This article is written by Vipasha Verma, from National Law University, Odisha. This is an exhaustive article which deals with the constitutional validity of the Henry VIII Clause.

Introduction 

In India, the validity of the Henry VIII clause, in its broad nature, remains an ambiguous issue while the issue of the legality of the narrow Henry VIII clause is a decided one. The case laws upon the former aspect of the Henry VIII clause have been incorrectly analysed to a substantial extent both by scholars and in reputed legal commentaries. Further, as per the political environment that exists at present in the Indian set up, given the rising complexities and the sheer number of legislations that the Parliament is required to deal with and the complex composition of the population of India, the narrow as well as the broad Henry VIII clause become matters of necessity even though they may be viewed with suspicion. This article deals with the concept of the Henry VIII clause, its attributes and forms, landmark judgements and their analysis, and recommendations for the judiciary in future cases. 

What is The Henry VIII clause

The Henry VIII Clause is an expression referring to executive authority. While delegating its power of law-making to the executive, the legislature generally does not confer any powers on the executive to amend or modify the Parent Act. However, if such a clause is inserted in the statute, which vests power in the executive to amend or modify the original Act, it is referred to as the Henry VIII clause. This clause implies a naked delegation of essential legislative power to the executive by the legislature. The Statute of Sewers of 1531 contained the original Henry VIII clause. It conferred on the Commissioner of Sewers powers to make rules which had legislative powers, to impose taxation rates, and to impose penalties for non-compliance. Later, the Statute of Proclamations of 1539 permitted the King to issue proclamations that had the force of Act of Parliament. Both of these were passed during the period of Henry VIII. 

Attributes of the clause

The Henry VIII Clause is in contrast to the situation wherein the executive is conferred with the power of modification of a statute already in existence. They can amend the Parent Act to better suit a territory when the legislation is extended from one area to another. It also does not permit the executive to make rules to give effect to the Parent Act. 

It is important to distinguish the clause from several other instances of excessive delegated legislation because any clause present in the statute, providing the executive unguided rulemaking powers, is presumed to be the Henry VIII Clause. For instance, in cases such as West Bengal Electricity Board v Desh Bandhu Ghosh (1985) and Central Inland Water v Brojo Nath Ganguly (1986), it was misunderstood that the conferment of arbitrary powers upon the Executive through a regulation makes it a Henry VIII clause. 

The clause exists in the form of ‘removal of doubt or difficulties’ clause. The clause can be located in a plethora of statutes in India, including the Constitution of India. 

Forms of the clause

There are several criteria for a better understanding of the Henry VIII Clause:

1. If it is a broad Henry VIII Clause, it should imply situations where the clause empowers the Executive to make legislation not only in contravention to the Parent Act but also of any other law in effect; with the only restriction being that the essence of the Parent Act is kept unamended. 
2. If the objective of delegation is taken as a criterion, the Clause may have the objective of facilitating the transition from old legislation to a new law upon the same matter. 
3. If the objective of flexibility is taken as a criterion, it may have the option to bring in any new Act in its full operation. 
4. It may just be a general clause, which serves the purpose of, as stated above, removing doubts and difficulties that may arise at any time after the enactment of the Patent Act. 
5. If the existence of a time limit is taken as a criterion, then the Clause may be restricted by time duration, mostly in the initial years of the enactment. These are called sunset provisions. 
6. If finality accorded is taken as a criterion, the clause excludes the scope for judicial review of delegated legislation enacted in pursuance of the powers conferred on the Executive. 
7. In some cases, the Clause stipulates the procedure to be followed by the Executive when exercising the powers. 
8. Sometimes, the Clause requires the laying of the delegated legislation before each House of the Parliament. 

