Administrative Law
Modification and Removal of Difficulties Clauses: Meaning of Modification, Limits and Landmark Cases
Two related powers allow the executive to adjust a statute in the course of working it: the power to apply or extend a law with modifications, and the power to make orders removing difficulties that arise in giving effect to it. Both are useful, because no legislature can foresee every obstacle to implementation, and both are dangerous, because a power to adjust a statute shades easily into a power to rewrite it. The Indian courts have kept them useful by keeping them narrow. The controlling idea, settled within a few years of the Constitution, is that modification means alteration of detail and not of policy, and that a difficulty-removal power serves the Act's scheme and cannot rearrange it. This topic works out that idea and the cases that established it.
1. The Two Powers
A modification clause empowers the executive, in extending or applying an enactment to an area, class or situation, to do so 'with such restrictions and modifications as it thinks fit'. It is characteristic of extension statutes, of laws applied to newly acquired or reorganised territories, and of provisions applying one enactment to the subject matter of another.
A removal-of-difficulties clause empowers the Government, if any difficulty arises in giving effect to the provisions of the Act, to make such provision or give such direction as appears to it necessary or expedient for removing the difficulty. It is usually qualified in three ways: the order must be not inconsistent with the provisions of the Act, it may be made only within a stated period from the commencement of the Act, and every such order must be laid before the legislature. These qualifications are themselves a recognition of the power's exceptional character, and they are the principal safeguards against its abuse.
Both powers belong to the family of exceptional or Henry VIII delegation, and both are tested by the same question: is the executive carrying out the legislature's decision, or altering it?
2. The Meaning of Modification
The scope of a modification power was settled in the leading decision of 1954, which applied the reasoning of the reference of 1951 to a concrete notification.
📖 Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569 Facts: Section 3(1)(f) of the Patna Administration Act, 1915 empowered the Provincial Government, by notification, to extend to Patna the provisions of any section of the Bengal Municipal Act, 1884, subject to such restrictions and modifications as it thought fit. Acting under it, the Government extended a modified version of section 104 of the Bengal Act, altering the scheme by which a tax could be imposed so as to dispense with the safeguards that section had provided for the ratepayers. Held: The Supreme Court struck down the notification. Reviewing the opinions in In re Delhi Laws Act, 1912, the Court held that an executive authority can be authorised to modify either existing or future laws, but not in any essential feature. Exactly what constitutes an essential feature cannot be stated in the abstract, but it certainly cannot include a change of policy. The modification made here had altered the policy of the section extended, by removing the protective procedure, and therefore exceeded the power. Ratio: The governing authority on modification clauses. 'Modification' means adjustment of detail to fit the law to its new application; it does not extend to altering an essential feature, and never to changing the policy of the enactment being extended. |
Three consequences follow from Rajnarain Singh. First, the width of the words 'as it thinks fit' does not enlarge the power: however subjectively framed, the clause is read as confined to non-essential changes. Second, the test is one of substance: the question is not how extensive the textual alteration is but whether it touches a matter of policy, so that the deletion of a single protective proviso may be fatal while a long list of drafting adaptations may be harmless. Third, a power to modify is not a power to repeal or amend; that further step was held in Delhi Laws Act to exceed the permissible limit.
3. Removal of Difficulties: The Limits
Removal-of-difficulties clauses have been upheld in principle and confined in application. A difficulty must be a genuine obstacle to giving effect to the Act, arising in its implementation, and the order must be directed to overcoming that obstacle. Three things such a clause does not authorise: resolving a question of construction with conclusive effect, supplying an omission the legislature made deliberately, and altering the allocation of powers or the policy the Act has settled.
