DELEGATUS NON POTEST DELEGARE
In recent years, a very conspicuous trend that can be seen is that apart from the
purely administrative function, the executive performs legislative functions as well.
Because of various reasons, there is a fast development of authoritative enactment.
A pattern especially in vogue today in every majority rule nation is that a decent
arrangement of enactment happens in government division outside the House of
Legislature. This sort of action is really called ‘Delegated Legislation’.
By and large, what happens is that the assembly authorizes a law covering just the
general standards and arrangements identifying with the topic being referred to and
gives rule-production control on the legislature or some other regulatory
organization. This is so in light of the fact that the immediate enactment of the
Parliament isn’t finished. The Executive is offered the capacity to enhance the laws
made by the Legislature.
SUB-DELEGATION
When a statute confers legislative powers on an administrative authority and that
authority further delegates those powers to another subordinate authority or
agency, it is called sub-delegation. Thus, what happens in sub-delegation is that a
delegate further delegates. This process of sub-delegation may go through one stage
to another stage. If the enabling Act is called the ‘Parent’ then the delegated and the
sub-delegated act is called the Children.
DELEGATUS NON-POTEST DELEGARE
The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule of law. It
merely states a rule of construction of a statute. Generally, sub-delegation of
legislative power is impermissible, yet it can be permitted either when such power is
expressly conferred under the statute or can be inferred by necessary implication.
This is so because there is a well-established principle that a sub-delegate cannot act
beyond the scope of power delegated to him. "One to whom a power is delegated,
cannot himself further delegate that power."
Thus, a person to whom an authority or decision-making power has been delegated
to from a higher source, cannot, in turn, delegate again to another, unless the
original delegation explicitly authorized it.
The maxim is a principle in the constitutional and administrative law which means
that a person to whom an authority or decision-making power has been delegated to
from a higher source, cannot, in turn, delegate again to another unless the original
delegation explicitly authorized it. In simple terms, a delegate cannot re-delegate.
The maxim is derived from and is most frequently applied in matters relating to
principal and agent but is not confined thereto. In general, the maxim deals with
delegation.
Illustration
An auditor who has been appointed to audit the accounts of a company
cannot delegate the task to another unless expressly allowed to do so. If
express authorization has not been granted the auditor will have acted ultra
vires.
An attorney given legal authority in a power of attorney cannot, of their own
volition, delegate the exercise of that authority without the consent of the
person who granted the power of attorney.
Case Laws
In Democratic Bar Association vs. High Court of Judicature 1, the Allahabad High
Court held that “the maxim delegatus non potest delegare does not enunciate a rule
that knows no exception; it is a rule of construction to the effect that *a discretion
conferred by a statute is prima facie intended to be exercised by the authority on
which the statute has conferred it and by no other authority, but this intention
maybe negative by any contrary indications found in the language, scope or object of
the statute.”
1
2000 (3) AWC 2383 A
In Ultra Tech Cement Limited vs. The Union of India and Ors. 2, the Kerala High Court
held that “Sub-delegation implies a further delegation of the same power, which was
originally delegated by the legislature. The governing principle is that legislative
powers must be exercised by the delegatee himself and by none else. A delegatee
cannot further delegate his power unless the parent law permits it to do so. In the
above context, the doctrine delegatus non potest delegare, that is, a delegatee
cannot further delegate, comes into play. Thus, if a law confers power on the Central
Government to make rules, it cannot further delegate that power to any other
officer, unless the parent law itself gives authority to the Government to that effect.”
A.K. Roy and anr. v. State of Punjab and anr. 3, was the first case in India which
established the principle that a delegated authority cannot again be delegated as laid
down by the maxim delegatus non potest delegare. In this case the validity of sub-
delegation of power under the Prevention of Food Adulteration Act, 1954 was
questioned. Section 24(2)(e) of the Act enables the State Government to frame a rule
for delegation of powers and functions under the Act, but it clearly does not envisage
any sub-delegation. The maxim delegatus non potest delegare merely indicates that
this is not normally allowable but legislature can always provide for sub-delegation of
powers. Thus, in other words the principle laid down by the maxim is a general rule
but legislature can or the authority making such law can provide for an exception by
expressly allowing sub-delegation of powers.
In The State vs Kunja Behari Chandra And Ors. 4, the Patna High Court while referring
to the above maxim held that “Because of the legislative power of the government is
vested exclusively in the legislature, the general rule enunciated by Cooley is that the
legislature cannot surrender or abdicate such power and any attempt to do so will be
unconstitutional and void. There is also the well-known maxim delegatus non potest
delegare, which means that the power to make laws cannot be delegated by the
legislature to any other authority.”
2
Civil Writ Petition No. 9480/2019
3
1986 SCR (3) 961
4
1954 CriLJ 1187
In Allingham v. Minister of Agriculture5, under the Defence Regulations, 1939, the
Committee was authorised by the Minister of Agriculture “to give such directions
with respect to the cultivation, management or use of land for agricultural purposes
as he thinks necessary.” The committee sub-delegated its power to its Subordinate
Officer, who issued a direction, which was challenged. Holding the direction ultra
vires, the Court ruled that the sub-delegation of power by the committee was not
permissible.
In Central Talkies v. Dwarka Prasad 6, under the U.P. Control of Rent and Eviction
Act, 1947, it was provided that no suit shall be filed for the eviction of a tenant
without the permission of either a District Magistrate or any Officer authorised by
him to perform any of his functions under the Act. The Additional Magistrate to
whom the powers were delegated made an order granting permission.
According to Griffith, “If the statute is so wisely phrased that two or more ‘tiers’ of
sub-delegation are necessary to reduce it to specialised rules on which action can be
based, then it may be that the Courts will imply the power to make the necessary
sub-delegated legislation.” In States v. Bareno7 the enabling Act empowered the
President to make regulations concerning exports and provided that unless
otherwise directed the functions of President should be performed by the Board of
Economic Welfare.
The Board sub-delegated the power to its Executive Director who further sub-
delegated to his assistant, who in turn delegated it to some officials. All the sub-
delegations were held valid by the Court. On the other hand, in State v. Amir Chand8,
the Punjab High Court held that the power of sub-delegation cannot be inferred.
The practice of sub-delegation has been subjected to considerable criticism by jurists.
The position is well established that the maxim ‘Delegatus Non Potest Delegare’
applies in the area of delegated legislation also and sub-delegation of power is not
permissible unless that power is conferred either expressly or impliedly.
5
1948 (1) All. E.R 780
6
1961 SCR (3) 495
7
739 F. Supp. 772 (E.D.N.Y. 1990)
8
AIR 1953 P H 1
