Theoretical overview
Sometimes the rule making authority delegates to itself, or to some other subordinate authority, a further power to issue rules, such exercise of rule making power is known as sub delegation. Rule making authority cannot delegate its power unless the parent act allows it to do so. In other words, there is a parent-children like relationship between parent act and sub delegation as sub delegation can only be done when the parent act is enabling it to do so. It is also to be noted that rule making power cannot be delegated unless the parent act authorizes it, Yet the administrative power can be delegated.
The maxim delegatus non potest delegare comes into play which means that a delegate cannot further delegate is not attracted in case of delegation by the legislature, but certainly applies in case of sub delegation. Therefore, the basic principle behind the maxim is that a discretion conferred by the statute on an authority must be exercised by that authority alone unless a contrary intention appears from the language, scope, or the object of the statute.
Criticism
- It makes parliamentary control illusionary
- Postpones the rule making
- Makes publication of rules difficult
- Sub-delegation in very wide language is improper
Important case laws
- A.K Roy vs State of Punjab– in this case the power to initiate the prosecution for the offense under section 2(i) of the prevention of food adulteration act, 1954 had been given to the state government. The act had not authorized sub-delegation of power. Nevertheless, under rule 3 of the prevention of food adulteration punjab) rules,1958, the power of prosecution was delegated to the food inspector. The court held that sub-delegation was ultra vires the parent act.
- M. Chandru vs Chennai Metropolitan Development Authority(2009).- If the administrative authority which has been delegated the power to impose and collect tax, delegates only the collection part to some other agency, it will not be a case of sub delegation.
Important legal maxims
- Delegatus non potest delegare– the power to make laws cannot be delegated by the legislature to any other authority.
Points to remember
- Rule making authority cannot delegates its power unless the parent act allows it
- there is a parent-children like relationship between parent act and sub delegation
- the administrative power can be delegated.
- delegate cannot further delegate is not attracted in case of delegation by the legislature, but certainly applies in case of sub delegation
