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Constitutionality of Henry VIII Clause An Overview

The expression Henry VIII Clause refers to executive authority. Generally any legislature, while delegating its power of law making to the executive does not confers power on the executive to amend or vary the Parent Act.

If a clause is inserted in the statute conferring power on the executive to amend or vary the Parent Act, it is called Henry VIII clause. In England, during the period/regime of the king Henry VIII (1509-1547), several laws were passed empowering the executive to amend the Parent Act. This type of delegated legislation is popularly known or nicknamed as Henry VIII Clause type of delegated legislation. It implies a naked delegation of essential legislative power to the executive by the legislature.

Objective of Henry VIII Clause: the main object of the Henry VIII Clause type of delegated legislation is to remove certain difficulties. King Henry VIII succeeded in removing all difficulties in the enforcement of his will by resorting to/ adopting this type of delegation. E.g. National Insurance Act, 1911 in England. The Henry VIII Clause type of delegated legislation should be conferred on the executive only in exceptional cases to remove difficulties.

Position in England:
In England, National Insurance Act, 1961 empowered the insurance commissioners to do anything that they thought necessary and expedient if any difficulty arose in bringing the Act into operation and for that purpose modify the provisions of the Act itself. In England such type of delegations could not be challenged, as the parliament is superior there. Hewart in his book ‘The New Despotism’ published in 1929 criticized this type of delegation severely.

The committee on ministers power also criticized the use of the Henry VIII Clause and suggested that this clause should be used for the sole purpose of bringing an Act and that too only when demonstrably essential. In October 1929 the parliament appointed a committee on minister's power to enquire into the subject of delegated legislation. The committee in its report pointed out that such broad delegation is against the principles of parliamentary government and the permissible limits of delegated legislation.

Following recommendations were made by the committee:

  1. Henry VIII type of delegated should be avoided, as far as possible and to be restored only sparingly under exceptional and extraordinary circumstances in which it was 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.
After this recommendation of the committee, the Henry VIII Clause type of delegation was almost stopped in Britain.

Position in India: In India Henry VIII Clause type of delegation was sparingly adopted in past. Frequently power is given to modify the provisions of the existing laws in so far as it may appear necessary for the purpose of bringing the Act in force. This sort of power implies an express power to amend or repeal the laws other than the Act. The clause giving this power is nick named Henry VIII Clause after the Tudor autocratic British King. The clause clearly implies delegation of essential legislative functions in a measure. It is a clear instance of excessive delegation and in the absence of policy guidelines discernible from the Preamble, the scheme and other provisions of Act makes the clause impermissible.

The Donnoughmore Committee deprecated an easy resort to it; and recommended that it should be resorted to only sparingly under exceptional circumstances in which it was deemed absolutely necessary. The clause is seldom found in any British statute enacted after the report of the committee. In India too it is seldom enacted. The clause was incorporated in Article 372 of the Constitution which authorized the President to make such adaptations and modifications, whether by way of repeal or amendment of the laws as to bring them in accord with the provisions of the Constitution. This special and exceptional power was lapsed on 26 January, 1953.

The seventh Amendment revived it under article 372 (A) for one year for exceptional reason associated with the implementation of the state's reorganization plan. The clause was also enacted for similar exceptional reasons respectively, in the states Reorganization Act, 1956, the Bombay Reorganization Act, 1960 and the Punjab Reorganization Act, 1966 and certain other laws passed for adjustment of the boundaries of certain states. A Henry VIII clause is not permitted but a provision may be given a name just to brand it.

When the legislative objectives are clear and guidelines are discernible from the statutory Preamble and statutory text of a law, a provision delegating legislative powers may still be not impermissible held in Registrar of Co-operative Societies v. K. Kunjambu{1}. Section 60 of Madras Cooperatives Societies Act 1932, delegates to the government power 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.

Though a near Henry's VIII clause, it was upheld in view of the discernible guidelines contained in the Act mentioned in Registrar of Co-operative Societies case. Section 120 and 128 of the state Reorganization Act, 1956 contained such a clause (now repealed). Article 392 (1) of the Constitution (42nd Amendment Act, 1976) empowered the President to make such provisions including any adoption or modification of any provision of the Constitution as appeared to him to be necessary or expedient for the purpose of removing the difficulties in the constitutional provisions ( repealed by the constitution 44th amendment Act, 1978).

In Jalan Trading Company v. Mill Manzor Union in India {2}, Supreme Court held that Henry VIII Clauses are not valid. There is no statute containing Henry VIII Clause type of delegation. The supreme court of India quashed such type of delegation.

Hire and fire rule
In case of West Bengal State Electricity Board v. Desh Bandhu Ghosh {3}, regulation 34 of west Bengal state electricity regulation was challenged on the ground that it was arbitrary and violative of Article 14 of the Constitution. Under regulation 34, it was provided:
In case of a permanent employee, his service may be terminated by serving three months notice or on payment of salary for the corresponding period in lieu thereof’. Declaring the said regulation as arbitrary and ultra vires, the Supreme Court said, ‘on the face of it, the regulation is totally arbitrary and confers on the board a power which is capable of vicious discrimination. It is a naked 'hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry viii clause so familiar to administrative lawyers.

Similar is the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly{4}. In this case Rule 9 (1) of the Central Inland water transport corpn. Ltd. (Service, Discipline and Appeal) Rules, 1979 was challenged, which provides:
The employment of a permanent employee shall be subject to termination on three month's notice on either side. The notice shall be in writing on either side. The company may pay the equivalent of three month's basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice.

Declaring the provisions as ultra vires, arbitrary and unreasonable, the Supreme Court said:
No alter description of Rule 9(1) can be given than to call it the Henry VIII Clause. It confers absolute and arbitrary power upon the corporation. It does not even state who on behalf of the corporation is to exercise that power. There are no guidelines whatever lay down to indicate in what circumstances the power given by Rule 9 (1) is to be exercised by the corporation. No opportunity whatever of a hearing is at all to be afforded to the permanent employee whose service is being terminated in exercise of this power.

It is submitted that the court, in these circumstances rightly described rule 9 (1) as the Henry VIII Clause.

Conclusion:
The use of so-called Henry VIII Clause conferring power on a minister to modify the provisions of Acts of parliament should be abandoned in all but most exceptional cases and should not be permitted by parliament except upon special grounds stated in the ministerial memo random to the bill. Henry viii clause should never be used except for sole purpose of bringing the Act into operation but subject to the limitation.

References:

  1. Dr. J.J.R. UPADHAYA, Administrative Law (Central Law Agency, 30 D/1 Motilal Nehru Road, Allahabad, 10th edn. 2016).
  2. S.P Sathe, Administrative Law (LexisNexis, 14th Floor, Vijay Building, 17 Barakhamba Road, New Delhi-110001, 7th edn. 2004).
  3. M.C. Jain Kagzi, The Indian Administrative Law (Universal Law Publishing Co.Pvt. Ltd., New Delhi, 7th edn. 2014).

End Notes:

  1. AIR 1980 SC 350
  2. AIR 1967 SC 497
  3. AIR 1985 SC 722
  4. AIR 1986 SC 1571

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