Delegatus Non-Potest Delegare -

Introduction

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. This article will go
over what this trend is about, what makes it so popular and the limitations on the exercise of this
power.

Delegated Legislation

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.

The outcome is that the method of Delegated Legislation is so generally utilized in current
occasions as a procedure of government that there is no rule gone by the Legislature which
does not Delegate some intensity of enactment to the Executive. It is additionally said that
Delegated Legislation is multitudinous to the point that any rule won’t just be deficient yet, in
addition, be deluding except if it be perused alongside the appointed enactment which
enhances and changes it.

Delegated Legislation is used in two senses. In one sense Delegated Legislation refers to the
exercise of power of rule-making delegated to the Executive by the Legislature. In the other
sense, it means the output of the exercise of that power. In the first sense, it means that the
authority making the legislation is subordinate to the legislature.

The legislative powers are exercised by an authority other than the legislature in the exercise of
powers delegated or conferred on them by the legislature itself. This is also known as
“Subordinate Legislation” because the powers of the authority which makes it is limited by the
statute which conferred power and consequently it is valid if at all it is kept within those limits.

In the second sense, Delegated Legislation refers to all law-making which is generally
expressed as rules, regulations, bye-laws, orders, schemes, directions, circulars or notifications
etc.
Generally, Delegated Legislation means the law made by the Executive under the powers
delegated to it by the Legislature.

Delegated Legislation as opposed to Administrative Power

Publication
If an order is legislative in character, it has to be published in a certain manner, but publication is
not necessary if it is of an administrative nature. An administrative order refers to a particular
individual and in this respect, it is required to be served only on the individual concerned.

Principles of Natural Justice

The Principles of Natural Justice entails 3 principles:

Rule Against Bias

Rules for Fair Hearing
Reasoned Decisions or Speaking Order
In the case of adjudication, the administration is required to follow the principles of natural
justice, while in the case of legislation no such requirement is necessary.

Grounds of Judicial Review

Administrative action may be challenged on the ground of mala fides but it is highly unlikely for
such a challenge to prevail in case of delegated legislation.

Duty to Give Reasons

The requirement of duty to give reasons applies to administrative orders but not to legislative
orders.

Factors Leading to the Growth of Delegated Legislation

Pressure Upon Parliamentary Time

As there is a marvellous increment in the functions of the state, the main part of enactment is
great to the point that it isn’t feasible for the council to dedicate adequate time to examine every
one of the issues in detail. Accordingly, the governing body passes skeleton enactment
containing general approach and enables the executive to fill in the subtleties in this way giving
fragile living creature and blood to the skeleton with the goal that it might live by making vital
guidelines, guidelines, bye-laws and so forth.

Technicality

Sometimes the topic of enactment is of a specialized sort and requires meeting of specialists.
Individuals from Parliament might be best legislators however they are not specialists to
manage very specialized issues which are required to be taken care of by specialists. In such
cases, the administrative power might be appointed to specialists to manage the specialized
issues. Enactment concerning nuclear vitality, atomic vitality, gas, medications or power might
be cited as delineations of such details. Some things are best handled by people who have
great experience in their respective domains, not always can our politicians think like people
who have been committed to their craft for a really long time.

Flexibility

Parliament does not work constantly. At the season of passing any administrative establishment,
it is preposterous to expect to anticipate every one of the possibilities beforehand. In this
manner, control is essentially required to be given to the Executive to meet the unanticipated
possibilities. In this manner, control is fundamentally required to be given to the Executive to
meet the unanticipated possibilities or to modify new conditions emerging often. While
parliamentary procedure includes delays, assigned enactment offers quick apparatus for
correction. Police guidelines and certain financial guidelines identifying with bank rate, imports
and fares, outside trade and so on are cases of such circumstances.

Experimentation

Ordinary legislative process suffers from the limitation of lack of viability and experimentation.
Delegated Legislation enables the executive to experiment. The method permits rapid utilisation
of experience and implementation of necessary changes in the application of the provisions in
the light of such experience. If the rules and regulations are found to be satisfactory, they can be
implemented successfully. On the other hand if they are found to be defective, the defects can
be cured immediately.

Emergency

In the midst of crisis, fast activity is required to be taken. A crisis may ascend by virtue of war,
rebellion, floods, pandemics, financial downturn and preferences. Administrative procedure isn’t
prepared to accommodate earnest answer for meeting the circumstance. It is, along these lines,
that the official must have a control that might be utilized in a flash. Appointed Legislation is the
main helpful cure.

Confidential Matters

In some situations, the public interest demands that the law must not be known to anybody until
it comes into operation. Rationing schemes or imposition of import duty or exchange control are
such matters.

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.

Illustration

A good illustration of the process of sub-delegation is provided by the Essential Commodities

Act, 1955. Section 3 of the Act confers rule-making power on the Central Government. This can
be called as the first stage of Delegation. Under Section 5, the Central Government is
empowered to delegate powers to its officers, the State Governments and their officers.
Frequently under this provision, the powers are delegated to State Governments.

This may be regarded as the second stage of Delegation. When the power is further
sub-delegated by the State Government to their officers, it may be characterised as the third
stage of Delegation. The working of the process can be seen in the context of the Cotton
Control Order, 1955, The order is made by the Central Government under Section 3 of the Act
(this can be called the first stage of delegation).

Under the Order, the functions and powers are conferred on the Textile Commissioner (this can
be called the second stage of delegation). Under clause 10, the Textile Commissioner is
empowered to authorise any officer to exercise on his behalf all or any of his functions and
powers under the Order (third stage of Delegation).

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.
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.

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.
Conclusion
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.