Sub-Delegation — Administrative Law Notes

Sub-Delegation

Parliament gives power to the Central Government; the Central Government passes it to a Director; the Director passes it to a clerk. At each step the power gets further from the source Parliament chose. The old maxim warns against exactly this: delegatus non potest delegare — a delegate cannot further delegate — unless the parent Act lets him.

What is sub-delegation, and when is it valid?

Sub-delegation is the further delegation of a delegated power — the delegate (say, the Government) passes on the rule-making or decision-making power it received to a sub-delegate (an officer or body below it). The governing maxim is delegatus non potest delegare [a delegate cannot delegate], reflecting that the legislature chose this delegate to exercise its trust, not someone the delegate picks.

The rule is therefore: sub-delegation is not permitted unless authorised, expressly or by necessary implication, by the parent Act. Valid sub-delegation requires:

1. Authority in the parent Act — the enabling statute must permit sub-delegation, either in so many words or by clear implication (e.g. where the administrative structure makes it inevitable).
2. Sub-delegation within limits — the sub-delegate gets no more power than the delegate had, and only such part as is authorised.
3. The essential/policy power is not sub-delegated — a delegate may sub-delegate routine or ministerial functions, but not the core discretion entrusted to it, unless clearly allowed.

Dangers of sub-delegation — worth a line in the answer: it moves power far from the legislature’s chosen hands, dilutes accountability, and can defeat the safeguards the parent Act built around the primary delegate. Hence courts read authority to sub-delegate strictly.

💡 EXAM TIP — Answering a sub-delegation problem

The trap. Candidates jump straight to “delegatus non potest delegare” and declare every sub-delegation void — missing that sub-delegation is valid when the parent Act authorises it.

What to write. State the maxim, then the real test in one sentence: “Sub-delegation is bad unless the parent Act permits it expressly or by necessary implication, and even then the essential discretion cannot be passed on.” Apply it to the facts — does the Act authorise the onward delegation?

Why it scores. It shows you know the rule and its exception, which is exactly what the problem is testing (the examiner plants a sub-delegation with no authorising clause).

On the maxim: “The power to make subordinate legislation delegated by the legislature must be exercised by the authority to which it is given, and cannot be sub-delegated unless the statute authorises it — delegatus non potest delegare.”

In Simple Terms: Sub-delegation is a delegate passing its borrowed power further down. The maxim says a delegate cannot delegate — so sub-delegation is void unless the parent Act allows it (in words or by clear implication), and the delegate can never pass on the essential discretion the legislature trusted to it.

flowchart TD
    P["Legislature (parent Act)"]:::root
    P -->|"delegates"| G["Central / State Government<br/>(delegate)"]:::leaf
    G -->|"sub-delegates"| O["Officer / Authority<br/>(sub-delegate)"]:::leaf
    O --> Q{"Did the parent Act<br/>authorise sub-delegation?"}
    Q -->|"Yes"| OK["Valid sub-delegation"]:::good
    Q -->|"No"| BAD["Void — delegatus<br/>non potest delegare"]:::bad
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef good fill:#D5F5E3,stroke:#1E8449,color:#000;
    classDef bad fill:#FADBD8,stroke:#943126,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

🧩 WORKED EXAMPLE — Government sub-delegating without authority

Facts. A statute delegates certain powers to the Central Government. The Government, without any enabling clause, sub-delegates the same powers to a subordinate administrative authority, which then makes an order affecting X.

Rule. A delegate cannot sub-delegate unless authorised by the parent Act (delegatus non potest delegare). An unauthorised sub-delegation, and any order under it, is void.

Apply. The Act empowered the Central Government alone; it contains no clause permitting onward delegation. The Government’s transfer of the power to a subordinate is therefore without authority.

Conclusion. The sub-delegation is invalid and the subordinate’s order against X is void. X can have it quashed. Only if the Act had authorised sub-delegation (expressly or by necessary implication) would the order stand.

Case Laws

• Sahni Silk Mills v E.S.I. Corporation (1994) — sub-delegation of the power to delegate must be strictly authorised; the essential power cannot be parted with.
• Barium Chemicals v Company Law Board (1967) — a delegate must exercise its own discretion, not surrender it to another.
• State of Karnataka v H. Ganesh Kamath (1983) — a rule-making power cannot be sub-delegated unless the statute so provides.

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