Question

Power conferred to government to modify the provision of the existing statutes for the purpose of removing difficulties is known as

• A. Ouster clause
• B. Non obstante clause
• C. Henry VIII clause
• D. None of the above

Hint:

A Henry VIII clause is typically phrased as: "If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, make such provisions as appear to be necessary for removing the difficulty."

Answer 1

The Correct Option is C

Step 1: Understanding the Question:
The question asks for the specific administrative law term used to describe a statutory provision that empowers the executive to modify the parent Act or other existing statutes to remove difficulties in implementation.

Step 2: Key Legal Principles and Approach:
We must examine the types of clauses used in delegated legislation, focusing on the historical and constitutional implications of giving the executive power to amend primary legislation passed by Parliament.

Step 3: Detailed Explanation:

• Definition of Henry VIII Clause (Option C): A "Henry VIII clause" is a provision in a primary statute that delegating power to the executive to amend or modify the provisions of the primary Act itself, or of other Acts, usually for the stated purpose of "removing difficulties."

• Historical Origin: The clause is named after King Henry VIII of England, who was famous for preferring to govern by royal proclamations that had the force of Acts of Parliament (specifically through the Statute of Proclamations, 1539).

• Constitutional Concerns: Because these clauses allow the executive to bypass the legislative process to modify primary laws, they are viewed with great suspicion by courts as a threat to the separation of powers and the rule of law.

• Judicial Limitations: In India, courts permit Henry VIII clauses (often called "removal of difficulties clauses") only if they are limited to making minor, non-essential modifications to give effect to the statutory policy.

• The executive cannot use this clause to alter the essential policy or structure of the Act.

• Other options:

• An "ouster clause" is a provision that attempts to exclude the jurisdiction of courts.

• A "non obstante clause" is a provision that allows a section to override other conflicting laws.

• Therefore, Option (C) is the correct answer.

Step 4: Final Answer:
The power of the executive to amend primary legislation to remove difficulties is known as a Henry VIII clause, making Option (C) the correct answer.