Introduction: When Power Changes Hands
In 1986, food inspectors across Punjab began prosecuting vendors under the Prevention of Food Adulteration Act—a power originally vested in the State’s Food (Health) Authority. The Authority had delegated prosecution powers downward without explicit statutory permission. When challenged, the Supreme Court struck down these prosecutions as ultra vires, invalidating convictions and highlighting a fundamental constitutional principle: a delegate cannot further delegate.
This ancient maxim—Delegatus non potest delegare (Latin for “a delegate cannot delegate”)—serves as a vital constitutional bulwark in Indian administrative law. It prevents the unchecked proliferation of authority, preserves accountability, and ensures that power exercised in citizens’ lives remains traceable to its legitimate source.
As governance evolves with digital tools, algorithmic decision-making, and increasingly complex administrative structures, this doctrine remains a timeless guardrail against the anonymity of power. It answers a critical question: When authority is entrusted to one person or body, can they simply pass it on to another?
Conceptual Foundation: Why Delegates Cannot Delegate
The Fiduciary Nature of Delegation
The maxim rests on a foundational principle: authority is conferred upon a specific delegate for a reason—their expertise, position, judgment, or democratic accountability. This creates a fiduciary relationship where the delegate holds power in trust for the public good.
When Parliament or a legislature delegates authority to a Minister, or when a Minister is empowered under statute to make certain decisions, that choice reflects institutional judgment about who should wield that power. Allowing unfettered sub-delegation would undermine this carefully constructed chain of accountability.
Discretionary vs. Ministerial Functions
Courts distinguish between two types of delegated powers:
| Type of Power | Nature | Delegation Rule |
|---|---|---|
| Discretionary Powers | Involve policy choices, judgment, or rights-affecting decisions | Must be exercised personally by the designated delegate |
| Ministerial Functions | Routine, mechanical, or administrative tasks | May permit implied sub-delegation for efficiency |
Examples of Discretionary Powers
- Deciding whether to detain someone under preventive detention laws
- Approving or rejecting licenses that affect livelihoods
- Determining compensation in land acquisition cases
- Exercising prosecutorial discretion in criminal matters
Examples of Ministerial Functions
- Issuing notices after a decision has been made
- Collecting and compiling data
- Processing routine paperwork
- Scheduling hearings or meetings
This distinction prevents administrative paralysis while maintaining accountability where it matters most—in decisions that affect rights, liberties, and livelihoods.
A Rule of Construction, Not Absolute Prohibition
Indian courts treat Delegatus non potest delegare as an interpretive principle rather than an inflexible rule. When evaluating whether sub-delegation is permissible, courts examine:
- Express Authorization: Does the statute contain phrases like “or such other officer as he may authorize” or “through subordinate officers”?
- Necessary Implication: Does the statute’s purpose, scope, or practical operation necessarily imply sub-delegation authority? For instance, can the Prime Minister’s office realistically function if every routine matter requires personal attention?
- Nature of the Power: Is the function discretionary or ministerial?
- Impact on Rights: Does the sub-delegation affect fundamental rights or personal liberty?
This nuanced approach prevents erosion of accountability while accommodating practical governance needs.
Judicial Interpretation: The Supreme Court’s Framework
Landmark Cases in Administrative Law
Personal Liberty and Criminal Law
A.K. Roy & Anr. v. State of Punjab (1986) 4 SCC 326
The Food (Health) Authority of Punjab delegated prosecution powers under the Prevention of Food Adulteration Act to Food Inspectors without express statutory authorization. The Supreme Court invalidated this arrangement, emphasizing that criminal prosecution—with its profound impact on personal liberty—demands clear statutory backing for any sub-delegation. The delegate’s discretion to prosecute cannot be casually transferred to subordinates.
Key Principle: In matters affecting personal liberty, the presumption against sub-delegation is strongest, requiring explicit legislative permission.
A.K. Roy v. Union of India (1982) AIR 710 (SC)
Sub-delegation of detention powers under the National Security Act was struck down for lacking explicit statutory permission. The Court underscored that preventive detention—already an extraordinary power—cannot be further delegated without clear legislative warrant, as it represents one of the most severe restrictions on individual freedom.
Dattatreya Moreshwar v. State of Bombay (1952) SCR 612
An order under the Defence of India Rules was passed by an official who sub-delegated its implementation to another officer. The Supreme Court declared this unconstitutional, affirming the maxim’s post-independence vitality in curbing executive overreach even during periods of national emergency.
Welfare Administration and Statutory Benefits
Sahni Silk Mills (P) Ltd. v. Employees’ State Insurance Corporation (1994) 5 SCC 346
The E.S.I. Corporation delegated recovery powers to the Director General, who further sub-delegated to Regional Directors. The Supreme Court quashed the sub-delegation, ruling that while the Director General could seek consultative assistance from regional officers, the final authority and responsibility for recovery decisions could not be transferred.
