Director of Rationing And Distribution
Vs. The Corporation of Calcutta & Ors  INSC 124 (16 August 1960)
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
CITATION: 1960 AIR 1355 1961 SCR (1) 158
CITATOR INFO :
RF 1961 SC 112 (80) RF 1961 SC 221 (25,33) R
1963 SC1241 (68,65) D 1963 SC1681 (15) R 1964 SC 669 (12,13,14) R 1964 SC1781
(9) R 1965 SC1061 (17) O 1967 SC 997 (1,2,6,22,24,27,34,44,51,54,56 E 1968 SC
360 (2,4) RF 1976 SC1207 (162,182) RF 1988 SC1003 (2)
Statute, interpretation of--State, if bound
by statute--Principles applicable--" Person", if includes
State--Calcutta Municipal Act, 1923 (Ben. III of 1923), S. 386(1)(a)--Constitution
of India, Art. 372.
The appellant was using certain premises in
Calcutta for storing rice flour, etc. without taking out any license under s.
386(1)(a) of the Calcutta Municipal Act, 1923. The respondent filed a complaint
against the appellant for a contravention of S. 386(1)(a). The trial Magistrate
acquitted the appellant holding that the provisions of s.
386(1)(a), neither in terms nor by necessary
implication bound the Government whom the appellant represented. In revision,
the High Court held that the Government was bound by a statute unless the
legislature excluded it expressly or by necessary implication. The High Court
declined to follow the decision of the Privy Council in L. R. 73 1. A. 271 that
the general principle applicable in England applied to Indian legislation also.
Held, that the State was not bound by the
provisions of s. 386(1)(a) of the Calcutta Municipal Act, 1923, and that the
appellant was not liable to be prosecuted for a contravention of this section.
Per Sinha, C. J., Imam and Shah, jj.--The law
applicable to India before the Constitution was as authoritatively laid down by
the Privy Council in L. R. 73 I. A. 271. The Constitution has not made any
change in the legal position.
On the other hand it has clearly indicated
that the laws in force before January 26, 1950, shall continue to have validity
even in the new set-up except in so far as they were in conflict with the
express provisions of the Constitution. The rule of interpretation of statutes
that the State is not bound by a statute unless it is so provided in express
terms or by necessary implication, is still good law.
Province of Bombay v. Municipal Corporation
of the City of Bombay, (1946) L.R. 73 I. A. 271, applied.
Bell v. The Municipal Commissioners for the
City of Madras, (1901) I.L.R. 25 Mad. 457, disapproved.
The Corporation of Calcutta v.
Sub-Postmaster, Dharmatala Post Office, (1948) 54 C. W. N. 429, United States
of America v.
159 United Mine Workers of America, (1947) 91
L. Ed. 884, United States of America v. Reginald P. Wittek, (1949) 93 L. Ed.
1406, Less Larson v. Domestic and Foreign
Commerce Corporation, (1949) 93 L. Ed. 1628 and Roberts v. Abern, (1904) I C.
L. R. 406, referred to.
There is nothing in the Act to indicate that
the State was bound by it by necessary implication, nor is there anything in it
to show that if s. 386 were not held to apply to the State the law would lose
it efficacy or that its working would be hampered in any way.
Per Sarkar, J.-The rule that the crown is not
bound by the provisions of any statute unless it is directly or by necessary
implication referred to is really a rule of construction of statutes and is not
dependent on royal prerogatives. It has been applied by courts in India all
along before the Constitution and there is no reason why it should not be
applied to the interpretation of statutes after the Constitution.
Attorney General v. Donaldson, (1842) 10 M.
& W. 117, Coomber V' justices of Berks, (1883) 9 App. Cas. 61, Roberts v.
Ahern, (1904) I C.L.R. 406, United States v.
United Mine Workers of America, (1947) 91
LEd. 884, United States v. The State of California, (1936) 80 L. Ed. 567 Bell
v. The Municipal Commissioners for the City of Madras, (1901) I. L. R. 25 Mad.
457, Mersey Docks v. Cameron, (1865) 11 H. L. C. 443 and Coomber v. Justice of
Berks, (1884) 9 App. Cas. 61, Greig v. University of Edinburgh, (1868) L.