England’s position on the clause

The National Insurance Act, 1961 in England empowered the insurance commissioners to make any amends that they thought were necessary and expedient, if any issues arose in bringing the Act into operation and for that purpose, modify the provisions of the Act itself. Such types of delegations were unchallengeable as the Parliament held more powers. The Report of Committee on Ministers’ Power, released in October 1929, criticised the use of the Henry VIII Clause and it was recommended that the Clause should only be used for the purpose of bringing an Act when demonstrably essential. It pointed out that such broad legislation is against the principles of Parliamentary Government. 

Recommendations made by the committee

1. Type of delegations such as the Henry VIII should be avoided as far as possible and be resorted to only sparingly under exceptional and extraordinary circumstances in which it is absolutely necessary.
2. Such clause should be given effect only for a limited period of one year from the date of passing of the Act, that too only for the removal of difficulties arising in the implementation of the Act.

The Henry VIII clause was almost stopped in Britain after the recommendation, but the ban never went through.

India’s stance on the clause

In India, Henry VIII clause is sparingly adopted. It is an instance of excessive delegation and in the absence of policy guidelines discernible from the Preamble, the Scheme and other provisions of the Act make the Clause impermissible. 

Article 372 of the Indian Constitution enacted the clause which authorised the President to make such adaptations and modifications, whether by way of appeal or amendment of the laws so as to bring them in accord with the provisions of the Constitution. However, this power lapsed on 26th January 1953. The Seventh Amendment revived it under Article 372(A) for one year for exceptional reasons associated with the implementation of the state’s reorganisation plan. 

This clause was also enacted for similar reasons in the States Reorganisation Act, 1956, the Bombay Reorganisation Act, 1960, and the Punjab Reorganisation Act, 1966 and certain other laws passed for adjustment of the boundaries of certain states. 

The Court has mostly been ambiguous on the application of the clause. For instance, refer to the following cases:

1. In the case of Registrar of Co-operative Societies v. K. Kunjambu (1979), Section 60 of Madras Co-operatives Act, 1932, delegates power to the government to exempt, by a general or special order, any cooperative society from any of the provisions of this Act, or may direct that such provisions shall apply to such society with such modifications as may be specified in the order. It was held that the power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines enunciated in the preamble and the other provisions of the Act. Though a Henry VIII Clause, it’s not void on grounds of excessive delegation. 
2. In Jalan Trading Company v Mill Manzor Union of India, the Supreme Court held that Henry VIII Clauses are not valid. The Court quashed such a section and this type of delegation. 

Reasons for viewing the Henry VIII clause with suspicion

Administrative reasons

In the report of the Standing Committee on Justice and Community Safety, there are several reasons that have been identified and explain the need for and the justification behind viewing the Henry VIII Clause with suspicion:

1. It was stipulated that the power to amend or repeal any statute is considered to be an essential legislative function and hence, such delegation is legally unjustified. This is because it propagates a form of unhealthy democracy and amendments and modifications should only be introduced by way of Parliamentary debates and discussions. 
2. Further, it was identified that the Executive should not be given such unrestricted powers because it is not elected through the electoral process and is not directly accountable to the public.
3. Apprehension exists because after the enactment of the delegated legislation, the Parliament lacks authority indirectly modifying that legislation, nor can it decide the duration of commencement of operation of the legislation. It can only disallow the continued operation. Consequently, by the time the Parliament issues discontinuance, much harm would’ve already taken place.
4. Moreover, the frequency at which the Executive revokes the Henry VIII Clause is also a matter of concern. 

Due to these reasons, it is opined that the Henry VIII Clause should not be allowed as a tool of excuse in the hands of the Executive to perform the work of law-making in a sloppy manner, and not be held accountable for such actions.

