STATUTES AFFECTINGTHE CROWNNEHA BAGLANI&VISHY VINCENT
The rule of Common Law ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ ‘No statute binds the Crown unless the Crown is named therein expressly or by necessary implication.’
Reason: A statute is presumed to be enacted for the subjects and not for the King. “It is to be intended that when the King gives his assent he does not mean to prejudice himself or to bar himself of his liberty and his privileges, but he assents that it be a law among his subjects”
Exceptions: a) Crown named in the Statute expressly b) Crown bound by necessary implication
Necessary Implication??A rule of ConstructionIf it is manifest from the very terms of thestatute that it was the intention of the legislaturethat the Crown should be bound, then the result isthe same as if the Crown had been expresslynamed.It must then be inferred that the Crown byassenting to the law agreed to be bound by itsprovisions.
Modes of construction: a) Historically Early authorities made attempts to lay down certain categories as to when the Crown was bound though not specifically named.
These were: (i) Statutes for maintenance of religion, learning and the poor (ii) Statutes for suppression of wrongs (iii) Statutes that tend to perform the will of a founder or donor etc.This mode of construction had various flaws in it.
b) Eventually If the Crown is expressly not named, a general word capable of including the Crown is, as a matter of construction, read as excluding it, unless the Statute by necessary implication manifests an intention to the contrary.
Madras Electric Supply Corporation v Boarland (1955) 1 All ER 753, p.759The word ‘person’ which is capable of including theCrown will thus be read as excluding it, unless thestatute by necessary implication manifests contraryintention.
How to construct contrary intention(necessary implication)?The only safe rule, which may be valid in allcases, to decide whether a given statute binds theCrown by necessary implication is to read thestatute as a whole and to see whether it is manifestfrom the very terms of the statute, that it was theintention of the Legislature that the Crown shouldbe bound.
The presumption that the Crown is not boundby a by a statute is not rebutted merely by showing(a) that the legislation in question can not operatewith reasonable efficiency unless the Crown is heldto be boundOR(b) by showing that there are express provisions inthe legislation saving certain rights of the Crown
It has to be shown that the Crown or the State ifnot bound by a statute, the purpose of the statutewould be wholly frustrated or would bemeaningless.
Bombay Province v Bombay Municipal Corp. AIR 1947 PC 34The question was whether the provisions of the BombayMunicipal Act, 1888, which authorised the Commissioner tocarry water mains and municipal drains through or under anyland whatsoever within the city were applicable in respect ofGovt. land within the city.It was contended that without the Govt. being bound the Actwould not operate with reasonable efficiency.Another argument was that there were certain expressexemptions in certain provisions which showed that theGovt. was bound otherwise.The Court negated both these arguments and ruled in favourof the Govt.
Extent of the ruleThe protection of the rule of presumption that theCrown is not bound by statutes extends to threeclasses of persons The Sovereign personally, His servants or agents acting as such, Persons who though not strictly servants or agents, are considered to be in consimili casu
Class I-The Sovereign personally Class II-His servants or agents acting as such [Covers Officers of the State with Ministerial status, sub-ordinate officials, servants holding statutory offices (In determining if a person holding a statutory office is a servant of the Crown, the degree of control exercised by the Crown and the amount of discretion left with the holder of the office are relevant and important factors to be taken into account.] Class III-Persons in consimili casu [Covers persons who though independent of the Crown perform exclusively or to a limited degree the regal governmental functions such as the administration of justice, the maintenance of order, the repression of crime, the carrying on of war, the making of treaties of peace and other consequential functions]
Class II & Class III differentiated:The difference lies in the degree of independence andamount of discretion, which is very high in case of Class IIIpersons and which is very low in case of Class II persons.Class III clarified:Persons fall under this category only if the independenceenjoyed and discretion exercised is in respect of matterswhich are for the purposes of administration, or thosepurposes of the Govt. which are according to the theory ofthe Constitution, administered by the Sovereign.
Coomber v Berkshire Justices (1883-84) 9 AC 61Justices of the Courts of Assize claimed immunity fromthe payment of tax for the premises occupied by theCourts of Assize.House of Lords granted the same.Administration of justice is an act performed by aperson in consimili casu and thereby such personsbelong to Class III to whom the Crown privilegesextend.
British Broadcasting Company v Johns (1964) 1 All ER 923 (CA)BBC which was established by a royal charter and operatedunder a license granted by the Postmaster General and to alarge extent was under his control claimed immunity fromtaxation under the Income Tax Act, 1952. (under Class IIIpersons)It was held that the corporation was not entitled to theCrowns exemption from taxation because broadcasting wasnot a province of the Govt. and the corporation was anindependent corporate body which was not exercisingfunctions required and created by the Govt. BBC was acommercial corporation.
Mersey Docks & Harbour Board v Cameron (1861-73) All ER Rep 78 (HL)A non profit earning statutory corporation, which wasnot subject to control by the Crown or a Minister andwhose revenues were not Crown’s revenues, claimedimmunity from local rates, on the ground that theywere performing a public duty (and tried to comewithin the ambit of class III persons).The acts performed by them couldn’t be proved to beone performed by persons in consimili casu.Which is why the privilege wasn’t granted.