R. I H. L. (SC.) 348 and Cooper v. Hawkin s.
 2 K. B 164, referred to.
Section 386(1)(a) does not bind the
Government by necessary implication; the fact that certain provisions of the
Act expressly exempt the Government does not raise the necessary implication.
Nor would the purposes of the Act be defeated if the Government were not bound
Hornsey Urban Council v. Hennel,  2 K.
B. 73 and Province of Bombay v. Municipal Corporation, Bombay, (1946) L.R. 73
1. A. 271, relied on.
Per Wanchoo, J.-The rule of construction
which is based on the royal prerogative as known to the common law of England
cannot be applied to India now when there is no crown in India and when the
Common law of England is not applicable.
The, proper rule of construction which should
be applied now is that the state is bound by a statute unless it is exempted
expressly or by necessasy implication.
Province of Bombay v. Municipal Corporation
of the City of Bombay, (1946) L. R. 73 1. A. 271, not applied.
United States of America v. United Mine
Workers of America, Etc., (1947) 91 L. Ed. 384, United States of America v. Reginald
P. Wittek, (1949) 93 L. Ed. 1406, Jess Larson v.
Domestic and Foreign 160 Commerce
Corporation, (1949) 93 L. Ed. 1628, H. Snowden Marshall v. People of the State
of New York, (192O) 65 L.
Ed. 315 and Guaranty Trust Company of New
York v. United States of America, (1938) 82 L. Ed. 1224, referred to.
The Calcutta Municipal Act, 1923, does not
specifically exempt the State from its provisions, As the State cannot be
sentenced to imprisonment it is exempt by necessary implication from all penal
provisions providing for sentences of imprisonment or death. Further, where a
statute provides for a fine and the fine goes to the State, the State is
exempted from the provisions by necessary implication as it could never be the
intention that such a prosecution should be launched. The prosecution in the
present case is under s. 488 which provides for a fine for a breach of s. 386,
and the fine when imposed and realised goes to the State. Consequently, the
State is exempt from the penal provisions of s. 488 of the Act by necessary
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 158 of 1956.
Appeal by special leave from the judgment and
order dated February 9, 1955, of the Calcutta High Court in Criminal Revision
No. 282 of 1954, arising out of the judgment and order dated December 15, 1953,
of the Second Municipal Magistrate, Calcutta, in Case No. 2629C of 1952.
1960. Feb. 8, 9, 10. S. M. Bose,
Advocate-General for the State of West Bengal, A. C. Mitra, B. Sen, P. K. Bose
Gupta, for the appellant. Three questions
arise for determination in this appeal: (1) whether State is a " person
" within the meaning of s. 386 of the Calcutta Municipal Act, 1923, (2)
does the Constitution make any change in the principal of prerogative as part
of the common law and (3) does Art. 372 of the Constitution keep the existing
law intact, i. e., the law as declared in L. R. 73
1. A. 271 to the effect that the Crown is not
bound by any statute unless it is expressly named or unless it can be held to
be included by necessary implication.
The word " person " has been held
not to include the State.
[A.I.R. 1954 Punj. 49 ; A.I.R. 57 Punj. 150;
A.I.R. 53 Nag.
35 ; A.I.R. 1955 Nag. 177 ; I.L.R. 1953 1
Cal. 355; 62 C.W.N. 561. 33 Pat. 603 takes the contrary view.] If the word
" person " included the State, Art. 300 of the Constitution would not
be 161 necessary. How far the Crown is bound by a Statute not specifically
naming it is laid down by the Privy Council in L.R. 73 I.A. 271. The decision
of the Madras High Court taking a contrary view in I.L.R. 25 Mad. 457 was not cited
before the Privy Council and is based upon the wrong assumption that common law
changed with the change of legislation. The coming into force of the
Constitution does not alter the law as laid down in L.R. 73 I.A. 271, I.L.R.
1958 Mad. 801 and I.L.R. 58 Bom. 635. Article
372 of the Constitution includes the common law of the land and continues the
same after the coming into force of the Constitution. [I.L.R. 1956 Cal. 26,
I.L.R. 1955 Bom. 654].
This common law doctrine of the immunity of
the Crown from Statutes not specifically naming it or referring to it by
necessary implication is applicable in United States also.
[52 L. Ed. 82; 65 L. Ed. 315; 82 L. Ed.
