DELEGATION AND SUB DELEGATION OF ADMINISTRATIVE POWERS
DELEGATION AND SUB-DELEGATION OF ADMINISTRATIVE POWERS
Discretionary power is necessary for efficient and effective governance, and to cater to emergency needs of society and to facilitate the executive. Clariant international limited v. SEBI laid down the parameters taken into consideration before exercise of discretionary power. Discretionary has to be exercised in line of the purpose of the statute, the object sought to achieve and the reasons for granting such power. This power has to be exercised judicially and strictly. The discretion so exercised should be reasonable as it is subjected to appeal as well as judicial review. Administrative actions of discretionary power can be challenged in two cases – failure to exercise or there is misuse of such power. The legislation can repeal/ amend/ grant discretionary powers. Legislature is not empowered to delegate any essential legislative or primary legislative function. Unguided legislation ought not to be delegated. It is a general principle that legislative powers shouldn’t be delegated but sub-delegation would only be valid if parental statute expressly or impliedly for it. Delegation has to be limited and controlled.
Administrative discretion cannot be compelled to be exercised in a specific manner such as ordering demolition of a structure which is at the discretion of the administrative agencies under Section 351 as in case of Muni Suvrat-Swami Jain Sangh v Arun Nathuram Gaikwad.
In Bangalore Medical Trust , discretionary power was misused and a site reserved for amenity converted as a civic amenity. Misuse of discretion is fatal. Legal exercise of discretion is where one examines the fact, is cognisant of law and decides objectively and rationally. Even when the legislation doesn’t specify the rules and regulations, still the authorities can’t act arbitrarily or capriciously.
Green light theory empowers administrative authorities to perform their functions with the help of few tools. One such tool is administrative discretion. In Sant Raj v OP Singla the court defined the nature and scope of discretionary power Whoever has discretionary power is bound by reason and law. Authority vested with such power has to act in accordance to reason and not fanciful, arbitrarily and vague.
In Delhi Laws act, the court opined that the legislative wing of government could delegate their legislative power if they face multitudinous problems while framing comprehensive legislation. This case opined on two things, first it provided legitimacy that the legislature could delegate its functions and second it delimited the scope of delegated legislation(DL).
2. Legislature has to ensure that while delegating such legislative power to any other agency, that agency should function as subordinate authority and not parallel to it.
3. A Delegate is not permitted to review or revise his delegate’s order.
4. The enabling statute under which executive authority is given legislative powers should not be unconstitutional.
Keshavlal Khemchand and Sons Pvt Ltd v UOI , the court held that essentials legislative function do not have any scope of DL, but still this position requires more detailed examination A case where the parental statute clearly mentions about delegation of legislative powers, such action is permissible. It also depends on the nature of the body to whom the power is being delegated. There has to be few controlling mechanisms in the parental statute as delegation has to be limited and controlled.
In Angad das v UOI petitioner was served with notice to explain why the date of birth provided at the time of appointment was not correct. He was compelled to retire. He made an ‘application of request’ to DIG. DIG changed it to letter to appeal and terminated him without any sort of pensionary differences. The court observed that authority (DIG) can’t create discretionary power when it is not there in the enabling act.
In Wednesbury corp. court of appeal, there was sub-delegation of discretionary power which held to be illegal .Licensing officer instead of taking action himself transferred the application to higher authority (director) and then it was rejected and considered to be illegal. The court laid down three principles that Admin authorities are required to consider all pertinent material facts , ignore irrelevant facts and exercise discretion reasonably.
John, Teacher’s Training Institution v. Regional Director it was held that power to make such sub-delegation is authorized from the parental statute and it is fundamental that the person on whom such power has been delegated acts in accordance with the authority conferred by the statute.
Sub –delegation of power could only be possible only if
1. Only if enabling provision provides for it
2. As a general rule sub-delegation of power is illegal, because if power is vested in hands of A it can’t be sub-delegated to B, it would be considered as illegal.
3. In case of Quasi-Delegation administrative actions, there is no scope of sub-delegation of powers under section 19 of administrative tribunal act.
4. In RTI cases CIC has responsibility to consider or reject applications through application, this can’t be sub-delegated
· Administrative powers can be delegated. The essential commodity act provides for such sub-delegation, where an administrative body sub-delegates its function to the Food inspector. Administrative discretion can’t be further delegated.
· There could be sub-delegation of legislative powers only in exceptional circumstances. It is a general principle that legislative powers shouldn’t be delegated but sub-delegation would only be valid if parental statute expressly or impliedly for it.
· Sub-delegate must act in accordance with the power delegated—under section 5 of The Essential Commodities Act , the central government can sub-delegate the power to the state government to frame rules subject to its prior approval.
· Unguided legislative powers shouldn’t be sub-delegated
In the State of Punjab v Harikrishna Sharma, it was held that discretionary power can’t be further delegated and has to be exercised on whom it is entrusted. Surrendering discretionary power to superior authority is illegal.
In AK Roy v State of Punjab , section 20 (1) of food adulteration act states that power to initiate prosecution would be done by state or central government or any person authorised by the government. The court held that this section allows sub-delegation of power by state government but it doesn’t permit the sub-delegation by a sub-delegate of the government.
Hence union governments can further delegate certain powers to the state government with few conditions as discussed above.
 Suvrat-Swami Jain Sangh v Arun Nathuram Gaikwad SLP civil no. 9049 of 2006
 1991 AIR 1902 1991 SCR (3) 102
 Sant Raj v OP Singla 1985 AIR 617, 1985 SCR (3) 623
 1951 AIR 332, 1951 SCR 747
 Keshavlal Khemchand and Sons Pvt Ltd v UOI 2004 4 SCC 311
 Angad das v UOI CIVIL APPEAL NOS. 1429-1430 OF 2010
 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223
John, Teacher’s Training Institution v. Regional Director [(2003) 3 SCC 321 : JT 2003 (2) SC 35]  State of Punjab v Harikrishna Sharma 1966 AIR 1081 1966 SCR (2) 982
 AK Roy v State of Punjab 1986 AIR 2160 1986 SCR (3) 961