Sub-Delegation in Administrative Law: Delegatus Non Potest Delegare and When Sub-Delegation is Permissible

Sub-delegation is delegation by a delegate. Parliament confers rule-making power on the Central Government; the Government, by rule, authorises a Board to make further rules; the Board authorises an officer to issue directions. Each step carries the law one stage further from the body that alone holds the primary power, and the law regards that distance with suspicion. The governing maxim is delegatus non potest delegare, a delegate cannot delegate, and it operates as a rule of construction: sub-delegation is invalid unless the parent Act permits it, expressly or by necessary implication. This topic explains the maxim, the situations in which sub-delegation is nevertheless permissible, the special rules that apply to government departments and to quasi-judicial powers, and the consequences of unauthorised sub-delegation.

1. The Maxim and its Basis

Two reasons support the rule in the context of delegated legislation. First, the trust reason: legislative power is entrusted to the legislature, which may take limited help, but every further step attenuates the connection between the rule and the representative body whose judgment the Constitution requires. Second, the selection reason: the parent Act names the delegate for a purpose, often because of its expertise, accountability or position, and a sub-delegate may possess none of those qualities. The maxim is accordingly not an absolute prohibition but a presumption against sub-delegation, rebuttable by the terms of the statute.

2. When Sub-Delegation is Permissible

Sub-delegation is valid in the following situations.

1. Express statutory authority. The parent Act itself permits the delegate to authorise another to exercise the power, for example by providing that the Government may, by notification, direct that a power exercisable by it shall be exercisable also by a named officer or authority. This is the clearest and commonest basis.
2. Necessary implication. Where the scheme and purpose of the Act cannot work without sub-delegation, the power may be implied. Statutes conferring wide regulatory or emergency powers on a Government, which manifestly cannot be exercised personally over a whole country, are read as contemplating exercise through subordinate authorities.
3. Ministerial and administrative assistance. What the maxim forbids is the transfer of the discretion; it does not forbid the delegate from taking help in the mechanical and preparatory work. Investigation, collection of material, drafting and communication may be performed by others so long as the judgment remains that of the authority on whom the power is conferred.
4. Exercise through departmental machinery under the rules of business. Government functions are constitutionally allocated and authenticated under Articles 77 and 166, and action taken by an officer duly authorised under those rules is the action of the Government itself, not a sub-delegation at all.

3. Where Sub-Delegation is Not Permitted

1. No authority in the parent Act. Where the Act names the delegate and says nothing about further delegation, and the scheme does not require it, a purported sub-delegation is void, and so is everything done under it.
2. Sub-delegation of a quasi-judicial power. Adjudicative functions are personal to the authority entrusted with them. The authority must hear and decide itself, and cannot pass the decision to another, a principle connected with the rule that the one who hears must decide, applied in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308.
3. Sub-delegation that exceeds the power delegated. A sub-delegate can never have more than the delegate had; a sub-rule wider than the rule under which it is made is void to the extent of the excess.
4. Sub-delegation amounting to abdication. Where the delegate, instead of exercising its power, hands the field over to another so as to cease to be the effective author of the rules, the arrangement fails for the same reason that legislative abdication fails.
5. Delegation of the essential legislative function at the second stage. The limits that apply to the first delegation apply with greater strictness to the second; policy determination cannot be passed down the chain.

The distinction between forbidden sub-delegation and permissible assistance is fundamental, and the decision on which side a case falls turns on who exercises the judgment. Where the authority applies its own mind on material gathered by others, there is no sub-delegation. Where another body in substance decides and the authority merely signs, the power has been sub-delegated and the act is bad, whether the objection is framed as sub-delegation, as dictation under Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16, or as non-application of mind.

4. Sub-Delegation and Government Business

A frequent source of confusion is the position of the Government itself. The executive power of the Union and the States is vested in the President and the Governors, but is exercised through Ministers and officials. Articles 77 and 166 provide for the allocation of business and the authentication of orders, and rules of business made under them assign functions to Ministers and Secretaries. An order made by an officer to whom business has been allocated in this way is the order of the Government; the officer is not a sub-delegate exercising someone else's power but the constitutional machinery through which the Government acts. This is why the ordinary objection of sub-delegation does not lie against departmental action taken in conformity with the rules of business, though the separate objections of dictation and non-application of mind remain available.

Where, however, a statute confers a power on a named authority, a Board, a Commissioner, a Collector, the rules of business do not assist: the power must be exercised by that authority or by a person lawfully authorised under the Act, and a departmental arrangement cannot substitute a different officer.

5. Consequences and Control

6. The Position in Summary

1. Sub-delegation is delegation by a delegate, and is governed by the maxim delegatus non potest delegare, which operates as a presumption against further delegation rather than an absolute bar.
2. It is permissible where the parent Act authorises it expressly or by necessary implication, and it is not engaged at all where the delegate merely takes ministerial assistance or acts through the constitutional machinery of the rules of business under Articles 77 and 166.
3. It is not permitted where the Act gives no authority, where the power is quasi-judicial, where the sub-delegate would exceed the delegate, or where the arrangement amounts to abdication.
4. The decisive question in every case is who exercised the judgment; where another body in substance decides, the act fails as sub-delegation, dictation or non-application of mind.
5. Unauthorised sub-delegation is void, and the invalidity extends to every rule, order or act made under it.

7. Related Topics and Provisions

• Types of Delegated Legislation (Topic 25): sub-delegation as a category within the classification.
• Doctrine of Excessive Delegation (Topic 27) and Essential Legislative Function (Topic 28): the limits that apply with greater strictness at the second stage.
• Administrative Decision-Making (Topic 19): dictation, application of mind and the rules of business.
• Quasi-Judicial Functions (Topic 18): why adjudicative powers cannot be passed on.
• Control of Delegated Legislation: publication and ultra vires review of sub-delegated instruments.
• Constitution of India: Articles 77, 166, 245 and 246.