M. C. Setalvad, Attorney-General for India,
R. Ganapathy Iyer, R. H. Dhebar and T. M. Sen, for intervener No. 1 The
question is whether the ancient rule of English common law declared to be
applicable to India by the Privy Council is applicable to the construction of
s. 386 and it has to be examined as to what was the position before and after
the Constitution. The High Court has decided that even before the Constitution
the principle did not apply in spite of the Privy Council decision. The statute
of 1923 must be construed in accordance with the rule of interpretation
prevailing in 1923. The makers of statute in 1923 did not intend to include
State in the word " person ". The decision of the Privy Council was
the binding law of the land unless there was legislation abrogating it or
taking away its effect. Article 372 of the Constitution actually continues the
law as laid down in L.R. 73 I.A. 271. This Article uses the expression "
of the law in force in India " and not the words " existing law
". The same expression is used in s. 292 of the Government of India Act
and was interpreted in  F.C.R. 110. There is nothing in the Constitution
which takes away the applicability of the rule. There is nothing in 21 162 that
rule or in its nature repugnant to any provision of our Constitution. The rule
is illustrated in 152 E.R. 406 and I C.L.R. 406. The rule is applicable to all
forms of Governments and is based on the ground of public policy and not merely
on the ground of prerogative. [91 L. Ed. 884; 93 L. Ed. 1628].
V. K. T. Chari, Advocate-General for Madras
and T. M. Sen, for intervener No. 4. Supported the Advocate-General of Bengal.
H. M. Seervai, Advocate-General for
Maharashtra and R. H. Dhebar, for intervener No. 5. The word " person
" should be given its normal meaning. It does not include the Crown or the
State. It would not include the State unless the statute would be meaningless
without such inclusion. [L.R.
73 I.A. 271 ; I C.L.R. 406]. By "
necessary implication " is meant that without the inclusion of the crown
or the State the beneficent purpose of the statute would be wholly frustrated.
The consensus of judicial opinion in Bombay has been the same as expressed in
L.R. 73 I.A. 271. The rule has nothing to do with forms of Government.[93 L.
Indian decisions have uniformly taken this
view. [5 Bom.
H.C.R. 23 ; I.L.R. I Bom. 7 ; I.L.R. 14 Bom.
213; 36 Bom.
L.R. 820; 37 Bom. L.R. 499; I.L.R. 2 All.
196]. I.L.R. 25 Mad. 457 accepts the rule but says that it does not apply to
taxation. This was a wrongful curtailment of the prerogative. [Halsbury, Vol.
7, p. 469, para 98]. The judgments of the Privy Council delivered before
January 26, 1950, are binding on all courts in India except the Supreme Court
and they are binding till the Supreme Court takes a different view. [A.I.R.
1953 Cal. 524; A.I.R. 1955 Nag. 293;
56 Bom. L.R. 1084]. Government of India Act,
s. 212 provided that the judgments of the Federal Court and of the Privy
Council shall be binding and shall be followed.
S. M. Sikri, Advocate-General of Punjab and
D. Gupta, for intervener No. 2. In pre-Constitution statutes the word "
person " could include " the Crown " but normally or ordinarily
it would not so include. In I.L.R. 1958 Punj.
201 it was held that person " included
the State of Punjab and the Union 163 of India. The rule laid down by the Privy
Council is equally applicable to a Republic. [25 L. Ed. 194; 65 L. Ed.
315; 24 L. Ed. 192 and 85 L. Ed. 1071]. In
A.I.R. 1956 Pat.
91 the State has been held to be a person.
G. C. Mathur and C. P. Lal, for intervener
No. 3. Adopted the arguments of the Advocate-General of West Bengal and of the
Attorney-General of India.
T. M. Sen, for intervener No. 6. Adopted the
arguments of the Advocate-General, Bengal and the Attorney-General of India.
N. C. Chatterjee, Sunil K. Basu and Sukumar
Ghose, for respondents. Section 386 is directed towards maintenance of healthy
condition etc. and is a wholesome provision for safeguarding the health of the
people by providing for the control of storing houses and for the equality of
the stores. The financial aspect, i. e., the recovery of license fees or fine
is inconsequential. The prerogative of immunity from the statutes is only
available when the State acts as State and not when it descends to trade and
business. State is a person. Salmond, 11th Edition, p. 35, defines person as an
entity capable of rights and duties.
