A PTRD (Power to Remove Difficulties) CLAUSE
“Power to remove difficulties.-(l) If any difficulty
arises in giving effect to the provisions of this Act, the Central Government
may, by order, published in the Official Gazette, make such provisions, not
inconsistent with the provisions of this Act, as may appear to be necessary for
removing the difficulty:
Provided that no order shall be made under this
section after the expiry of two years from the commencement of this Act.”
(2) Every order made under this section shall, as soon
as may be after it is made, be laid before each House of Legislature.
Introduction
We see such kind of a provision in most of the Statutes or
even the Constitutions (See Article 392 of the Constitution of India). However,
we seldom pay heed or importance to them. These kinds of provisions are mostly
at the bottommost parts of any Statute. Henceforth these provisions/clauses
shall be referred to as PTRD Clauses (Power to Remove Difficulties Clauses).
For the sake of simplicity, the author would use the abovementioned
Clause as a sample/base for conducting the Interpretative Process in relation
to the PTRD Clause. This shall involve the following components: -
PART I
“If any difficulty arises in giving effect
to the provisions of this Act”
The provision starts with “if” meaning thereby that the
provision shall be applicable only in certain contingencies i.e. when any difficulty
arises in giving effect to the provisions of a Legislation. It is to be noted
that “difficulty” and “giving effect to” have not been defined
anywhere. Further, the provision talks about ‘giving effect to the
provisions of this Act’. Thus, “giving effect to” must be read in
the context of this Act only and not any other law or context. Thus, the scope
of “difficulty” is also constricted by resorting to such interpretation.
PART II
“the Central Government may, by order,
published in the Official Gazette”
This signifies that if any difficulty arises in giving effect
to the provisions, the Executive has the power to publish such Order in the
Official Gazette. The length and breadth of the power referred to in here is
provided in the next part. Further, the conscious usage of word “Order”
by the Legislature is also pertinent. Orders may be judicial or executive. In the
instant scenario, the same clearly signifies sub-delegation of power and restricts
the scope of the power vested with the Central Government.
PART III
“make such provisions, not inconsistent
with the provisions of this Act, as may appear to be necessary for removing the
difficulty”
It can be said that the Executive may pass an Order to make
such provisions that are not inconsistent with the provisions of the said
Legislation for removing the difficulties. Suffice it to observe that this “Order”
is in nature of sub-delegation as the same, for the sake of obviousness, cannot
connote a Judicial Order in the present context.
PART IV
“Provided that no order shall be made under
this section after the expiry of two years from the commencement of this
Act”
The Proviso unequivocally provides for purgation of utility
of this Clause after a stipulated time-period. Thus, henceforth this Part may
be called as “Sunset Proviso”.
PART V
“Every order made under this section shall, as
soon as may be after it is made, be laid before each House of Legislature”
This makes it clear that any Order passed by the Executive under
this provision shall have to pass through the scrutiny of Legislature and it
would be open for the Legislature to look into the same. It is interesting to
note that the words used in the provision are “laid before”. For what purpose
the Order is to be laid before the Legislature has not been specified. Thus, to
annul or modify the changes made by the Executive by virtue of the PTRD Clause,
in my opinion, the Legislature shall have to enact the necessary law.
From the discussion made hereinabove, following important
points emerge: -
1. The legislative intention is, clearly, to leave the scope
and amplitude of the purport of “difficulty” and “giving effect to”
wide open.
2. The Executive may frame consistent sub-delegations for
removing the difficulties in implementation of the legislation.
3. Such power has a Sunset Proviso stipulating a
definite time-period for its exercise and any such Order is to pass the
scrutiny of the Legislature.
Sunset Proviso
A PTRD Clause has the power to change or restrict or
expand the scope of any provision of a Legislation but only to the extent the
same is not inconsistent with the said Legislation. The PTRD Clause grants
power of wide amplitude and discretion and thus, the Sunset Proviso acts as
kind of check upon the exercise of such power. Another reason that may prompt the
Legislature to insert a Sunset Proviso could be that two years or three years
is enough time-period to see along the implementation of any Legislation. Thus,
if any problem arises in “giving effect to” or the implementation of a
Legislation, then the Executive has been vested with the power to make the
necessary amends in the wordings of the Legislation to suit the needs. The
Sunset Proviso ensures that that the power to remove difficulties cannot be
used for ulterior or irrational purposes after lapse of a certain time-period.
In the name of removing difficulties, the Executive cannot be allowed to perpetrate
changes in the fundamentals of any Statute that may have long term implications
and it is for this reason that an additional sub-clause along with the PTRD
Clause is inserted stating any such Order passed by the Executive must be laid
before the Legislature.
Comments
After understanding the above, a bare reading of the PTRD
Clause would encapsulate that one of the intentions of the Legislature was
to make sure that an Act/Statute does not remain unimplemented or not effected
merely because of some technical problems in the wordings of the Statute or due
to some practical difficulty that the Legislature could not foresee. The power
has been vested with the Executive to cure such defects and implement the
Statute with full force and vigour. The PTRD Clause is a kind of blank cheque given
to the Executive for a fixed period of time to make sure that the Statute does
not suffer from any kind of infirmity or disability in its effectuation.
The Power to Remove Difficulties (PTRD) Clause seems
to be an application of Doctrine of Separation of Powers as it clearly
curtails the power of sub-delegation given to the Executive with dual checks of
Sunset Proviso and scrutiny by Legislature. The PTRD Clause also recognizes the
difficulties faced by the Executive while implementing any legislation and it
further recognizes that the Legislature’s wisdom may be limited in understanding
the peculiar needs in implementation of a legislation. It is for this reason
that the Executive has been vested with such a power. To sum up, the following
observations of in Delhi Laws Act, 1912 Re [(1951) SCR 747] are
relevant: -
“The essential legislative function consists in the
determination or choosing of the legislative policy and of formally enacting
that policy into a binding rule of conduct. It is open to the legislature to
formulate the policy as broadly and with as little or as much details as it thinks
proper and it may delegate the rest of the legislative work to a sub-ordinate
authority who will work out the details within the framework of that policy.
‘So long as a policy is laid down and a standard established by statute no
constitutional delegation of legislative power is involved in leaving to
selected instrumentalities the making of subordinate rules within prescribed
limits and the determination of facts to which the legislation is to apply’.”
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