Constitutionality Of Henry VIII Clauses In Fiscal Legislation: A Study Under The Ministry Of Finance And The Doctrine Of Separation Of Powers
- IJLLR Journal
- May 31
- 2 min read
Abisek R, Tamilnadu National Law University (A State University Established by Act No. 9 of 2012) Navalurkuttapattu, Srirangam (TK), Tiruchirappalli - 620009, Tamil Nadu
CHAPTER 1 - INTRODUCTION
Delegated legislation is an important characteristic of the modern administrative state, especially in taxation. With the growing complexity of economic regulation, Parliament delegates law-making powers to the government in order to maintain flexibility. Notably, controversial Henry VIII clauses give the executive power to amend or repeal primary laws by subordinate means. The first of these was introduced in the 1539 Statute of Proclamations, and marks a break with traditional notions of political legitimacy and the separation of powers.
In India, Henry VIII clauses are usually found as "removal of difficulties" or "consequential amendment" provisions in Finance Acts and tax statutes. They allow the Ministry of Finance to not only give effect to but also alter primary legislation. These include Section 119 of the Income-tax Act, 1961, which allows the Central Board of Direct Taxes (CBDT) to issue binding circulars and instructions, and "removal of difficulties" provisions in the GST statutes that empower the Central Government to remove inconsistencies through executive orders, potentially overriding the primary legislation.
The Indian Constitution, although not expressly prescribing a strict separation of powers doctrine, institutionalises the doctrine through its tri-fold classification of governmental power into the legislative, executive and judicial branches. Articles 53, 73, 122, 154, 163, 212 and 245, read with the scheme of the Constitution, show that each organ is to perform its primary constitutional role without usurping the role of another. The power to make laws, under Article 245, is vested in Parliament; delegation of this power to the executive is constitutionally permissible only to the extent permitted by the judiciary.