Psychological reasons

However, there is another factor that the authors seek to highlight to explain the scepticism that exists against the presence of the Henry VIII clause. The reason has its basis in psychology. The fault lies in the nomenclature used for the clause present in the parent legislation and which gives broad discretionary powers to the Executive to amend or repeal any provision in parent statute. This is because given the history of the rule of King Henry VIII, not only does the usage of the term invoke an inadvertent negative bias but also is misleading. The nomenclature is misleading primarily due to three reasons:

1. Firstly, when Henry VIII was conferred the broad Executive powers to amend or repeal the statute to execute his own will, such powers were wide enough to repeal any or all of the statutes enacted within his jurisdiction. On the other hand, the so-called ‘Henry VIII Clause’ within the confines of present-day administrative law, does not usually provide such broad-ranging powers to the Executive.
2. Secondly, in his times, King Henry VIII was not barred from amending even the policy or essential features of the parent statute or any other statute in force. However, such limitation ordinarily exists in the Henry VIII clause of the present times. 
3. Thirdly, King Henry’s wide-ranging powers during his reign could not solely be attributed to his powers to amend any statute; instead, it happened due to the simultaneous conferment of judicial powers upon him as well. On the other hand, the Henry VIII clause does not usually confer such adjudicative powers upon the Executive. 

Therefore, an analogy of the clause which gives broad powers to the Executive to amend or repeal any statute to the tyranny that King Henry VIII exercised during his rule, through this clause, would be misplaced.

The validity of The Henry VIII clause: landmark judgments 

The vires of this clause have been challenged multiple times in courts of law since it exists in the Parent Act in the form of ‘removal of doubts or difficulty clauses’. The judiciary has generally accepted the validity of narrow Henry VIII clauses while unambiguity still reigns over the broad ones. 

Jalan Trading v Mill Mazdoor Union (1966)

In this case, Section 37 of the Payment of Bonus Act was challenged on the grounds that it was a Henry VIII clause and an example of excessive delegated legislation. The section vested powers in the Central Government Executive to make amends, consistent with the essence of the Act, for the removal of doubts and difficulties and such amends could not be subject to judicial scrutiny. 

Since the section permitted the Executive to go to the lengths of amending the Parent Act, it was considered to be a broad Henry VIII Clause. 

The Court held the Section invalid on several grounds:

1. It stipulated that by providing that the amended legislation must not be inconsistent with the Parent Act, does not save it from the vice of the delegation of legislative authority.
2. Power to remove doubts and difficulties by their own discretion would amount to exercise of legislative authority and that cannot be delegated to executive authority. 
3. Section 37(2) makes the decision of the Executive the final call, making it the sole judge of judging all the limitations stated above have been abided by or not. 

Gammon India v. Union of India (1974)

In this case, Section 34 of the Indian Contract Labour (Regulation and Abolition) Act, 1970 was challenged on the grounds that it amounted to the excessive delegation. It was an instance of a narrow Henry VIII Clause because it did not vest in the Central Government the power to amend the provision of the parent statute on the excuse of removing doubts and difficulties. 

The Court, while upholding the validity of Section 34, made a differentiation between the facts of the case from the case of Jalan Trading, stating that unlike in the former case, Section 34, in this case, did not: 

1. Contain the finality clause.
2. Allow the alterations to be made to the provisions of the Parent Act. 

Analysis 

The Court in Gammon India partially misread the Jalan Trading judgment when it applied the ratio of the Jalan Trading case and distinguished it on the basis of it. The Court in Gammon India Meant that as per the ratio of Jalan Trading Case, the mere existence of the broad Henry VIII clause does not make the clause invalid, rather, it is only when such clause is coupled with other aggravating factors such as the condition of finality attached to the broad Henry VIII Clause that the clause becomes invalid because of being an instance of excessive delegated legislation.

However, a thorough reading of the Jalan Trading verdict would reveal that any delegation to remove doubts and difficulties or making any alterations is in itself impermissible, and the presence of the finality clause was merely ‘accentuating’ the invalidity of the section rather being ‘causation’ of such decision. Therefore, it can be concluded from the verdict that the broad Henry VIII Clause is void. 