Cooper v Hawkins (1904) 2 KB 164An army engine driver who drove a locomotive onCrown service at a speed exceeding the limit fixedby regulations under a statute claimed Crownprivilege for the same.The Court granted it as the driver was a servant ofthe Crown and hence a Class II person to whom theimmunity extends.
The rule in India ‘A statute applies to State as much as it does to a citizen unless it expressly or by necessaryimplication exempts the State from its operation.’
Reason: Consistent with the rule of law based on the doctrine of equality enshrined in the Constitution.
Rule in the Pre Constitution period:Plurality of opinions: (a) In Director of R & D v Corporation of Calcutta (AIR 1960 SC 1355) it was opined that the Common law rule that the Crown was not bound by a statute unless named expressly or by necessary implication applied to India before the Constitution. The decision in Bombay Province v Bombay Municipal Corporation was used by the Court to prove the same. -INCORRECT VIEW
(b) In State of W.B. v Corporation of Calcutta (AIR 1967 SC 997) it was opined that the Common law rule was not accepted prior to the Constitution throughout India and even in the Presidency towns it was not regarded as an inflexible rule. In this connection it was pointed out that Bombay Province v Bombay Municipal Corporation was one of the various exceptions and that the legislative practice in India established that the various legislatures of the country provided specific exemptions in favour of the Crown whenever they intended to do so and did not rely upon any presumption.-CORRECT VIEW
Evolution of the current rule in India: Independent India (1950 onwards) continued to follow the state of affairs prior to independence. Most states had the legislative practice of expressly exempting the State from the application of certain statutes. In certain circumstances the Common law rule was also applied, whereby the state was not bound as such but was made so by necessary implication. The application of the same rule wasn’t uniform.
In 1960, the SC in Director of R & D v Corp. ofCalcutta, held that it was the Common law rulewhich was applicable in India (i.e. the Crown/Stateis not bound unless expressly provided or bynecessary implication). This was based on itsopinion that the same existed and prevailed in preconstitutional India.
In 1967, the SC in State of W.B. v Corp. ofCalcutta, held that in India a general Act applies tocitizens as well as to the State unless it expressly orby necessary implication exempts the State from itsoperation. It also stated that this rule would bemost compatible with the Doctrine of Equalityenshrined in the Constitution and also with theDemocratic principles of this nation.
: Ambiguous and Unclear rules : Application of the rule of Common law : Application of the current Indian rule 1947 1950 1960 1967 Bombay Province Director of R & D State of W.B. v v vBombay Municipal Corp. Corp. of Calcutta Corp. of Calcutta
Union of India v Jubbi AIR 1968 SC 360The question was whether section 11 of the HPAbolition of Big Landed Estates and Land ReformsAct, 1953 applied to the Union. The section conferredon tenants the right to acquire the interests of landlordon payment of compensation and it was contended bythe Union that the section was not applicable to caseswhere the Govt. was the landlord.This contention was rejected and the Court expressedthat the current position of law was that a statuteapplies to State as much as to a citizen, with certainexceptions.
State of Bihar v Sonabati Kumari AIR 1961 SC 221Herein, it was held that the State is bound by the CPC. Thescheme of the Code being that subject to any specialprovision made in regard to Govt., it occupies the sameposition as any other party to a proceeding before the Court. Lucknow Development Authority v M.K.Gupta AIR 1994 SC 787Herein, it has been held that the Consumer ProtectionAct, 1986 applies to the Govt. in the same way as it appliesto private bodies for the Act does not either expressly orimpliedly indicate that these bodies are excluded from thepurview of the Act.
Necessary implication (Still a rule ofconstruction but a different outlook)The question whether the State has beenexempted by necessary implication from theoperation of an Act or any of its provisions willdepend upon a fair construction of the Act inquestion.If the application of the Act leads to someabsurdity, that may be a ground for holding thatthe State is excluded from its operation bynecessary implication.
Example:The Union is not bound by the Central Income TaxAct because if it paid income tax, it would becomeboth the payer and receiver.
Municipal Corporation Amritsar v Senior Superintendent of Post Offices, Amritsar division (2004) 3 SCC 92It was held that the Union is exempt from taxationimposed by a state law unless the Parliamentprovides otherwise, as Article 285 of theConstitution provides for the same.Express exemption or exemption by necessaryimplication?
Special rule: In cases where an Act does not apply to the Govt., an agent or instrumentality of the Govt., which is not a department of the Govt. , may be bound by an Act, especially when it’s a welfare legislation.
Hindustan Steel Works Construction Ltd. v State of Kerala AIR 1997 SC 2275The Hindustan Steel Works Construction Ltd., acompany which is fully owned by the Central Govt.was held to be bound by the Kerala ConstructionWorkers Welfare Funds Act, 1939 even though theAct has no application to the Central Govt.