LEGAL MAXIM – DELEGATUS NON-POTEST DELEGARE DELEGATED LEGISLATION

MEANING OF THE LEGAL MAXIM ‘DELEGATUS NON-POTEST DELEGARE’:

The Latin maxim means that a person to whom an authority or power of decision making has been delegated by a higher authority cannot further delegate the same power to any other person unless so provided in the original delegation.

MEANING OF DELEGATED LEGISLATION:

Delegated legislation means the law made by the Executive under the powers delegated to it by the Legislature. Delegated Legislation refers to making the laws expressed as rules, regulations, bye-laws, directions, orders, ordinances, schemes, circulars, notifications, etc.

Delegated Legislation exists only under the Statute that enables the enactment of the delegated legislation. In case of any contradiction between the delegated legislation and the Statute that enabled it the Statute will prevail. It is assumed that the delegated legislation is not ultra-vires the Act enabling it. If the delegated legislation contradicts the substantive provisions and the mandatory procedure of the enabling Act then such delegation can be declared null and void. The person to whom the power is delegated has to act as per the provisions and procedures are given in the Act.

Thus, when an Act confers the power to a particular authority then only that authority should exercise that power and no other authority can use that power.

IMPORTANCE OF DELEGATED LEGISLATION:

Delegated Legislation is required due to the following reasons-

  1. Reduces the burden of the Parliament-

As the functions of the State have increased manifold the Parliament that makes the laws does not have the time to examine and discuss every minute detail.  So, the Parliament passes the skeleton enactment and enables the Executive to fill in all the details on the basis of various guidelines, rules, regulations, bye-laws made by the Parliament itself.

  • Technical expertise– Some enactments made by the Parliament are of technical nature thereby requiring technical experts or specialists. The legislators do not have the expertise or special knowledge to deal with technical issues. In such cases specialists or technical experts  are appointed who have experience in their respective domains to manage such technical issues.
  • Flexibility-The Parliament does not work continuously. While making the laws we cannot expect law makers to anticipate every possibility. So it is very important to give power and control to the Executive to meet and decide upon any unexpected possibility. If the enactment of a law is left to the Parliament then it will result in procedural delays. Thus, when the power is delegated to the Executive it provides quick actions to deal with any unexpected possibility.
  • Allows Experimentation– The ordinary parliamentary procedures lack viability and experimentation. The delegated legislation allows the Executive to experiment on the basis of its experience and make necessary changes required for the implementation or the execution. If the experiment is found to be successful then it can be implemented and if it is found to be defective then it can be immediately corrected.
  • Emergency– In cases of emergency such as war, floods, pandemic, financial crisis immidiate action is required. However the Parliament follows its long procedures resulting in delay. In such cases the Executive authority to whom the power is delegated can act immediately as per the need of the hour.  Delegated legislation can deal with an emergency without waiting for the Parliament to pass an act to resolve the emergency situation.

SUB-DELEGATION:

When an Act or a Statute confers legislative powers on a particular administrative authority and that authorized person further delegates the powers given to him to some other subordinate authority or agency then it is known as Sub-Delegation. Thus, a delegate further delegates its power.

The maxim ‘Delegatus non-potest delegare’ emphasizes the principle that sub-delegation of legislative power is impermissible unless this is expressly conferred by the Statute or can be inferred by necessary implication. This maxim works on the established principle that the authority to whom the power is delegated cannot act beyond the power given to him.

CASE-LAWS:

ULTRA-TECH CEMENT LIMITED v. THE UNION OF INDIA AND OTHERS-

In this case, the Kerela High Court held that sub-delegation implies a further delegation of the same power delegated by the legislature.  Here, the established principle that the delegated legislative power must be exercised by the delegate himself and not by any other authority came into play. A delegate cannot further delegate its power to any subordinate authority unless it is so expressly or impliedly provided by the enabling Statute.  Thus, in the instant case the doctrine ‘Delegatus non-potest delegare’ played a vital role.  If a law or a Statute confers power on the Central Government to make rules it does not have the power to further delegate this power to any other officer unless provided by that law or the Statute.

THE STATE v. KUNJ BIHARI CHANDRA AND OTHERS-

 In this case, the Patna High court on the basis of the maxim ‘Delegatus non-potest delegare’ held that the legislative power of the government is conferred exclusively to the Legislature.  The legislature therefore cannot surrender or abdicate such power and any attempt to do so will be unconstitutional and void.

CONCLUSION:

From the above discussion, we can conclude that the maxim ‘Delegatus non-potest delegare’ means that a delegate cannot further delegate.  Sub- delegation of legislative power by an authority to whom the power is conferred to some subordinate authority is not permissible unless and until the enabling statute expressly or impliedly allows such further sub-delegation.

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