Need for Removal of Difficulty clauses

A 'removal of difficulty' clause empowers the government to make provisions to remove any difficulty which may arise in putting the law into operation. Such a provision is usually inserted in a statute that is being enacted for the first time since it may not be possible to anticipate all the difficulties that may arise in the course of its implementation.

It is also referred to as the Henry VII clause who was then King of England in the 16thcentury and used the provision as an instrument of a servile Parliament for the purpose of removing difficulties. In RoD order, power is sometimes conferred on the government to modify the provisions of the existing statutes for the purpose of removing difficulties. When the legislature passes an Act, it cannot possibly foresee all the difficulties that may arise in implementing it.[1] The Executive, therefore, is empowered to make necessary changes to remove such difficulties.

The following passage from the case of Madeva Upendra Sinai v. Union of India throws light on the inevitable need and importance of RoD provisions:[2]
To keep pace with the rapidly increasing responsibilities of a Welfare State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexity. It is nearly impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law[3].

This is particularly true for legislation which gives a new dimension to socio-economic activities of the State or extends [existing laws] to new territories […]. In order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time-consuming amendatory process, the legislature sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, [to make] implementation effective, without touching its substance. That is why the “removal of difficulty clause” […] finds acceptance as a practical necessity, in several Indian statutes of the post-independence era.

Position of RoD Orders Judicial Precedent

RoD order is a form of delegated legislation and is interpreted as such, subject to the limit of “excessive delegation”. One simple version of the RoD clause that is adopted in some acts authorizes the making of RoD order which is not inconsistent with the provisions of the parent Act. Such a provision is valid vis-a-vis the doctrine of excessive delegation if the power is exercised in a way that does not change the basic policy of the Act in question.[4] However, a statutory provision empowering the making of an RoD order, but making the order of the government final has been held to be invalid on the ground of excessive delegation.[5]

From a simplistic reading of the RoD clause mentioned above, and its judicial interpretation,[6] it is observed that RoD order may be made under a statute subject to the following requirements being met:

1. Difficulty:
   arising of a 'difficulty' is the sine qua non, or the condition precedent, for exercising power under RoD clause. Whether a difficulty has arisen or not is an objective fact, and not merely a matter of subjective satisfaction for the government. In case of a challenge to RoD order, the court must be satisfied that difficulty has in fact, arisen and that it needs to be removed, making the order necessary.[7]
    
2. In giving effect to the Act:
   the difficulty in question must be a difficulty arising in giving effect to the provisions of the parent Act, and not any difficulty arising aliunde, or an extraneous difficulty. Thus, an order seeking to remove a difficulty which has not yet arisen, or a difficulty which has arisen under some other Act, would be ultra vires.
    
3. Necessity:
   in removing the difficulty, the government can exercise the power only to the extent it is necessary for giving effect to the Act. Thus, only minor changes can be made in the parent Act; its basic or essential provisions cannot be tampered with;[8]
    
4. Scope:
   A RoD order must not be inconsistent with any provision of the parent Act. Importantly, RoD clause cannot be used as a substitute for rule-making power, which is a separate, statutorily conferred power.[9]

Notably, in the case of CIT v. Straw Products,[10] the power conferred on the Central Government to make orders or issue directions for removal of difficulty in the working of an Act was held to be a power to make delegated legislation with retrospective effect.

End-Notes:

1. John Salmond: Jurisprudence, 9th edition, London, Sweet & Masewell Limited
2. Madeva Upendra Sinai v. Union of India , AIR 1975 SC 797.
3. Prabhat Kumar Sharma and Others v. State of U.P and Others (Special Appeal No. 258 of 1996)
4. See Gammon India Ltd. v. Union of India, AIR 1974 SC 960
5. Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691.
6. State Bank of Travancore v. Goodland Plantations Pvt. Ltd., AIR 1980 SC 650.
7. For instance, in Madeva Upendra Sinai v. Union of India, AIR 1975 SC 797, and Straw Products Ltd. v. Income Tax Officer A Ward Bhopal, AIR 1968 SC 579 [both matters pertaining to direct taxation], the Supreme Court declared the removal of difficulties orders invalid because there were no 'difficulties' which required removal and, therefore, the orders were made in excess of the power conferred under the respective Acts. Also, the government, in both cases, attempted to change the fundamental schemes of the Acts in question.
8. Madeva Upendra Sinai v. Union of India, AIR 1975 SC 797.
9. Krishnadeo Misra v. State of Bihar, AIR 1988 Pat 9.
10. CIT v. Straw Products, AIR 1966 SC 1113.