A Henry VIII clause is the term given to a provision in a primary Act which gives the power for secondary legislation (regulations) to include provisions which amend, repeal or are inconsistent with the primary legislation. The effect of a Henry VIII clause is that whoever makes the regulations has been delegated legislative power by the Parliament. In other words, the executive arm of government would have the power to make regulations which can modify the application of the primary statute. A Henry VIII clause is so called because of the penchant of the English monarch of that name to give himself power to amend (and in some cases to suspend or dispense with) statutes passed by the Parliament. So the expression “Henry VIII clause” has come to mean “a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny”. After the death of Henry VIII, such clauses fell into disuse and it was 1888 before they seem to have re-emerged in the United Kingdom. Even then, their use was spasmodic and in a circumscribed form. It was not until the Thatcher era3 that these clauses became frequent. The original Henry VIII clause was contained in the Statute of Sewers in 1531, which gave the Commissioner of Sewers powers to make rules which had the force of legislation (legislative power), powers to impose taxation rates and powers to impose penalties for non-compliance. A later Statute of Proclamations (1539) allowed the King to issue proclamations which had the force of an Act of Parliament. Both these were passed during the time of Henry VIII. Are Henry VIII clauses an unconstitutional abdication of power? The High Court has held that they are not, as long as Parliament retains the right to repeal or amend the primary statute (Capital Duplicators Pty Ltd v ACT). Regulations made under Henry VIII clauses, are not automatically subject to parliamentary scrutiny and debate, yet they are law, unless they are disallowable regulations Henry VIII clauses can give rise to uncertainty and frustration in application when all the law is not contained in the primary statute. Henry VIII Clauses are considered unpopular in the courts, but that does not make them invalid, and they are often held valid despite there being often very little guidance in the clause providing the power to make the regulations on what those regulations might be. The Court can declare a Henry VIII clause invalid, they must consider that to be valid the clause must be within the boundaries of legislative power of the Parliament, though even if it is within legislative power it must come under a head of legislative power Henry VIII was born at Greenwich on 28 June 1491, the second son of Henry VII and Elizabeth of York. He became heir to the throne on the death of his elder brother, Prince Arthur, in 1502 and succeeded in 1509. He was a despot. To some, Henry VIII was a strong and ruthless ruler, forcing through changes to the Church-State relationship which excluded the papacy and brought the clergy under control, thus strengthening the Crown's position and acquiring the monasteries wealth. The first “modern” instance of a “Henry VIII clause” was in the Local Government Act 1888, when the power to amend was given to empower the Minister to bring the Act “into full operation”. The main justification for creating a Henry VIII clause is that when an Act is put into operation it may require minor amendments for it to work effectively in practice.
The Donoughmore Committee was set up in 1929 to examine and report on the whole question of Ministerial powers The Donoughmore Committee of the UK in 1932 set out several principles of use including the following: routinely. Without proposing the total abolition of the Henry VIII clause, the Donoughmore Committee recommended that it “should be abandoned in all but the most exceptional cases, and should not be permitted by parliament except upon special grounds stated in the Ministerial Memorandum of the Bill”. A sunset provision should be included to mean the regulations created are repealed after a certain period of time and the Henry VIII clause should also be subject to a sunset. As the supreme law-making body, Parliament may occasionally consider that a Henry VIII clause is justified. For example, for the purpose of ensuring a smooth transition from one "old" Act to a new replacement Act, the empowering provision may enable regulations to be made to negate or amend the old Act When considering whether a Henry VIII clause is justified, the following should be taken into account:
a provision allowing for the making of regulations to amend the empowering Act should only be used in exceptional circumstances and should not be used routinely in reforming legislation: a complex reform involving the amalgamation of a large number of statutes may justify the use of an empowering provision allowing for regulations to override the primary legislation. Technical amendments or a rewrite of an existing Act that does not amount to a substantial change in the principles and context do not justify such use: a regulation-making provision that provides for regulations to override primary legislation should be drafted in the most specific and limited terms possible and must at all times be consistent with and support the provisions of the empowering Act: that any such provisions should be limited in time. Statutory provisions permitting primary legislation to be modified by transitional regulations should generally be subject to a sunset clause of 3 years: regulations made under such a provision should also be subject to the sunset clause set out in the empowering provision or, where that is not considered feasible, subject to confirmation by Parliament: a provision for consultation may be appropriate. INDIAN SCENARIO
Article 372(2) in The Constitution Of India 1949 lays: For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. The most widely criticized form of delegating amending power is called the “Henry viii clause”. In this type of delegation, the legislature gives power to the executive to make modification in the act to meet any difficulties. The committee on minister’s powers has pointed out that such broad
