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Section 86: Removal of difficulties

Information Technology Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 2000
Section 85 All 90 Sections of Information Technology Act Section 87

Legal Commentary & Landmark Judgments: Section 86

Section 86 enacts the Henry VIII removal of difficulties clause, empowering the Central Government to issue executive orders not inconsistent with the Act to remove any practical difficulty arising in giving effect to its provisions within a statutory sunset window of two years.

  • Executive Power to Remove Operational Impasses: Authorizes the Central Government to make orders to resolve unforeseen administrative or procedural hurdles in implementing the Act.
  • Statutory Consistency Constraint: Explicitly mandates that no order under this section can be inconsistent with the substantive provisions of the parent Act.
  • Strict Two-Year Sunset Window: Confined the exercise of this transitional power to a maximum period of two years from the commencement of the Act, rendering the section spent thereafter.
Key Landmark Precedents:
  • Madeva Upendra Sinai v. Union of India (1975) 3 SCC 765: Supreme Court established the definitive scope of removal of difficulties clauses, affirming that executive orders cannot alter the basic scheme or substantive rights under the Act.
  • Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha AIR 1967 SC 691: Constitution Bench held that Henry VIII clauses delegating legislative amendment power to the executive without parliamentary oversight are unconstitutional.
  • State of Rajasthan v. Basant Nahata (2005) 12 SCC 77: Supreme Court reiterated that executive power to remove difficulties is strictly transitional and cannot be used to enact substantive subordinate legislation.
Courtroom Practice & Strategic Litigation Guidance:

Note that Section 86 was a transitional provision whose statutory lifespan expired two years following the 2000 enactment; any executive modification of IT Act provisions must now be enacted through formal statutory amendments or rules under Section 87.

Section 85 All 90 Sections of Information Technology Act Section 87