Sub-Delegation of Rule-Making Power

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.