SUB-DELEGATION

 SUB-DELEGATION

                


When a statute confers some legislative powers on an executive authority and the latter further delegates those powers to another subordinate authority or agency, it is called ‘sub-delegation.’Thus, in sub-delegation, a delegate delegates further. This process of sub-delegation may go through many stages.

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 (sub-sub-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).


Object
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.
3. 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.


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, 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 functions under the Act. An order granting permission by the Addl. District Magistrate to whom the powers were delegated was held Valid. 


Implied Power
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, All ER 1948, Scott, L.J. held that the method (of sub-delegating power to issue circulars to local authorities) was convenient and desirable, but the power to subdelegate was, unfortunately, absent. The other view, however, is that even if there is no provision in the parent Act about sub-delegation of power by the delegate, the same may be inferred from necessary implication. 


Criticisms
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. The author 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.”