📖 Madeva Upendra Sinai v. Union of India, (1975) 3 SCC 765 Facts: The Taxation Laws (Extension to Union Territories) Regulation, 1963 extended the Indian income-tax law to Goa, Daman and Diu after their liberation. Section 4 of the Regulation empowered the Central Government, if any difficulty arose in giving effect to the provisions of the extended Act, to make such provisions or give such directions as appeared necessary for the removal of the difficulty. An order made under it dealt with the computation of capital gains by adopting a basis that altered the position of assessees in the newly added territory. Held: The Supreme Court construed the power narrowly. A removal-of-difficulties clause is intended to enable the executive to overcome practical difficulties of implementation, and cannot be used to effect a change in the policy of the law or to legislate afresh on a matter the statute has dealt with. The power is not a general power to amend the Act, and an order that goes beyond removing a difficulty and instead alters the substance of the liability is beyond the clause. Ratio: A difficulty-removal power is confined to implementation. It cannot be used to reshape substantive liability or to supply a new legislative scheme for the extended territory, and the executive cannot determine for itself, conclusively, what the extended Act means. |
The same limits appear in the other leading decisions on such clauses. In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Union, AIR 1967 SC 691, a clause permitting the Government to remove not only difficulties but doubts, and declaring its order final, was struck down, because it allowed the executive to determine conclusively what the Act meant and excluded the courts from that question. In Straw Board Manufacturing Co. Ltd. v. Gutta Mill Workers' Union, AIR 1953 SC 95, the Court emphasised that an order under such a clause must relate to a difficulty actually arising in the working of the Act and cannot be used to enlarge the authority the statute confers. And in State of West Bengal v. Anindya Sundar Das, the Supreme Court held that a removal-of-difficulties power could not be used by a State Government to take over the power of appointment of Vice-Chancellors which the statute had vested in the Chancellor: a clause that serves the Act's scheme cannot redistribute it.
4. The Safeguards
- Consistency requirement. The common formula that the order must be 'not inconsistent with the provisions of the Act' is read as a substantive limit, confining the order to what the Act's own scheme supports.
- Time limit. Confinement to a period from commencement, commonly two or three years, reflects the transitional purpose of the power; an order made after the period has expired is without authority.
- Laying before the legislature. Orders under such clauses are usually required to be laid, bringing them within the ordinary machinery of legislative scrutiny.
- Judicial review. The existence of a difficulty, and whether the order is directed to removing it, are justiciable; a finality clause does not oust review, as Jalan Trading establishes.
- Publication. An order affecting the public must be published in the manner the Act prescribes before it can bind.
5. What These Clauses May and May Not Do
Permitted | Not permitted |
|---|---|
Adapting the language of an extended enactment to fit local institutions and terminology | Altering an essential feature or the policy of the enactment (Rajnarain Singh) |
Supplying transitional and consequential arrangements on commencement or extension | Supplying an omission the legislature made deliberately |
Overcoming practical obstacles to implementation | Reshaping substantive liability under the guise of removing a difficulty (Madeva Upendra Sinai) |
Making orders within the period and consistently with the Act | Resolving questions of construction with conclusive effect (Jalan Trading) |
Adjusting machinery so that the Act can operate as intended | Redistributing powers the Act has allocated to named authorities |
Acting subject to laying and to judicial review | Repealing or amending statutes at large |
⚠ Modification clauses and difficulty clauses are read the same way The two powers are drafted differently but construed alike, and the reason is that both are exceptions to the ordinary rule that only the legislature alters legislation. A modification clause is confined to changes that leave the policy intact; a difficulty clause is confined to steps that give effect to the policy. In both, the enquiry is the same and is one of substance rather than form: does the order carry out what the Act decided, or does it change it? An order answering the second description fails whichever clause it purports to be made under. |
6. The Position in Summary
- A modification clause permits an enactment to be extended or applied with restrictions and modifications; a removal-of-difficulties clause permits orders to overcome obstacles in giving effect to an Act.
- Modification means adjustment of detail. It cannot touch an essential feature and can never change the policy of the enactment (Rajnarain Singh), and it does not extend to repeal or amendment.
- A difficulty-removal power is confined to practical difficulties of implementation and cannot be used to alter substantive liability, supply a new scheme, or resolve questions of construction conclusively (Madeva Upendra Sinai; Jalan Trading).
- Such clauses cannot redistribute powers the Act has allocated, as the Vice-Chancellor appointment case shows.
- The usual safeguards are the consistency requirement, a time limit, laying before the legislature, publication and judicial review, and a finality clause does not exclude the courts.
7. Related Topics and Provisions
- Henry VIII Clause (Topic 32): the family of exceptional delegation to which both powers belong.
- In re Delhi Laws Act (Topic 29): the source of the narrow reading of 'modification'.
- Power to Exempt under Delegated Legislation (Topic 36): the companion power to relieve from a statute's operation.
- Doctrine of Excessive Delegation (Topic 27) and Essential Legislative Function (Topic 28): the limits these clauses press against.
- Laying of Rules Before Legislature (Topic 40): the scrutiny to which such orders are ordinarily subject.
- Constitution of India: Articles 245, 246 and the Seventh Schedule.