This article has been written by Khushi Gupta from the University Law College and Department of Studies in Law, Bangalore University

Table of Contents

Introduction

It is a Latin principle used in constitutional and administrative law which prohibits the transfer of delegated power. This maxim states that a person to whom a power is delegated cannot further delegate that power. This debars the principle of sub-delegation. It is merely a rule of construction of a statute. Generally, sub-delegating legislative power is not permissible but it can be permitted either when such power is expressly conferred under the statute or can be inferred by necessary implication. The idea behind this was quite logical. If one person is entrusted with some work, it has to be performed by themselves and could not be assigned to a stranger whose skills and behaviour are not known to the principal.

Taking into account, the process of law-making, if a skeleton legislation is made and the power to fill it up with major rules has been delegated, if it will be sub-delegated, the main essence of the legislation will go in vain. This is simply because human cognitive understanding is far different from each other and due to differences in the opinions and the capacity to understand, the law made in the end may not be crystallised and the intent of the legislatures may not be fulfilled as a whole.

This principle is considered a necessary corollary of the separation of powers. It maintains the integrity and accountability of the delegated powers. The separation of powers divides the functions of governance among the legislative, executive, and judicial branches, ensuring a system of checks and balances. By prohibiting further delegation, delegatus non potest delegare reinforces the idea that each branch should exercise its powers independently and be held accountable for its actions. But sometimes there can be a delegation of power to the executive as well as the judiciary to uphold the basic rights of equality and justice.

History

Understanding the historical development of the maxim is crucial for appreciating its significance in contemporary legal systems. It reflects the broader legal principle that the delegation of authority should be transparent, controlled, and subject to legal limitations to maintain accountability and the rule of law.

The roots of the maxim can be traced back to Roman law, where the principle of non-delegation was recognized. The idea was that a person who had been entrusted with a specific task or responsibility could not transfer that responsibility to someone else unless explicitly permitted.

The principle of non-delegation became a foundational concept in the common law legal tradition. It is particularly relevant in administrative law, where government agencies and officials are often delegated specific powers or responsibilities by legislation.

The maxim “Delegatus non potest delegare” has been cited and reiterated in various legal cases and treatises over the centuries. It has been applied in different contexts, such as contracts, agency relationships, and administrative law.

Legal scholars and commentators have discussed and analyzed the principle of non-delegation throughout legal history. Their writings have contributed to the understanding and application of this maxim in different legal systems.

The principle of non-delegation continues to be a significant aspect of administrative and contract law in modern legal systems. Statutes and regulations often include provisions addressing the delegation of authority and whether sub-delegation is permissible.

In administrative law, the doctrine of non-delegation is often applied to ensure that government officials and agencies do not exceed their delegated powers or transfer those powers without proper authorization.

Presence of the doctrine in India

In India, the principle is used in the Indian Contract Act, of 1872. Taking inference from Section 190 of the Indian Contract Act, which states about the agency. It expressly mentions “An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed”. However, under certain exceptional circumstances, an Agent has the power to appoint an agent and delegate his power. As S. 190 provides: An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed.

Illustration: A directs B, to sell estate by auction, and to employ an auctioneer for the purpose. B makes C, an auctioneer, to conduct the sale, C is not a sub-agent but is A‘s agent for the conduct of the sale. Thus, this sub-delegation is valid as it falls under exception.

In John Mc Cain and Co. vs Pow, it had been laid down that unless authorized by the Principal, the Agent has no right to appoint a subagent and delegate the responsibility of his powers which must be accomplished by the Agent. During this case, the claim of commission presented by the sub-agent wasn’t accepted as consistent with the contract of agency appointment of a subagent isn’t valid.

