POWER TO REMOVE DIFFICULTIES’ CLAUSES IN INDIAN LEGISLATION: HENRY VIII CLAUSES AND THE LIMITS OF EXECUTIVE POWER TO AMEND STATUTES

Author

Priyansh Shrivastava , Ashmit Chauhan, Arul Markam

Abstract

 Most major Union statutes now end with a clause that lets the executive ‘remove difficulties’ in giving effect to the Act. This article argues that the clause is a Henry VIII power in substance: orders made under it have inserted provisos into the Central Goods and Services Tax Act 2017, rewritten a Schedule to the Insolvency and Bankruptcy Code 2016 and, in October 2026, altered the wording of two sections of the Digital Personal Data Protection Act 2023. The Supreme Court’s test, settled since Jalan Trading and Madeva Upendra Sinai, is sound but rarely applied, while the statutory safeguards are weak: time limits are extended or renewed, and laying before Parliament is a formality. Drawing on the United Kingdom’s experience, the article proposes narrower drafting, reasoned orders, affirmative approval for orders that alter statutory text, fixed sunsets and a statutory test.

Keywords

Henry VIII Clauses, Power to Remove Difficulties, Delegated Legislation, Essential Legislative Functions, • Excessive Delegation Doctrine, Conditional Legislation

Full Text:

Download Paper PDF

References

The power to remove difficulties answers a real need. New statutes, and especially large ones such as a national goods and services tax or an insolvency code, produce gaps that cannot wait for the next session. The Constituent Assembly recognised this when it wrote Article 392. But it also wrote a limit that the executive could not move. The modern clause has kept the power and loosened the limit. Its wording has not changed since the 1970s, while its use has grown from supplementing an Act to inserting words into it, and its time limit from two years to five, and then to five more.

The Supreme Court settled the principle long ago: the executive may make minor adaptations and peripheral adjustments, and may not touch the substance. What is missing is a setting in which that principle is applied as a matter of routine, before an order takes effect and not only when someone sues. Parliament can supply it through narrower clauses, reasons, a vote on orders that alter the Act and a sunset that is kept. The alternative is to accept that the final section of each statute quietly qualifies all the others.

Share your valuable work from Social Media Buttons