Key Principle: Even in welfare legislation, accountability requires that the designated authority retain ultimate decision-making power.
Director General, Employees’ State Insurance Corporation v. T. Abdul Razak (1996) AIR 2292 (SC)
The Court reinforced that sub-delegation of powers under the E.S.I. Act to subordinate officers was unauthorized absent statutory provisions. In welfare administration, where citizens depend on timely and fair adjudication of benefits, diluting accountability through unauthorized sub-delegation undermines the statutory scheme.
Property Rights and Land Administration
State of Rajasthan v. Hari Shankar Rajendra Pal Singh (1959) AIR 1238 (SC)
In a land acquisition dispute, the State delegated powers to an officer who further sub-delegated to a subordinate. The Supreme Court invalidated this arrangement, emphasizing that matters involving public property and compulsory acquisition demand heightened scrutiny against unauthorized power shifts. Property rights, being fundamental to economic liberty, cannot be subject to diffused accountability.
Defining the Doctrine’s Boundaries
Barium Chemicals Ltd. v. Company Law Board (1966) Supp SCR 311
This landmark judgment delineated the maxim’s contours with clarity. The Court ruled that the doctrine is not absolute:
- Sub-delegation is permissible for ministerial acts but impermissible for discretionary ones.
- The delegate must retain ultimate responsibility for substantive decisions while being permitted to use subordinates for administrative support.
Key Principle: The test is whether the sub-delegate exercises independent discretion or merely executes the delegate’s decision.
Identifying Impermissible Sub-Delegation: The Judicial Test
Courts apply a structured analysis when evaluating sub-delegation challenges:
- Examine the Parent Statute: Does it expressly authorize sub-delegation?
- Classify the Function: Is it discretionary or ministerial?
- Assess the Impact: Does the decision affect fundamental rights, property, or liberty?
- Review Necessity: Is sub-delegation practically necessary given the office’s workload and function?
- Evaluate Accountability: Can the original delegate still be held responsible, or has accountability been severed?
Recognized Exceptions: When Sub-Delegation Is Permissible
While the principle against sub-delegation is robust, courts have recognized four categories where sub-delegation may be valid:
1. Express Statutory Authorization
When the parent statute explicitly permits sub-delegation through phrases such as:
- “or such officer as he may authorize”
- “through subordinate officers”
- “may delegate any of his functions”
Example: Many taxation statutes authorize Commissioners to delegate routine assessment functions to Assistant Commissioners, creating a clear statutory chain of authority.
2. Ministerial or Routine Functions
Administrative efficiency requires that routine, non-discretionary tasks can be performed by subordinates without invalidating the entire administrative structure.
Permissible Sub-Delegations
- Issuing notices after a decision has been made
- Maintaining records and files
- Collecting data for reports
- Scheduling appointments or hearings
Impermissible Sub-Delegations
- Deciding the content of a show-cause notice
- Determining which cases to investigate
- Evaluating evidence and making findings
- Exercising statutory discretion
3. Necessity and Implied Authority
In certain contexts, the volume of work or nature of the office necessarily implies some sub-delegation authority.
State of Uttar Pradesh v. B.D. Pati Tripathi (1982) 3 SCC 645
The Supreme Court inferred sub-delegation power by necessary implication where the administrative context required broad operational latitude. High-volume offices like the Prime Minister’s Secretariat or Chief Secretary’s office cannot function if every routine matter requires personal attention.
Critical Caveat: Necessary implication applies only to administrative support, not substantive decision-making. The delegate must retain ultimate control and responsibility.
Examples of Necessary Implication
- The Prime Minister delegating routine correspondence to secretaries while retaining policy decisions
- A Chief Justice assigning case management tasks to registry officials while retaining adjudicative authority
- A Cabinet Minister using departmental staff for research and drafting while making final policy choices
4. Ancillary to Delegated Legislation
Sub-delegation may support implementation of delegated legislation, provided it doesn’t undermine the legislative policy framework.
Example: If Parliament authorizes a Minister to make rules on industrial safety, the Minister may delegate routine standard-setting for specific equipment to technical experts, provided the policy framework remains under ministerial control.
The Bright Line
Courts vigilantly review these exceptions to prevent evasion. The key question remains: Has accountability been preserved, or has it been diffused beyond recognition?
Application to Legislative Powers: Double Delegation
The doctrine applies with heightened force when Parliament delegates legislative (rule-making) authority to the executive.
Sub-delegated legislation—rules framed by subordinates of the primary delegate—raises profound constitutional concerns.