delegation is inconsistent with the principles of parliamentary government. It was suggested that the Henry viii clause should be used only for the purpose of bringing an act into operation and that too only when „demonstrably‟ essential and only for a period of one year from the passing of the act. The henry viii clause can be found in many statutes, the general formula that is used to empower the government to modify the provisions of the statute for “removal of difficulties” should not be used by the executive to introduce any change opposed to the basic policy of the act itself The classic illustration of such a provision is found on the constitution itself. Usually, such a provision is for a limited period. This provision has been vehemently criticized by Lord Hewart and other jurists. It is nicknamed as the Henery VIII clause to indicate executive autocracy. In Jalan Trading Company v. Mill Majdur Sabha the Supreme Court was called upon to decide the legality of such a clause. Section 37 (1) of the payment of Bonus Act 1965 empowered the central government to make such orders, not inconsistent with the purpose of the act, is might be necessary or expedient for the removal of any doubts or difficulties. Section 37 (2) made the order passed by the central government under sub section (1) final. The court by a majority of 3:2 held section 37 ultra vires on the ground of excessive delegation in as much as the government was made the sole judge of whether any difficulty or doubt had arisen, whether it was necessary to remove such doubt or difficulties and whether the order made was consistent with the provisions of the act. Again, the order passed by the central government was 'final'. Thus, in substance, legislative power was delegated to executive authority, which was not permissible. The minority, however, took a liberal view and held that the functions to be exercised by the central government was not legislative functions at all but were intended to advance the purpose which the legislature had in mind. In the words of Hidautllah, J. (as he then was): "parliament has not attempted to set up legislation. I have stated all that it wished n the subject of bonus in the act. Apprehending, however, that in the application of the new act doubts and difficulty might arrive and not leaving there solutions to the court with the attendant delays and expense, parliament have chosen to give power to the central government to remove doubt and difference by a suitable order." It is submitted that the minority view is correct and after Jalan trading company, the Supreme Court adopted the liberal approach. In Gammon India Ltd. V. union of India a similar provision was held constitutional by the court. Distinguishing Jalan Trading Company, the court observed: "in the present case, neither finality nor alteration is contemplated in any order under section 34 of the act. Section 34 is for giving effect to the provisions of the act. This provision is an application of the internal functioning of the administrative machinery." It, therefore, becomes clear that after Jalan Trading Company, the court changed its view and virtually overruled the majority judgment. In Patna University v. Amita Tiwari, the relevant statute enabled the chancellor to issue the directions to universities "in the administrative and academic interest. In exercise of that power, the chancellor directed the university to regularize services of an ineligible teacher "on compassionate grounds." When the action was challenged, it was sought to be supported on the basis of "removal difficulties" clause. Holding that the "removal of difficulties" clause had only limited application, the Supreme Court quashed the order. It is submitted that by using a 'removal of difficulties' clause, the government "may slightly tinker with the act to round off angularities and smoothen the joint or remove minor obscurities o make it workable, but it cannot change or disfigure the basic structure of the act. In no case can it under the guise of removing a difficulty, change the scheme and essential provision of the act" the committee on ministers' powers rightly opined that it would be dangerous in practice to permit the executive to change an act of parliament and made the following recommendations:
"the use of the so called Henery VIII clause conferring power on a minister to modify the power of on a minister to modify the provision of acts of parliament should be abounded in all but most exceptional cases and should not be permitted by parliament except upon special grounds stated in a ministerial memorandum to the bill. Henery VIII clause should never be used except for the sole purpose of bringing the act into operation but subject to the limitation of one year." W.B. State Electricity Board v. Desh Bandhu Gosh (1958) 3 SCC 116 it was held that Regulation 34 of the West Bengal State Electricity Regulation which had authorized the Board to terminate the Service of any permanent employer on three months notice or pay in lieu thereof. This hire & fire rules of regulation 34 is parallel to Henry VIII clause. Similar position was held by the court in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly AIR1986SC1571 wherein rule 9 of the service rules of the CIWTC conferred power to terminate on similar lines as in the case of Desh Bandhu Ghosh the court went on to say that No apter description of Rule 9(i) can be given than to call it "the Henry VIII clause". It was found to be violative of audi alteram partem rule of natural justice which was implicit in Article 14 of the Constitution of India. An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the Provincial Government was authorized to extend, with restrictions and modifications as it thought fit any enactment in force in any part of India to the Province of Delhi. This is the most extreme type of delegation, which was impugned in the Supreme Court in the Delhi Laws Act case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if the administrative authorities materially interfered with the policy of the Act, by the powers of amendment or restriction but the delegation was valid if it did not affect any essential change in the body or the policy of the Act.