Global Analysis

United States of America

In US constitutional law the maxim has been used in two ways. First, the courts have used it as a basis for invalidating delegations of governmental power. This extreme approach has been used in extraordinary circumstances. Second, the maxim has been used as an element of statutory interpretation to narrow down constructions of statutory authority that might otherwise be derived. This is the recent approach that is carried forward in the USA. In Loving vs United States, the Court stated that Congress as a general rule must also “lay down by legislative act an intelligible principle to which the person or body authorized to is directed to conform.” The principle rule aforementioned seeks to enforce the understanding that Congress may not delegate the power to make laws more than the authority mentioned under the statute. The maxim was first cited by the Supreme Court of the United States in United States vs Sav. Bank in which the case summary reports that one of the litigants argued, “The duty imposed by statute on the commissioner cannot be delegated to a collector. Delegata potestas non potest delegari”.

Canada

The conventional view is that Canadian legislatures can delegate plenary powers. That is, legislatures are free to empower ministers and other bodies as amply as they desire to achieve their policy objectives, subject to three Constitutional Limits. First, the legislature should not abdicate its powers. Second, legislatures may not alter the distribution of legislative competence in ss. 91-92 of the Constitution Act, 1867. Third, legislatures may not delegate the power to impose taxation. The Canadian case, R. vs Armstrong clarified that a delegatee cannot sub-delegate unless the legislation explicitly allows for it. The court emphasized the importance of maintaining accountability and ensuring that those exercising delegated powers remain within the intended limits.

Ireland

Ireland follows the doctrine of Non-delegation via Article 15.2.1 of the Irish Constitution. Article 15.2.1 of the Irish Constitution states, “the sole and exclusive power of making laws” is vested in the Oireachtas and “no other legislative authority”.

United Kingdom

Subordinate legislation that enacts legislative sub-delegations typically permits the making of provisions through guidelines, decisions, or other comparatively informal documents that are typically exempt from requirements or procedures requiring parliamentary scrutiny. Exercise of it is only permitted if it does not infringe upon citizens’ rights excessively. Law that is not passed by a legislative body like the UK Parliament is known as delegated legislation, sometimes known as secondary legislation. It is made by an authorized body, a government minister, or a delegated individual using authority granted to them by a parliamentary act.

Netherlands

The Constitution of the Netherlands restricts delegated legislation to create one type of measure i.e. Criminal Penalties. Article 89(2) of the Dutch Constitution states that regulations cannot be used to create criminal penalties but may supplement criminal offences and coercive measures.

Case Laws

Democratic Bar Association vs. High Court of Judicature (2000)

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.”

Ultra Tech Cement Limited vs. The Union of India and Ors. (2014)

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.”

The State vs Kunja Behari Chandra And Ors. (1954)

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.”

Delhi Development Authority vs Central Information Commission (2010)

The Court held that the power of inquiry under Section 18, which has been given to the Central and the State Information Commissions is confined to an inquiry by the concerned Information Commission itself. There can be no delegation of this power to any other committee or person.

Central Talkies vs Dwarka Prasad (1961)

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.

Common Cause, A Registered Society vs Union of India (2018)

In this Indian case, the Supreme Court highlighted the need for guidelines when delegating powers and emphasized that the delegated authority cannot be further delegated unless expressly permitted by the legislation. The court stressed the importance of preventing excessive delegation.

King v. Burah (1877)

This case, from the Privy Council, established the principle that a legislative body cannot delegate its essential legislative functions. The court stated that while the legislature can delegate subsidiary or administrative powers, it cannot abdicate its core legislative responsibilities. This principle indirectly implies limitations on sub-delegation.

Conclusion

The doctrine of non-delegation serves as a foundational concept in administrative law, contract law, and agency relationships. It emphasizes transparency, accountability, and legal limitations on the delegation of authority. The maxim is aimed at preventing the abuse or unauthorized transfer of delegated powers and ensuring that those entrusted with responsibilities retain direct accountability for their actions. The applicability of this doctrine extends even to International Organisations because of the notion of accountability.

The power of sub-delegation can be conferred in some extraordinary circumstances, wherein the authorisation is provided in the statute itself. This change has been brought about due to the dynamic nature of the society. The major problems at the grassroots can be understood by the local authority itself. Thus, the rules made by such authority can overcome existing problems in society. Hence, the legislature can delegate powers to bring in minor changes but cannot transfer the whole power of policy formulation to some other body that is not the legislature.