Literal Meaning
The power which is derived cannot be greater than from which it is derived.
Explanation
The maxim finds its importance in the legislative laws formed by the legislature. The maxim of law states, “The power which is derived cannot be greater than that from which it is derived.” This means that government elected by the people, which gets is power or authority to govern from the people who elected it, can never therefore have greater power or authority than that which the people possess. That means that an elected, lawful, government must be in subjection to the will of the people.
The principle of equity is behind every de jure government of delegated powers. This is so because the thing created cannot be greater that the thing that created it. (Derivata potestas non potest esse major primitiva) According to the courts, “You” (the people) created government and “They” (Governmental authorities) did not create you. Therefore they work for you and you do not work for them.
Origin
This maxim of law finds its origin in the roman canon law with the Latin meaning- The power which is derived from God cannot be greater than that from which it is derived. [Romans 13:1]
Illustration
In a principal – agent relation the agent can sub-delegate his power to another person through the law of substitution i.e. with the permission and consent of the principal. Here, the sub-delegated powers cannot exceed the powers which the agent has been delegated by the principal.
Case Reference
In the case of U.S. v. William M. Butler[1], the court stated, “The Federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction or limitation, s vested in a parliament or other legislative body subject to no restriction except the discretion of its members.”
In the case of United States v. Cruikshank[2], the court held that the Government of the United States is one of delegated powers alone. Its authority is defined and limited by the constitution. All powers not granted to it by that instrument are reserved to the States or the people.
In the case of R. K. Talukdar v. Union of India[3], the court held that the power bestowed in government to draw all persons subject to the Army Act, 1950 within the purview of “active service”, even not so in the touch stone of Section 3(1) thereof being derivatory in nature, van by no means be awarded a status to override any express provision of the parent statute; as is the maxim derivata potestas non potest esse major primitiva.
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi Raje
Reference:
[1] 297 U.S. 1 (1936)
[2] 92 U.S. 542 (1875)
[3] 2008 (1) GLT 115