The Constitutional Stakes
When Parliament empowers a Minister to make rules under an Act, this represents a carefully calibrated transfer of legislative function. Further sub-delegation to bureaucrats creates “double delegation” that risks:
- Severing accountability to Parliament
- Creating rules by officials with no democratic mandate
- Obscuring who is responsible for legislative choices
- Undermining parliamentary oversight
Key Cases on Legislative Sub-Delegation
Ultra Tech Cement Ltd. v. Union of India (Kerala High Court, 2018):
The Court ruled that legislatively delegated powers cannot be sub-delegated without express authorization. The primary delegate must exercise rule-making authority personally, as this represents quasi-legislative function requiring clear political accountability.
State of Bihar v. Kunja Behari Chandra (Patna High Court, 1954):
A Central Government rule permitting a commissioner to delegate créche construction planning constituted impermissible double delegation. The Court held that absent legislative warrant, sub-delegation of rule-making authority violates the constitutional separation of powers.
Consumer Action Group v. State of Tamil Nadu (2000) AIR 3060 (SC):
Delegating urban planning powers to non-statutory private entities without authorization was quashed. The Supreme Court emphasized that statutory powers—especially quasi-legislative functions—cannot devolve to unaccountable private bodies. This principle safeguards against privatization of legislative authority.
The Henry VIII Clause Problem
“Henry VIII clauses” empower executives to modify parent Acts through subordinate legislation—a practice that invites particular scrutiny in India’s constitutional framework.
In re Delhi Laws Act (1951) SCR 747:
The Supreme Court curtailed Henry VIII-style delegations, limiting them to non-essential matters and prohibiting abdication of core policy functions to the executive. Parliament cannot delegate its power to amend primary legislation except in narrowly defined circumstances.
Hamdard Dawakhana v. Union of India (1959) AIR 652 (SC):
The Court invalidated unguided delegations as excessive, demanding that Parliament provide intelligible policy guidelines. The executive cannot receive carte blanche legislative authority; clear boundaries and standards must cabin discretion.
Harishankar Bagla v. State of Madhya Pradesh (1954) AIR 465 (SC):
While upholding “canalized” delegations with clear guidelines, the Court cautioned against legislative surrender. Parliament must retain its essential legislative function; delegation must be subordinate, not substitute, to parliamentary lawmaking.
Modern Challenges: Digital Governance and Algorithmic Decision-Making
The AI and Automation Question
As governments increasingly deploy artificial intelligence and automated systems, Delegatus non potest delegare faces new frontiers. Can discretionary authority be delegated to algorithms? Several concerns emerge:
- Accountability Gaps: When an AI system denies welfare benefits or flags individuals for investigation, who is accountable? The programmer? The Minister who approved the system? The algorithm itself?
- Discretion Without Judgment: Algorithms execute predetermined rules but lack human judgment, contextual understanding, and the ability to exercise mercy or recognize exceptional circumstances. This may violate the principle that discretionary powers must be exercised with human wisdom.
- Opacity and Explainability: Many AI systems operate as “black boxes,” making decisions through complex calculations that even experts cannot fully explain. This conflicts with the accountability principle underlying the maxim—power must be traceable and explainable.
Emerging Jurisprudence
Courts will likely apply traditional principles with technological adaptation: digital tools can facilitate authorized actions but cannot themselves create authority where none exists. An automated system executing a human decision is permissible; an automated system exercising independent discretion is not.
Conclusion: Safeguarding Democratic Accountability
Delegatus non potest delegare endures as a cornerstone of Indian administrative and constitutional law. It serves multiple vital functions:
- Preserving Legislative Intent: Ensuring that power is exercised by those whom Parliament intended to wield it
- Maintaining Accountability: Creating clear lines of responsibility so citizens know whom to hold answerable
- Protecting Rights: Preventing arbitrary or anonymous exercises of power that affect fundamental freedoms
- Enabling Judicial Review: Facilitating courts’ ability to scrutinize administrative action by identifying responsible decision-makers
- Preventing Bureaucratic Drift: Stopping power from migrating to unaccountable officials far removed from democratic oversight
As India navigates the complexities of digital governance, artificial intelligence, and increasingly sophisticated administrative structures, this maxim’s wisdom becomes ever more relevant. Technology should enhance accountability, not obscure it. Efficiency should serve justice, not evade it.
The doctrine reminds us that in a democracy, power is not merely a tool for efficient administration—it is a trust held on behalf of the people. When that trust is delegated, it comes with the solemn responsibility to exercise it personally, carefully, and accountably.
Through judicious interpretation and a rich tapestry of precedents, Indian courts have ensured that delegation serves the people rather than shadows them in bureaucratic anonymity. As new challenges emerge, this constitutional guardrail will remain indispensable, reminding us that power, once entrusted, demands vigilant stewardship.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
