Introduction
In 1747, Montesquieu published his magnum opus ‘Espirit des Louis[1]’ in which he elaborated upon the idea of the Separation of Powers. In the course of the next 250 years, perhaps the most significant and ironic development in the field of law would be the increased focus of legal systems on this principle of separation of power simultaneously with increased dependence of the Legislative on the Executive and subsequent erosion of Separation of Powers between the two. In most of the countries following the separation of powers today, the legislative i.e., the law-making body passes skeleton legislation and it is the responsibility of the Executive to fill in the gaps which are also known as ‘delegation of power’. This power varies from unlimited delegation as in the United Kingdom to limited delegation as in the United States of America. In limited delegation, the executive authority is usually empowered to include, exclude, exempt, modify or amend the schedule of the Act. However, there are some special forms of delegation of power that allows the executive to bring substantive changes to the Act. These include the ‘Removal of Difficulty’ or ‘Henry VIII’ clauses.
Need for inclusion of Henry VIII clause
In a welfare State, when a statute is first enacted, it is more of an experiment than a definite policy with a determined outcome. Even though any bill is passed after deliberate discussion and due procedure, there may arise unforeseen circumstances while the implementation of the Act. If the only remedy in such a scenario is that such an Act may again be amended by the legislature following the due procedure, the entire purpose behind delegated legislation will fail which is to provide flexibility and save the time of the legislature. Therefore, it is common for the legislature to enact a law with a clause that allows the executive to change any part of the statute if such a situation arises. These clauses are nicknamed as Henry VIII clause because they vest autocratic power in hands of the executive, a characteristic power of monarch during the reign of King Henry VIII in England.
Henry VIII clauses in India
Even though India has adopted for US model which allows for limited delegation, Henry VIII clauses are frequently used in Indian statutes. Till 1973, out of 500 central enactments, 65 contained the “removal of difficulties” clause in some or other form[2]. However, the question arises that in India which has opted for limited delegation but has not yet codified the same as done in America, are Henry VIII clauses really necessary? While it is reasonably understandable that such clauses were relevant and required during the early years of independence when India was experimenting with its newfound democracy. For example, the States Reorganisation Act, 1956 contained a clause that permitted the appropriate Government to modify the Act.[3] If one considers the milieu of the country when this Act came into existence, such a clause appears to be a necessity. The Act altered the boundaries of various States, creating new States out of them. It was likely that difficulties would arise during the period of transition and it was not humanly possible for the Legislature to visualize all of them which itself was in a nascent stage. The Constitution itself provided the power to the Executive head to remove difficulties.[4]
However, after the initial years and post-emergency era, where the Legislature had already seen how the Executive can abuse its power, the usage of such clauses is not justifiable and should amount to excessive delegation. In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha[5], where the court was posed with the major question of deciding on the validity of Section 37 of the Payment of Bonus Act, 1967 which was a “removal of difficulties” clause, Shah J held that, “The section authorizes the Government to determine for itself what the purposes of the Act are and to make provisions for the removal of doubts or difficulties. If in giving effect to the provision of the Act any doubt or difficulty arises, normally it is for the Legislature to remove that doubt or difficulty. Power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that cannot be delegated to executive authority.” This judgment indicates that usage of Henry VIII clauses in India was discouraged as early as 1967. However, post this decision, various statutes have been enacted and sustained as well containing Henry VIII clauses.
Besides, even after 75 years, there is little uniformity in such clauses. There is no justification whatsoever for the types of legislation in which such clauses can be included. However, looking at the respective Acts passed by the legislature, while the first two Acts[6] did not contain the “removal of difficulties” clause, the same was inserted in Banking Act[7]. Similarly, the Companies Act, 1956 which was the main law that established and regulated the giant companies in India did not have any clause for the removal of difficulties, however, it was provided in its replacement legislation in 2013.[8] The careful perusal of the above examples provides that it is dependent either on the whims of the Parliament whether or not such clause has to be inserted or resorted to by the legislature where laws are passed hastily, without any due deliberation, both of which amount to abdication of responsibility by the Legislature.
Conclusion
The Supreme Court of India in its landmark decision In Re Delhi Laws Act[9] held that “The legislature must formally discharge its primary legislative function itself and not through others.” The power to bring any substantive change in the Act is indisputably the function of the legislature. This remains to be the primary reason why Henry VIII clauses are to be discouraged.Secondly, in a parliamentary system like ours, the legislative is very much under the thumb of the executive. In such a case, empowering the executive to bring substantial changes to remove difficulties will amount to the complete erosion of the separation of power. In most cases, such clauses can be reasonably avoided if the bills in parliament are discussed extensively and the Parliamentary committees provide their due guidance. While it can still be somehow accepted in legislations having a social impact such as ART Act[10], where there may arise an urgent situation, it appears merely as idleness and an attempt to escape responsibility on the part of the Legislature when inserted in corporate statutes. The legislature needs to at least specify a class of statutes where the Henry VIII clause is to be included or it should lay down a detailed guideline for the operation of such clause. At present, such clauses can be found in every other Act passed by the legislature. This denotes the weakness and over-dependence of the Legislature over the Executive. Not to ignore the fact that definite laws must be made by the representative of people in whom the citizens put their trusts and not by a handful of delegates.
Author(s) Name: Shiwangi Singh (Symbiosis International University)
References:
[1] MONTESQUIEU, ESPIRIT DES LOUIS (Paris: Garnier, 1973)
[2] N.A.K. Sarma, Henry VIII clause in India, 15 J. IND. L. INST., 460 (1973).
[3] The States Reorganisation Act, 1956, §120, No. 37, Acts of Parliament, 1956 (India)
[4] INDIA CONST. art. 392
[5] Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691.
[6] Air Corporation Act, 1953, No. 31, Acts of Parliament, 1953 (India) and the L.I.C. Act, 1956, No. 1, Acts of Parliament, 1956 (India).
[7] Banking Companies (Acquisition & Transfer of Undertakings) Act, 1969, No. 5, Acts of Parliament, 1970 (India).
[8] Companies Act, 2013, § 470, No. 18, Acts of Parliament, 2013 (India).
[9] Re Delhi Laws Act, AIR 1951 SC 332.
[10] The Assisted Reproductive Technology Act, 2021,§ 46, No. 42, Acts of Parliament, 2021 (India).