It has the power to hold and acquire property
; it can sue and be sued [Article 300 of the Constitution ; 60.Punj. L. R.
546.]. The correct rule of interpretation is that to exempt the State from the
operation of a statute there must be express exclusion in favour of the State.
[Friedman in 13 Modern Law Review, 24]. The mere fact that the State cannot be
sent to jail, does not indicate that it is not a person.
A Corporation is a person. It is the stigma
of the conviction that matters and it is not a question of hurting the State
financially.  1 K. B. 146;  S.C.R.
720. A Corporation can be prosecuted even
where mensrea or state of mind is concerned. [Paton on Jurisprudence, 2nd
Edition, p. 279]. Sanctions of criminal law should be available against the
State for enforcing the law. [72 C. L.
R. 409; Willis' Constitution Law, p. 37].
State is a person. [78 L. Ed. 1307; I. L. R.  1 All. 269]. When State
engages in trade or commerce, it must be treated in the same 164 way as
ordinary citizens. [A. 1. R. 1955 Nag. 177; A. 1. R.
1956 Pat. 91.] State is not a person only for
the purposes of Art. 14.
The doctrine of immunity of States from the
operation of its laws cannot be invoked in the present constitutional set up.
The rule is based on royal prerogative. [1 C.
L. R. 406;
Willis p. 54]. The rule springs from the
prerogative that the King can do no wrong.  2 A. C. 5081. There is no one
equivalent to the King now in India and therefore the prerogative does not
survive. Law is a scheme of social control and the command of a superior. If
the State claims immunity, it must be exempted by express legislation.
Immunity cannot be implied. There has been
progressive restriction on the immunity of the State. [78 L. Ed. 1307;
90 L. Ed. 326]. I.L. R. 25 Mad. 457 lays down
the correct law. After the coming into force of the Constitution, the High
Courts are not bound by the judgment of the Privy Council. All powers are
derived from the Constitution and no immunities can be implied.
Even if any immunity can be implied, then it
cannot be invoked in respect of any trading or commercial activity. [5 Bom. H.
C. R. Appendix 1 at p. 13; 78 L. Ed. 1307; 90 L.
Ed. 326]. The activity carried on by the
State in storing food grains etc., and distributing them was trading activity
and not exercise of Governmental function.
The State is bound by necessary implication
by the provisions of the Calcutta Municipal Act, 1.923. There are provisions in
the Act which expressly exempt the State from their operation. See s. 126.
S. M. Bose in reply.-Common law can be
amended by legislation. See s. 4, Hindu Succession Act (30 of 1956) and Hindu
Adoptions and Maintenance Act (78 of 1956). There is difference between Civil and
Criminal liability. [72 C.
L. R. 406, at 409, 424, 425]. The State is
not carrying on any trading activity but is acting in the exercise of essential
Governmental functions.  1 S. C. R. 707].
Common law of England was introduced in the
Presidency towns by statutes. See Ormond's Rules of Court; 1. L. R. 61 Cal.
165 H. M. Seervai, (with the permission of
the Court). It is a settled rule that if a word is not a term of art, you must
take the ordinary meaning and not go to technical books. [74 C. L. R. 1; 90 L.
Ed. 396; Halsbury Vol. 7, p. 221].
S. M. Sikri, (with the permission of the
Court) referred to Holdsworth History of the English Law,' Vol. 10, p. 354.
Cur. adv. vult.
1960. August 16.-The Judgment of Sinha, C.J.,
Imam and Shah, JJ., was delivered by Sinha, C. J.. Sarkar and Wanchoo, JJ.,
delivered separate judgments.
SINHA C. J.-This appeal by special leave is
directed against the judgment and order of the High Court at Calcutta dated
February 9, 1955, whereby that Court, in its revisional jurisdiction, set aside
an order of acquittal dated December 15, 1953, passed by the Municipal
Magistrate, Calcutta, in respect of the prosecution launched by the Corporation
of Calcutta, respondent in this Court, against the appellant.
