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HENRY VIII CLAUSEAdministrative law

Submitted to Mrs. Kayvalya

By: P.Lavanya1282057 (BBA.LLB)

TABLE OF CONTENTS:INTRODUCTION.3ABOUT HENRY VIII.4WHY HENRY VIII CLAUSE..4HENRY VIII CLAUSE- THE PERIPHERY5INDIAN SCENARIO.6CASE: JALAN RADING CO.v. MILL MAJDOOR SABHA7CASE: GAMMON INDIA LIMITED.v. UNION OF INDIA.8CASE: PATNA UNIVERSITY v. AMITA TIWARI.8CONCLUSION10

INTRODUCTION

Administrative Law and ProcedureAdministrative law is the body of law that allows for the creation of public regulatory agencies and contains all of the statutes, judicial decisions, and regulations that govern them. It is created by administrative agencies to implement their powers and duties in the form of rules, regulations, orders, and decisions. Administrative procedure constitutes the methods and processes before administrative agencies, as distinguished from judicial procedure, which applies to courts[footnoteRef:1]. [1: Legal dictionary ]

DELIGATION OF LEGISLATIVE POWERS

1) Constitutionality of the delegation of legislative power

2) Ultra Vires (Substitutive and procedural)

3) Retrospective Operation

4) Sub delegation

5) Publication

6) Henry viii clause

7) Delegation of taxing power

This write up would deal with the Henry VIII clause.

WHO WAS HENRY VIII?

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[footnoteRef:2]. [2: BBC world history]

WHY HENRY VIII CLAUSE?

It was called the Henry VIII clause because that King was regarded popularly as the impersonation of executive autocracy and the clause reflected, in popular eyes, the famous Statute of Proclamations, 1539, which gave him the power to legislate by proclamation. The Committee said: The purpose of Henry VIII was to enlarge his powers to make proclamations having the force of law. The sole purpose of Parliament was to enable minor adjustments of its own handiwork to be made for the purpose of fitting its principles into the fabric of existing legislation and of meeting cases of hardship. It was repealed on Henrys death in 1547[footnoteRef:3]. [3: Cd. 4060; pages 36 and 61]

HENRY VIII CLAUSE- THE PERIPHHERY

What is done? Ammendment of primary legislation by using delegated (secondary) legislation.

Instances of exceptional delegation

Powers to legislate on matters of principle

Power to amend acts of principle

Power conferring such a wide discretion that it goes limitless

Power to make rules without being challenged in the court

REMOVAL OF DIFFICULTIES Power conferred on the government to improvise the provision so as to remove the difficulties

Generally there are two types of removal of difficulties

The narrow approach which empowers the act to remove the difficulties, provided it is in consonance of the parent act

The wider approach, in the name of removal of difficulties can even modify the parent act.

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 intoaccord with the provisions of this Constitution, the President may by order make suchadaptations 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 inthe 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.

POWER TO MODIFY THE STATUTE

This is consider to be the most drastic form of delegation. In the power of inclusion or exclusion also, the power of modification is involved. Another instance is the declaration contained in many statutes that the rules made under the act would be operative even if inconsistent with some other enactment. In some cases, the power to modify a statute is conffered on the executive for making necessary adjustments while extending it to new areas. The most widely criticized form of delegating amending power is calledthe Henry viii clause In this type of delegation, the legislature gives power to the executive tomake modification in the act to meet any difficulties. The committee on ministers powers has poited 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 demonstably essential and only for a period of one year fromthe passing of the act[footnoteRef:4]. [4: Orient weaving mills v. union of india, AIR 1963 SC 98.]

The henry viii clause can be found in many statutes[footnoteRef:5], the general formula that is used to [5: E.g: secs 120 and 128 of the states recognition act, 1956; secs43 of the insurance corporation ltd.Act, 1956 and secs. 376(1) of the payment of bonus act, 1956 (which was stuck down in jalan trading co. v. mill mazdoor union, air 1967 sc 691. ]

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[footnoteRef:6]. [6: Administrative law by N.K. jaykumar pg. 18 ]

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[footnoteRef:7] 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. [7: Jalan Trading Company v. Mill Majdur Sabha, AIR 1967 SC691]

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[footnoteRef:8] 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[footnoteRef:9], the relevant statute enabled the chancellor to issue the directions to universities "in the administrative and academic interest." [8: Gammon India Ltd. V. Union of India, (1974) 1 SCC 598] [9: Patna University v. Amita Tiwari, (1997) 7 SCC 198.]

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." Conclusion:- Delegated legislation permits the body beneath parliament to pass their own legislature. Delegated legislation is the legislation made by person or bodies other than parliament. That person or body must be permitted by the parliament by an Act passed by the parliament. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament.

In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created. There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Delegated legislation, also referred to as secondary legislation. Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, In order to delegate its powers to any person or body, parliament has its own limitations. Parliament cannot delegate all its powers to any Administrative authority. There are some powers which cannot be delegated. Those powers which can be delegated can come into the preview of the Doctrine of permissible limits.

CONCLUSIONDelegated legislation is valid as long it: Does not contravene the constitutional provision Does not violate the provisions of the parent act Does not put any unreasonable restrictions.