Bengal Iron Corporation v. Commercial Tax Officer (1993)

In this case, Section 42 of the Andhra Pradesh Act was challenged on the grounds of excessive delegated legislation. This section provided that when the transition is being made from an old Act to a new one if difficulty arises, the Executive is given the power to make rules on the basis of the issue and amends can be made to the Parent Act. However, rules inconsistent with the Parent Act cannot be made. This implies Section 42 is an example of both broad and narrow Henry VIII clauses. 

The Court upheld the section by making a contrast with the Gammon India and Jalan Trading judgments. The Court interpreted that since the current section does not have a finality clause that will make Bengal Iron the sole judge of its actions and since the absence characterisation was used to uphold Gammon India, Section 42 will be upheld on the basis of not containing such language. 

Analysis

This judgment showcases that the Court read the Gammon India case as if it sought to imply that it was solely the finality clause that influenced the decision of the court in the Jalan Trading case, which, as has been stated above, was not the case. Therefore, the court misread the interpretation and is a fallacious legal interpretation. 

Given the interpretation adopted by the court in the Gammon India case and the Bengal Iron case of the reasoning in the Jalan Trading case, two conclusions can be reached regarding the validity of the broad Henry VIII clause: 

1. Till the time the Supreme Court correctly reinterprets the reasoning in the Jalan Trading case to hold the broad Henry VIII Clause invalid in India, the decisions in Gammon India and Bengal Iron prevail because of it being legal. 
2. It can be stated that the interpretations of Jalan Trading judgment in Gammon India and Bengal Trading are merely obiter. In the latter cases, the legality of the broad Henry VIII Clause was not the issue, but the narrow one. 

Adopting the second conclusion, the inference would follow that the broad Henry VIII Clause is illegal in India. 

An analysis of the Supreme Court judgment in NCT Delhi v. Union of India (2019)

Facts

According to Article 239(A)(A) of the Constitution, the elected government of Delhi has the power to make laws on any of the subjects in the State and Concurrent List except land, public order and police. This limited restriction on the powers of the government makes sense since Delhi is the National Capital and the Union Government has its offices in Delhi. Hence, it is the Union Government’s responsibility to ensure law and order and manage the effective allocation of land. Delhi can be called a Quasi-State with certain restrictions on law-making powers of its governments. 

The Balakrishnan Committee Report, basis on which the said 69th Constitutional Amendment was made by inserting Articles 239(A)(A) and 239 (A)(B), recommended that the Administrator of Delhi shall act on the aid and advice on the Council of Ministers in respect to which the Legislative Assembly has powers to enact. 

Going by the recommendations of the Committee, it can be reasonably inferred that the intention of the committee was to have an elected government in Delhi, which will have the powers to make decisions on any of the subjects in the State and Concurrent List except those specifically excluded from the powers of the Government. Therefore, the Lt. Governor shall be bound by the aid and advice of the council of ministers of Delhi except in the case of matters relating to public order, police and land.

The Supreme Court in Shamsher Singh v. State of Punjab (1974) and Ram Jawaya Kapur v. State of Punjab (1955), has held that the Governor has to act on the aid and advice of the council of ministers of the state except in the cases where the Statute explicitly requires the Governor to exercise his powers indiscretion. 

However, in this case, the Lt. Governor of Delhi was acting critically in day-to-day affairs of the Delhi Government and stalling the functioning of the elected government, which was quite alarming as it was abrogating the decision-making powers of the government. This issue posed a threat to the federal spirit of our Constitution. In a democracy, the real power should lie with the elected representatives of the people.

Judgement

Democracy is enshrined as a core and fundamental value of the Indian Constitution and by encroaching upon the democratic right of the people by administering the government through a nominated representative of the Union actually destroys the heart and spirit of the Constitution. Article 239(A)(A) of the Constitution confers upon the people of Delhi, the right to elect their own representatives to manage and run the affairs of the State.

The Supreme Court of India, in its recent verdict, has held that Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the elected Government of Delhi. While holding so, the Court has observed that in a democracy, real power must vest in the elected representatives and Lt. Governor cannot interfere in every decision of the Delhi Government. Further, noting that there is no need for the Delhi Government to seek the permission of Lt. Governor in all matters.

