UNIT-II ADMINISTRATIVE LAW BA.LL.

B (VI) SEM

DELEGATUS NON-POTEST DELEGARE

The maxim Delegatus Non-Potest Delegare is a principle of constitutional and administrative law
with the Latin meaning a delegated authority cannot again be delegated. It has its origin in the
Catholic Canon law but it was first articulated in Canada in 1943 by John Willis in the Canadian
Bar Review. This principle is very well acknowledged in the United States, United Kingdom and
India.
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.
The doctrine mean that a delegated cannot further delegate its power to any other agency i.e.
(one cannot lawfully appoint another to perform the duties of agency). The doctrine is a
necessary corollary of the doctrine of separation of power (i.e. one organ of the Government
cannot encroach upon the powers of another). Therefore legislative powers cannot be delegated.
The administrative law which has grown up around the Latin maxim delegates non potest
delegate, a delegate may not re-delegate, deals with the extent to which an authority may permit
another to exercise a discretion entrusted by a statute to itself. The maxim is derived from and is
most frequently applied in matters relating to principal and agent but it is not confined thereto;' it
is basic in administrative law, the law relating to discretions conferred by statute. The maxim
does not state a rule of law; it is “at most a rule of construction” and in applying it to a statute
“there, of course, must be a consideration of the language of the whole enactment and of its
purposes and objects”. As a rule of construction for a section in the statute which confers a
discretion on an authority named therein, the maxim applies to an authority empowered to lay
down general rules (legislative power) to an authority empowered to decide a particular issue
affecting the rights of an individual, be it a magistrate, a municipal authority, a wartime
controller or a minister of the Crown (judicial and quasi-judicial power) to an authority
empowered to determine whether legal proceedings shall or shall not be initiated against an
individual and even to an authority empowered to do an act involving the exercise of practically
no discretion, such as a utility company operating under a charter, and a person serving a distress
warrant. It applies, in short, to all persons who are empowered by statute to do anything. It‟s
most important application, however, is to authorities who are by statute empowered to exercise
discretions affecting the rights and interests of the public, and it is this aspect of it that will be
dealt with here.
The maxim deals with “delegation” by an authority of its statutory discretion. What is
“delegation”? “Delegation, as the word is generally used, does not imply a parting with
powers by the person who grants the delegation, but points rather to the conferring of an
authority to do things which otherwise that person would have to do himself.... it is never used
by legal writers, so far as I am aware, as implying that the delegating person parts with this
power in such a way as to denude himself of his rights.” The fact that the authority named in the
statute has and retains a general control over the activities of the person to whom it has entrusted
the exercise of its statutory discretion does not, therefore, save its act of so entrusting to him the
dis- cretion from being “delegation” and so falling within the ambit of the maxim. If,
however, the authority exercises such a substantial degree of control over the actual exercises of
the discretion so entrusted that it can be said to direct its own mind to it, there is in law no
“delegation” and the maxim does not apply
OBJECTS OF SUB-DELEGATION
The need of sub-delegation is sought to be supported on the basis of the following factors-
 Power of delegation necessarily carries with it the power of further delegation and hence, the
delegate has power to further delegate; and
 Sub-delegation is ancillary to delegated legislation, and objection to such process is likely to
subvert the authority which the legislature delegates to the Executive.
Express Power
There is no difficulty as regards the validity of sub-delegation where the statute itself authorises
the administrative agency to sub-delegate its powers because such a sub-delegation is within the
terms of the statute itself.
Thus in Central Talkies v. Dwarka Prasad, 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.
The Supreme Court held the order valid. But in Allingham v. Minister of Agriculture, 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.
Implied Power
The point is not clear as to what would be the position if there is no specific or express provision
in the statute for sub-delegation of power. In Jackson v. Butterworth, it was held that the method
of sub-delegating power to issue circulars to local authorities was convenient and desirable but
the power to sub-delegate was absent. However, the other view is that although there is no
provision enabling Act authorising sub-delegation of power by the delegate, the same may be
inferred by necessary implication.
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. Bareno 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 Chand, the Punjab High Court held that the power
of sub-delegation cannot be inferred.
PUBLICATION OF SUB-DELEGATED LEGISLATION
There arises the question of the publication of sub-delegated legislation. It may, however, be
pointed out that by the decision of the Supreme Court in Narendra Kumar v. Union of India, the
publication of sub-delegated legislation has been declared to be necessary to give it legal force
when the Parent statute contains the formula i.e requiring the notification of rules in Gazzette.