HENRY CLAUSE VIII
Introduction: -
The general rule is that the legislature itself should discharge its primary legislative
functions and should not delegate them to other bodies. But, in some enactments
provisions are made to delegate certain powers to the executive. The delegation
here is broad & without restriction.
For e.g. The National Insurance Act 1911 mentions the powers of the Insurance
commissioners. It also provides that they may do anything that they thought
necessary and expedient in case of any difficulty in implementing the provisions.
'To that extent may make modifications, wherever necessary'.
This blanket power is nicknamed Henry VIII Clause. The executive is the
delegatee and if power is granted to modify the provisions themselves, there is to
that extent an indirect abdication of legislative functions in favour of Executive.
Origin: -
A review of English Constitutional history shows how the king Henry VIII was
asserting his powers in an authoritarian manner & how he was 'modifying' the
provisions to suit his conveniences. Hence whenever such powers are exercised by
executive, it is styled Henry VIII powers.
Modern legislative Acts generally provide for two types of such removal of
difficulties.
•One is to empower the executive to remove difficulties, consistent with the
parent Act. This is to adjust minor difficulties & is not- objectionable e.g.
S/128 State Reorganization Act. 1956.
•However, the second type is very wide and even to modify the parent Act.
This may be for a limited purpose. It is here that Henry VIII. King of
England became authoritarian. He was a despot under law.
What he did was he extended this power to an extraordinary degree by
constitutional means, to further his personal ends. Of course he was not acting
unconstitutionally.
In India: -
In India, though the circumstances are different, the executive may don on itself
more powers.