Analysis

The Supreme Court’s judgment in National Capital Territory of Delhi v. Union of India correctly identifies representative democracy as a fundamental feature of the Indian Constitution and correctly interprets Article 239AA in a manner that, within the textual boundaries of the provision, strengthens representative democracy. 

Its analysis of the constitutional history of Delhi, and the application of constitutional principles to the interpretation of Article 239AA, repays close study. This is demonstrative of the reasons behind the improper and indirect application of the Henry VIII Clause can hurt democracy and the separation of powers in India. 

Indirect ways of enforcing the clause

The discussion regarding the validity or invalidity of the broad Henry VIII Act by the Indian judiciary has become largely academic. This is because the legislature has discovered some indirect ways to enforce the Clause. This is being done in two ways:

1. First, the legislature drafts the statute in a skeletal manner. Therefore, the individual provisions are broadly termed. This ensures that the Executive gets to exercise a significant amount of discretion, even if it is using the narrow Henry VIII Clause in main law in the form of ‘Removal of Doubts and Difficulties’ provision. 
2. The subtle and newly emerging manifestation of the broad Henry VIII clause is the power under the Parent Act to allow the Executive to clarify or interpret the meaning of the provisions given in the Parent Act. The clarification clause thereby indirectly empowers the Executive to amend the provisions of the main Act wherever the existence of ambiguity in the patent law provides such scope.

Recommendations and lessons for the judiciary

Irrespective of the ambiguity that the judiciary continues to have on this issue, the power of the broad Henry VIII clause is still being exercised by the Executive. Hence, the judiciary should unanimously accept the prima facie validity of the Clause. Further, the Judiciary should adjudicate upon the validity of the Clause on a case to case basis wherein the decision upon the validity should be influenced by factors such as the nature of the law in which the Henry VIII Clause is incorporated, the form and scope of the Clause. The validity of the broad Henry VIII Clause should be recognised, since, if the discretion conferred to the Executive is not wide enough to permit the Executive to amend the provisions of the law then, the independent utility of the clause will be absent. Due to the Clause being similar to the ‘power to make rules to bring the provisions into force’, the narrow Clause is refused by some scholars to be accorded the status of a Henry VIII Clause because of its narrow nature. The validity of the broad Clause becomes even more crucial due to this. Furthermore, the primary rationale behind incorporating the Henry VIII clause in the parent Act is to provide for contingencies of lack of foresight by the legislature despite it exercising all reasonable care and inquiries and contingencies of technicalities and complexities involved in the new legislation. Therefore, the broad Henry VIII clause is a necessary evil to ensure flexibility. Presently, the Parliament has a variety of issues to enact laws upon and is overburdened with the job of enactment and amendment. It must be borne in mind that the disruptions in the Parliament have become a common landscape, and coalition politics is on the rise due to which arriving at the consensus which is required for making or amending laws has become difficult. In the light of these circumstances, the Court ought to unambiguously accord legal recognition to the broad Henry VIII clause.

Conclusion

Ideally, the Henry VIII clause should have certain limitations regarding the scope imposed upon it. These constraints can exist in the form of temporal restrictions, procedural guidelines, impermissibility to amend the essence of the underlying policy of the parent statute, requirement of laying the delegated law so enacted before the Parliament and/or limiting the power of amendment of provisions in the Act up to one or a few statutes, among other possibilities. Most importantly, the authority which can exercise the powers under the Henry VIII clause on the behalf of the Executive ought to be carefully chosen.

Therefore, the debate under the realm of Indian Administrative Law must shift from asking the elementary question regarding the legality of the narrow and broad Henry VIII clause to adjudicating upon the validity of such clause on a case to case basis. This is because deciding upon the vires of the Henry VIII clause without looking at the context of its application is like reading the label on a pickle bottle which has no meaning on its own unless attached to the bottle on which the label is placed.

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: