Administrative Law

DELEGATUS NON-POTEST DELEGARE

A final draft submitted in partial fulfillment of the course Administrative Law during the
Academic Session 2020-21, 6th Semester

SUBMITTED BY:
NAME: Kaustuv
ROLL NO. 2021
BATCH: B.B.A. LLB
SUBMITTED TO:
Dr. Father Peter Ladis & Prof. Dr. Syed Ali Mohammad

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur, Patna

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DECLARATION
I hereby declare that the work reported in this Project Report entitled “DELEGATUS NON-
POTEST DELEGARE” submitted at CHANAKYA NATIONAL LAW UNIVERSITY, PATNA, for
the fulfillment of the B.B.A.LL.B. (Hons.) Course, is an authentic record of my work carried out
under the supervision of DR. FATHER PETER LADIS & PROF. DR. SYED ALI
MOHAMMAD.
I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my Project Report.

NAME:

SIGNATURE :

DATE :

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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ACKNOWLEDGEMENT

I would like to thank my faculty, Dr. Father Peter Ladis & Prof. Dr. Syed Ali Mohammad
whose guidance helped me a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn‟t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project.

Kaustuv

Roll no. - 2021

B.B.A. LLB.

6th semester

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Contents

1. INTRODUCTION: MEANING OF OBLIGATION .............................................................. 5

AIMS & OBJECTIVES .................................................................................................................. 6

HYPOTHESIS ................................................................................................................................ 6

RESEARCH METHODOLOGY.................................................................................................... 6

LIMITATION OF THE STUDY ................................................................................................ 7

2. Delegated Legislation .............................................................................................................. 8

Origin .......................................................................................................................................... 8

Principles of Natural Justice ...................................................................................................... 10

Case laws ................................................................................................................................... 11

3. Factors Leading to the Growth of Delegated Legislation...................................................... 13

Pressure Upon Parliamentary Time........................................................................................... 13

Technicality ............................................................................................................................... 13

Flexibility .................................................................................................................................. 13

Experimentation ........................................................................................................................ 14

Emergency................................................................................................................................. 14

Confidential Matters.................................................................................................................. 14

4. Sub-Delegation ...................................................................................................................... 15

Illustration ................................................................................................................................. 15

Objects of Sub-Delegation ........................................................................................................ 15

5. CONCLUSION ..................................................................................................................... 17

BIBLIOGRAPHY ......................................................................................................................... 18

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1. INTRODUCTION: MEANING OF OBLIGATION

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 administrative law which has grown up around the Latin maxim delegatus non. potest
delegare, 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,6 and a person serving a distress warrant.

It applies, in short, to all persons who are empowered by statute to do anything. Its most
important application, however, is to authorities which 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.

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AIMS & OBJECTIVES

The researcher through this project work aims to:

 Gain greater knowledge of the Delegatus Non-Potest Delegare.

 Find out the scope of sub- delegation.

HYPOTHESIS

The researcher is of the prior belief that

 There is a very limited scope of Sub Delegation.

RESEARCH METHODOLOGY

The researcher intends to adopt a doctrinal method of research for the purposes of this research
work. The doctrinal research methodology provides an ample scope to examine the existing
literature from both primary and non-primary sources.

SOURCES OF DATA

In order to complete the research study, the researcher will collect the material through various
primary and secondary sources of data.

PRIMARY SOURCES such as the occasional policy papers of the State, statutes, commentaries,
case-law, juristic opinions, policy formulations of various governmental bodies, the reports
published by governmental, non-governmental and international organisations.

SECONDARY SOURCES reviewing the text books, existing literature on the area, the views
and perspectives of stake holders, policy makers and all other relevant sections of the society
which includes the efforts of charitable organizations, non-governmental organizations and
philanthropists.

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LIMITATION OF THE STUDY

Since the researcher is a student of law, she has access to a limited area and knowledge. The
researcher having only a preliminary knowledge of Constitutional Law could understand the
problem clearly but was faced with constraints.

The researcher has limited time for the project. The historical need and background is also
necessary for having a bird‟s eye view of the particular topic and it gets developed only by
effective and extended reading over a long period of time.

However the researcher only has access to limited amount of work that is available in the library.
The researcher has a restricted access to information and sources for reasons beyond her control.
But the researcher will still attempt to take out the best possible work.

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2. Delegated Legislation

Origin

The maxim Delegatapotestas non potestdelegari 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.

Explanation – The maxim can also be stated as “Delegatus non potestdelegare” which means no
one to whom power is delegated cannot himself further delegate that power. In other words a
person to whom some power is delegated cannot sub-delegate that power to someone else. The
reason why this principle is followed is very simple.1

One who has the power or authority from another person to do an act must do it himself or
herself as this is a trust or confidence reposed in that person personally. It cannot be assigned to a
stranger whose ability and integrity might not be known to the principal.

In general, whenever it is intended that an agent shall have a power to delegate his authority, it
should be given to him by express terms of substitution. Thus no sub-delegation is done in a
principal-agent contract without the consent and knowledge of the principal.2

The principle laid down in the maxim is followed in constitutional and administrative law, where
a delegated power cannot be sub-delegated unless and until it is provided for by law or the
person delegating the authority permits sub-delegation of authority.

1
Chicago 17th ed. John Willis, "Delegatus Non Potest Delegare," Canadian Bar Review 21, no. 4 (April 1943): 257-
264
2
McGill Guide 9th ed. John Willis, "Delegatus Non Potest Delegare" (1943) 21:4 Can B Rev 257.

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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.

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.3 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 4. 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

3
ALWD 6th ed. Willis, J. ., Delegatus non potest delegare, 21(4) Can. B. Rev. 257 (1943).

4
Bluebook 21st ed. John Willis, Delegatus Non Potest Delegare, 21 CAN. B. REV. 257 (1943).

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sense, it means the output of the exercise of that power. 5 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.

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.

5
APA 7th ed. Willis, J. (1943). Delegatus non potest delegare. Canadian Bar Review, 21(4), 257-264.

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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.

Case laws

In the case of Field v. Clark6, the Supreme Court while upholding the constitutionality of the
provisions of the McKinley Tariff, said, “The Congress cannot delegate legislative power to the
President is a principle universally recognised as vital to the integrity and maintenance of the
system of government ordained by the Constitution. The Act in question does not invest the
President with the power of legislation. He was the mere agent of the law making department to
ascertain and declare the event upon which its expressed will was to take effect.” This case thus
established the principle laid under the maxim, delegatus non potestdelegare.

In the case of United States v. Sav, Bank7, the court held that the duty imposed by statute on the
commissioner cannot be delegated to a collector.

In Alexander v. Alexander8, the Court stated, “If there is a power to A, of personal trust ir
confidence, to exercise his judgment and discretion. A cannot say this money shall be appointed
by the discretion of B for delegatus non potestdelegare.”

A.K. Roy and anr. v. State of Punjab and anr.9 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 potestdelegare. 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.

6
143 U.S. 649, 12 Sup. Ct. 495 (1892)
7
104 US 728 (1881)
8
2 Ves. 640, 643 (Ch. 1755)
9
1986 AIR 2160, 1986 SCR (3) 961

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The maxim delegatus non potestdelegare 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.

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3. 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

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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.

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4. 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. 10 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 officers11, 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-

10
MLA 8th ed. Willis, John. "Delegatus Non Potest Delegare." Canadian Bar Review, vol. 21, no. 4, April 1943, p.
257-264. HeinOnline.
11
OSCOLA 4th ed. John Willis, 'Delegatus Non Potest Delegare' (1943) 21 Can B Rev 257

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 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 authority12 which the legislature delegates to the Executive.

12
AGLC 4th ed. John Willis, 'Delegatus Non Potest Delegare' (1943) 21(4) Canadian Bar Review 257.

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5. 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.

The maxim delegatus non potest delegare enunciates a rule of construction for interpreting
statutes which confer upon governmental authorities the power to decide questions affecting the
rights of the public; it applies to all types of authority, central, local or professional, and all
typesof discretion, legislative, judicial, quasi-judicial and administrative. The rule of construction
prescribes that to any statute which confers a discretion upon a named authority, the word
"personally" should be added after the name of the authority.

Where an authority, although entrusting to its employees the task of exercising the discretion in
the first instance. retains nonetheless such a substantial degree of control over the actual exercise
by them of the discretion so entrusted that it can be said to direct its own mind to it, the authority
is exercising the discretion personally and there is no delegation.

The application of the maxim delegatus non potet delegare to modern governmental agencies the
Courts have in most cases preferred to depart from the literal. construction of the words of the
statute which would require them to read in the word "personally" and to adopt such a
construction as will best accord with the facts of modern government which, being carried on in
theory by elected representatives but in practice by civil servants or local government officers,
undoubtedly requires them to read in the words "or any person authorized by it.

Where, however the control exercised by the authority over the actual exercise of the discretion
by its employees is absent or falls short of being substantial the authority does not exercise the
discretion personally and is delegating its powers; it then becomes necessary to turn back to the
statute and inquire whether its language, scope or object is such as to displace the prima facie
rule of construction.

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BIBLIOGRAPHY

 Bluebook 21st ed. John Willis, Delegatus Non Potest Delegare, 21 CAN. B. REV.
257 (1943).

 ALWD 6th ed. Willis, J. ., Delegatus non potest delegare, 21(4) Can. B. Rev. 257
(1943).

 APA 7th ed. Willis, J. (1943). Delegatus non potest delegare. Canadian Bar Review,
21(4), 257-264.

 Chicago 17th ed. John Willis, "Delegatus Non Potest Delegare," Canadian Bar
Review 21, no. 4 (April 1943): 257-264

 McGill Guide 9th ed. John Willis, "Delegatus Non Potest Delegare" (1943) 21:4 Can
B Rev 257.

 AGLC 4th ed. John Willis, 'Delegatus Non Potest Delegare' (1943) 21(4) Canadian
Bar Review 257.

 MLA 8th ed. Willis, John. "Delegatus Non Potest Delegare." Canadian Bar Review,
vol. 21, no. 4, April 1943, p. 257-264. HeinOnline.

 OSCOLA 4th ed. John Willis, 'Delegatus Non Potest Delegare' (1943) 21 Can B Rev
257

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