Section 40 of AFT Act 2007 - Power to Remove Difficulties
Section 40 of the Armed Forces Tribunal Act, 2007 created a temporary power enabling the Central Government to remove difficulties in giving effect to the Act by an order published in the Official Gazette, subject to strict statutory limits.
Updated: September 7, 2026
Section 40 - Power to remove difficulties
Section 40(1): 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 appear to it to be necessary or expedient for removing the difficulty.
Proviso: No order shall be made under this section after the expiry of two years from the date of commencement of this Act.
Section 40(2): Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.
What was the purpose of Section 40?
A power to remove difficulties is generally included to deal with practical implementation problems that may arise when a new statute is brought into force. Section 40 served that transitional function for the Armed Forces Tribunal Act, 2007.
The power was not unlimited. Parliament imposed conditions on the form of the order, its consistency with the Act, the time within which the power could be exercised, and parliamentary oversight after an order was made.
Conditions imposed by Section 40
| Requirement | Effect |
|---|---|
| Difficulty in giving effect to the Act | The power was tied to an implementation difficulty arising under the AFT Act. |
| Order by Central Government | The statutory power was vested in the Central Government. |
| Publication in Official Gazette | The order had to be published in the Official Gazette. |
| Consistency with the AFT Act | The order could not contain provisions inconsistent with the Act itself. |
| Necessary or expedient | The provisions made had to appear necessary or expedient for removing the difficulty. |
| Two-year sunset | No order could be made after expiry of two years from commencement of the Act. |
| Parliamentary laying | Every order had to be laid before each House of Parliament as soon as may be after it was made. |
Commencement date and the two-year sunset
India Code records June 15, 2008 as the enforcement date of the Armed Forces Tribunal Act, 2007. The proviso to Section 40 therefore made the remove-difficulties power temporary. Once two years from commencement had expired, the Central Government could no longer make a fresh order under Section 40.
Why must an order be consistent with the Act?
Section 40 expressly states that any provision made by a remove-difficulties order must not be inconsistent with the Armed Forces Tribunal Act. The section therefore did not authorize the Central Government to amend, contradict or override the parent Act through an executive order.
Why was parliamentary laying required?
Section 40(2) required every order made under the section to be laid before each House of Parliament as soon as may be after it was made. This requirement provided legislative oversight over the exercise of the temporary delegated power.
Section 40 compared with Section 41
Section 41 empowers the Central Government to make rules for carrying out the provisions of the Act and identifies specific subjects on which rules may be made. Unlike Section 40, Section 41 is not framed as a two-year transitional power to remove implementation difficulties.
Section 40 and Section 43
Section 43 separately deals with laying rules made under the Act before Parliament. Section 40(2), by contrast, specifically required every remove-difficulties order made under Section 40 to be laid before each House.
Official legal resources
- India Code - Armed Forces Tribunal Act, 2007
- India Code - Armed Forces Tribunal Act, 2007 PDF
- Armed Forces Tribunal - Acts and Rules
Related AFT Act provisions
See Section 39 - Act to have overriding effect, Section 41 - Power of Central Government to make rules, Section 42 - Power to make rules retrospectively, and Section 43 - Laying of rules. The wider statutory structure is available on the Armed Forces Tribunal Act, 2007 page.
This page is an informational presentation of Section 40. The provision remains part of the enacted statute, but its special order-making authority was expressly time-limited and is no longer available for fresh exercise after expiry of the statutory two-year period.