The Henry VIII Clause
Chapter -Three
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 425 to 427 of 430
In one line
A Henry VIII clause lets the executive amend the Act that created it, and it is named after a king who was thought to like doing things that way.
In the wording a student can write in an exam: a Henry VIII clause is a provision in an Act which empowers the executive to modify the Act itself, usually under the guise of removing difficulties in giving effect to it; such a clause is valid in India only so long as the power to modify does not extend to an essential feature of the Act or to a change of policy, and it is construed narrowly.
The name
It comes from the Statute of Proclamations 1539, which gave the King's proclamations the force of an Act, and the name records the constitutional objection rather than the history: it is a device by which the executive can alter the legislature's own law.
The usual Indian form
The removal of difficulties clause. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for removing the difficulty; often with a limit of two or three years from the commencement, and a requirement that the order be laid before Parliament.
Three features of that form matter.
Not inconsistent with the Act. The commonest safeguard, and the one that keeps most such clauses within bounds.
A time limit. The power is exercisable only for a stated period from commencement, which confines it to teething difficulties.
Laying. The orders are laid before the House.
The Indian limit
Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569, worked in [Conditional Legislation], is the governing authority.
Facts. Section 3(1)(f) of the Patna Administration Act 1915 allowed the Provincial Government to extend to Patna, with such restrictions and modifications as it thought fit, any section of the Bihar and Orissa Municipal Act 1922. A notification applied a taxation section after modifying it so as to remove the procedural safeguards the section contained.
Held. An executive authority can be authorised by statute to modify either existing or future laws, but not in any essential feature. What constitutes an essential feature cannot be stated in general terms, but a modification cannot include a change of policy; the essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct, and the modifications authorised are limited to local adjustments or changes of a minor character. The notification effected a change of policy and was ultra vires.
The Henry VIII Clause
Why it matters here. It is the Indian rule about modification, and it applies to a Henry VIII clause exactly as it applies to an extension power.
The objections, stated fairly
It inverts the hierarchy. The delegate amends the delegator's law.
It escapes debate. An amendment by order is not an amendment Bill.
It is open-ended. Difficulty is not a standard.
And it is often used after the difficulty period is over, or to do things the Act deliberately did not do.
The defence
Real difficulties arise. A large Act with transitional provisions and several commencement dates will throw up problems nobody foresaw, and an amendment Bill for each would be absurd.
The safeguards work. Not inconsistent with the Act, a time limit, laying, and Rajnarain Singh's rule against changing policy.
And the courts construe it narrowly. A removal of difficulties order which does more than remove a difficulty is ultra vires.
A worked example
An Act constituting a new regulatory authority contains a clause allowing the Central Government, for two years from commencement, to make such provisions not inconsistent with the Act as appear necessary for removing any difficulty. In the second year the Government issues an order extending the term of the first chairperson from three years to five, and in the fourth year it issues another order exempting a class of entities from the Act.
The first order is doubtful but arguable: a term of office is arguably a matter of policy, since the Act fixed three years, and altering it is not removing a difficulty but changing what the Act decided, which is Rajnarain Singh. The second is plainly bad twice over: it is outside the two-year period, and exempting a class from the Act decides to whom the law applies, which is the essential legislative function.
What this does NOT mean
It does not mean such clauses are unconstitutional. They are valid within their limits.
It does not mean any change to the Act is void. A minor adjustment consistent with the Act and within the period is good.
It does not mean the clause is rare. Almost every large modern Indian Act contains one.
Quick revision
A clause empowering the executive to modify the Act itself, usually as a removal of difficulties power, named after the Statute of Proclamations 1539. The Indian form is confined by three safeguards: not inconsistent with the Act, a time limit from commencement, and laying. Rajnarain Singh supplies the rule: an executive authority may be authorised to modify a law but not in any essential feature, and modification cannot include a change of policy, being limited to local adjustments or minor changes. The objections are inversion of the hierarchy, escape from debate and the vagueness of difficulty; the defence is that real difficulties arise and that the safeguards and narrow construction hold.
The Henry VIII Clause
Test yourself
1. What is the usual Indian form of the clause? A removal of difficulties power: the Government may, by order published in the Gazette, make such provisions not inconsistent with the Act as appear necessary for removing a difficulty, usually for a limited period and subject to laying.
2. State the Rajnarain Singh limit. An executive authority may be authorised to modify a law but not in any essential feature; modification cannot include a change of policy and is confined to local adjustments or changes of a minor character.
3. Name the three safeguards in the standard clause. That the order must not be inconsistent with the Act; that the power is exercisable only for a stated period from commencement; and that the order is laid before the legislature.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.