Sub-Delegation of Rule-Making Power
Chapter
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 417 to 418 of 430
In one line
A delegate who has been given the power to make rules cannot hand that power to somebody else unless the Act allows it.
In the wording a student can write in an exam: sub-delegation of a rule-making power is permissible only where the parent Act authorises it expressly or by necessary implication; the maxim delegatus non potest delegare applies with particular force to legislative power, because the legislature has chosen the body whose judgment it wants, and a rule which purports to authorise a further delegation not contemplated by the Act is ultra vires.
Why the rule is stricter here than for a discretion
Because the legislature has already made one departure from the ordinary constitutional position by delegating legislative power at all. It chose a particular delegate, often for its accountability or its expertise, and the choice is part of the safeguard. A second delegation removes the safeguard, and each further step takes the rule further from anybody the electorate can reach.
The three levels
Delegation. The Act empowers the Government to make rules.
Sub-delegation. A rule made by the Government empowers a board or an officer to make further rules, or to prescribe something the rules leave open.
Sub-sub-delegation. The board's rule empowers an officer to prescribe. The further the chain runs, the less likely a court is to find authority for it.
When sub-delegation is lawful
Where the Act says so. Many Acts provide that rules may empower a stated authority to make regulations.
Where necessary implication compels it. Where the Act contemplates technical standards to be fixed by a specialised body, and no other reading works.
Where what is delegated is not legislative at all. A rule which leaves the form of an application to be prescribed by a department is delegating administration, not law.
Where the parent rule prescribes the standard. If the rule fixes the policy and the sub-delegate only applies it, the objection loses most of its force, because the same essential legislative function test in [The Essential Legislative Function: In re Delhi Laws Act] answers it.
The Henry VIII problem in miniature
A sub-delegation which allows the sub-delegate to amend the parent rules, or to exempt persons from them, raises the same objection as a Henry VIII clause, and is dealt with in [The Henry VIII Clause].
The publication problem
A sub-delegated instrument is often not published at all. It appears as a circular, an order or an office memorandum, and the persons bound by it never see it. Harla v. State of Rajasthan, AIR 1951 SC 467, and Narendra Kumar v. Union of India, AIR 1960 SC 430, are therefore usually available alongside the vires objection, and in practice they are the easier argument.
Sub-Delegation of Rule-Making Power
A worked example
An Act empowers the State Government to make rules for the regulation of private nursing homes. A rule provides that the Director of Health Services may, by order, specify the standards of equipment, staffing and hygiene which a nursing home must maintain, and that he may exempt any nursing home from any standard. The Director issues an order fixing standards, and exempts three nursing homes by a letter.
The delegation of the standards is arguably lawful, because fixing technical standards is a matter the Act may be taken to have contemplated being left to a specialised officer, and the rule confines him to the subject of equipment, staffing and hygiene. The power to exempt is not: it lets the Director decide to whom the law applies, which is policy, and the Act nowhere authorises a sub-delegation of that kind. The exemption letter is also unpublished, so Harla applies to it independently.
What this does NOT mean
It does not mean every rule must be self-contained. Rules routinely leave forms, fees and technical matters to be prescribed.
It does not mean a sub-delegated instrument is not law. If it is authorised, it is law, and it must be published like any other.
It does not mean the chain can never be long. A statute may authorise several levels, and some regulatory statutes do.
Quick revision
Delegatus non potest delegare applies with particular force to rule-making, because the legislature chose its delegate. Sub-delegation is lawful where the Act authorises it expressly or by necessary implication, where what is passed on is administrative rather than legislative, and where the parent rule fixes the policy and leaves only application. It is unlawful where it lets the sub-delegate decide to whom or whether the law applies, which is the essential legislative function. Sub-delegated instruments are frequently unpublished, so Harla and Narendra Kumar are usually available alongside the vires argument.
Test yourself
1. Why is the rule stricter for legislative power than for a discretion? Because the legislature has already made one departure by delegating legislative power at all, and its choice of delegate is part of the safeguard; a further delegation removes it.
2. When is sub-delegation lawful? Where the Act authorises it expressly or by necessary implication, where what is passed on is administrative rather than legislative, and where the parent rule retains the policy and leaves only its application.
3. What is the practical second argument against a sub-delegated instrument? That it was never published, so on Harla it is not law, and where the Act requires Gazette publication, on Narendra Kumar it is of no effect.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.