointed to specialists to manage the specialized issues. Enactment concerning nuclear vitality, atomic vitality, gas, medications or power might be cited as delineations of such details. Some things are best handled by people who have great experience in their respective domains, not always can our politicians think like people who have been committed to their craft for a really long time.
Parliament does not work constantly. At the season of passing any administrative establishment, it is preposterous to expect to anticipate every one of the possibilities beforehand. In this manner, control is essentially required to be given to the Executive to meet the unanticipated possibilities. In this manner, control is fundamentally required to be given to the Executive to meet the unanticipated possibilities or to modify new conditions emerging often. While parliamentary procedure includes delays, assigned enactment offers quick apparatus for correction. Police guidelines and certain financial guidelines identifying with bank rate, imports and fares, outside trade and so on are cases of such circumstances.
Ordinary legislative process suffers from the limitation of lack of viability and experimentation. Delegated Legislation enables the executive to experiment. The method permits rapid utilisation of experience and implementation of necessary changes in the application of the provisions in the light of such experience. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand if they are found to be defective, the defects can be cured immediately.
In the midst of crisis, fast activity is required to be taken. A crisis may ascend by virtue of war, rebellion, floods, pandemics, financial downturn and preferences. Administrative procedure isn’t prepared to accommodate earnest answer for meeting the circumstance. It is, along these lines, that the official must have a control that might be utilized in a flash. Appointed Legislation is the main helpful cure.
In some situations, the public interest demands that the law must not be known to anybody until it comes into operation. Rationing schemes or imposition of import duty or exchange control are such matters.
When a statute confers legislative powers on an administrative authority and that authority further delegates those powers to another subordinate authority or agency, it is called sub-delegation. Thus, what happens in sub-delegation is that a delegate further delegates. This process of sub-delegation may go through one stage to another stage. If the enabling Act is called the ‘Parent’ then the delegated and the sub-delegated act is called the Children.
A good illustration of the process of sub-delegation is provided by the Essential Commodities Act, 1955. Section 3 of the Act confers rule-making power on the Central Government. This can be called as the first stage of Delegation. Under Section 5, the Central Government is empowered to delegate powers to its officers, the State Governments and their officers. Frequently under this provision, the powers are delegated to State Governments.
This may be regarded as the second stage of Delegation. When the power is further sub-delegated by the State Government to their officers, it may be characterised as the third stage of Delegation. The working of the process can be seen in the context of the Cotton Control Order, 1955, The order is made by the Central Government under Section 3 of the Act (this can be called the first stage of delegation).
Under the Order, the functions and powers are conferred on the Textile Commissioner (this can be called the second stage of delegation). Under clause 10, the Textile Commissioner is empowered to authorise any officer to exercise on his behalf all or any of his functions and powers under the Order (third stage of Delegation).
Objects of Sub-Delegation
The need of sub-delegation is sought to be supported on the basis of the following factors-
- Power of delegation necessarily carries with it the power of further delegation and hence, the delegate has power to further delegate; and
- Sub-delegation is ancillary to delegated legislation, and objection to such process is likely to subvert the authority which the legislature delegates to the Executive.
Delegatus Non-Potest Delegare
The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule of law. It merely states a rule of construction of a statute. Generally, sub-delegation of legislative power is impermissible, yet it can be permitted either when such power is expressly conferred under the statute or can be inferred by necessary implication. This is so because there is a well-established principle that a sub-delegate cannot act beyond the scope of power delegated to him.
There is no difficulty as regards the validity of sub-delegation where the statute itself authorises the administrative agency to sub-delegate its powers because such a sub-delegation is within the terms of the statute itself.
Thus in Central Talkies v. Dwarka Prasad, under the U.P. Control of Rent and Eviction Act, 1947, it was provided that no suit shall be filed for the eviction of a tenant without the permission of either a District Magistrate or any Officer authorised by him to perform any of his functions under the Act. The Additional Magistrate to whom the powers were delegated made an order granting permission.
The Supreme Court held the order valid. But in Allingham v. Minister of Agriculture, under the Defence Regulations, 1939, the Committee was authorised by the Minister of Agriculture “to give such directions with respect to the cultivation, management or use of land for agricultural purposes as he thinks necessary.” The committee sub-delegated its power to its Subordinate Officer, who issued a direction, which was challenged. Holding the direction ultra vires, the Court ruled that the sub-delegation of power by the committee was not permissible.
The point is not clear as to what would be the position if there is no specific or express provision in the statute for sub-delegation of power. In Jackson v. Butterworth, it was held that the method of sub-delegating power to issue circulars to local authorities was convenient and desirable but the power to sub-delegate was absent. However, the other view is that although there is no provision enabling Act authorising sub-delegation of power by the delegate, the same may be inferred by necessary implication.
According to Griffith, “If the statute is so wisely phrased that two or more ‘tiers’ of sub-delegation are necessary to reduce it to specialised 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. Bareno the enabling Act empowered the President to make regulations concerning exports and provided that unless otherwise directed the functions of President should be performed by the Board of Economic Welfare.
The Board sub-delegated the power to its Executive Director who further sub-delegated to his assistant, who in turn delegated it to some officials. All the sub-delegations were held valid by the Court. On the other hand, in State v. Amir Chand, the Punjab High Court held that the power of sub-delegation cannot be inferred.
Publication of sub-delegated legislation
There arises the question of the publication of sub-delegated legislation. It may, however, be pointed out that by the decision of the Supreme Court in Narendra Kumar v. Union of India, the publication of sub-delegated legislation has been declared to be necessary to give it legal force when the Parent statute contains the formula i.e requiring the notification of rules in Gazzette.
The practice of sub-delegation has been subjected to considerable criticism by jurists. The position is well established that the maxim ‘Delegatus Non-Potest Delegare’ applies in the area of delegated legislation also and sub-delegation of power is not permissible unless that power is conferred either expressly or impliedly.