The relevant facts are these. On July 1,
1952, the Corporation of Calcutta made an application for summons under s. 488
of Bengal Act III of 1923, which was substituted by West Bengal Act XXXIII of
1951, against " the Director of Rationing and Distribution representing
the Food Department of the Government of West Bengal ". The offence
complained of was " for using or permitting to be used premises No. 259,
Chitpur Road, Upper, for the purpose of storing rice etc., under the provisions
of the Bengal Rationing Order, 1943, without a licence under s. 386 for the
year, 1951-52, corresponding s. 437 of the C.M.C. Act, 1951 ". Section
386(1)(a) of the Calcutta Municipal Act is in these terms:,, No person shall
use or permit to be used any premises for any of the following purposes without
or otherwise than in conformity with the terms of a licence granted by the
Corporation in this behalf, namely, any of the purposes specified in Schedule
XIX 166 Item 8 of the said Schedule is " storing, packing, pressing,
cleansing, preparing or manufacturing, by any process whatever, any of the
following articles and the articles mentioned include rice, flour, etc.
The facts alleged by the prosecution were not
denied in behalf of the Department, which was in the position of the accused, but
it was contended by way of a preliminary objection that the prosecution was not
maintainable in law.
After hearing arguments for the parties the
learned trial Magistrate passed an order acquitting the accused relying upon a
decision of the Calcutta High Court in the case of The Corporation of Calcutta
v. Sub-Postmaster, Dharamtala Post Office(1), holding that the provisions of s.
386 of the Act, neither in terms nor by necessary implication, bound the
Government. The respondent moved the Calcutta High Court in its revisional
jurisdiction in Criminal Revision No. 282 of 1954, which was heard by a
Division Bench consisting of J. P. Mitter and S. N. Guha Ray, JJ. Cxuha Ray,
J., who delivered the judgment of the Court, Mitter, J., concurring, held that
the previous decision of the same High Court in The Corporation of Calcutta v.
Sub-Postmaster, Dharamtala Post Office (1) was clearly distinguishable. The
distinction pointed out was that the previous decision of the Court had relied
upon the decision of the Judicial Committee of the Privy Council in Province of
Bombay v. Municipal Corporation of the Citu of Bombay (2), in a case arising
before the coming into force of the Constitution.
As the present case arose after the advent of
the Constitution, the High Court did not feel bound by the aforesaid decision
of the Privy Council and therefore examined the legal position afresh. On such
an examination, the High Court came to the conclusion that the Indian
Legislature in enacting laws acted on the assumption that the Government would
be bound unless excluded either expressly or by necessary implication oftener
than on the assumption that it would not be bound, unless the Legislature so
provided expressly or by necessary implication. The High Court took the view
that the decision of the Division (1) (1948) 54 C.W.N. 429.
(2) (1946) L.R. 73 I.A. 271.
167 Bench of the Madras High Court in Bell v.
The Municipal Commissioners for the City of Madras (1) was more in consonance
with the law in India than the opposite view expressed in the Privy Council
judgment aforesaid. They definitely decided that the law of India, even before
the coming into effect of the Constitution, 7 and even at the time of the
passing of the Government of India Act, 1935, was that the Government was bound
by a Statute unless it was exempted either expressly or by necessary
implication. In that view of the matter, the High Court further observed that
the question whether the decision aforesaid of the Privy Council was still good
law under Art. 372 of the Constitution did not arise and that, if it did, it
was inclined to the view that the law declared by the Privy Council was not
continued by any provision of law. In effect, the High Court took the view that
the State was bound by the Statute unless it was excluded from its operation
either expressly or by necessary implication. In that view of the matter, it
held that s. 386 of the Act bound the appellant, set aside the order of
acquittal and sent the case back to the learned Magistrate for disposal
according to law. The appellant made an application for special leave to appeal
from the aforesaid judgment and order of the High Court, and obtained special
leave in September 1955. It is thus clear that this case had remained pending
in this Court for about five years. If this Court agreed with the view
expressed by the High Court, the case would have to be tried on merits and the
trial would begin more than eight years after the institution of the petition
of complaint, but, as will presently appear, this prosecution was misconceived
and therefore, in effect, no one has been the worse for the long pendency of
the prosecution, which now must come to an end.
The short question for determination in this
appeal is whether any offence had been committed by the appellant, as alleged
against him. If he was bound by the provisions of the Act to take out a licence
on payment of the necessary fees, he must be held to have contravened the
provisions of that Statute. It has (1) (1901) I.L.R. 25 Mad.. 457.
168 been contended by the learned
Advocate-General of Bengal, representing the appellant, that the decision of
the Privy Council referred to above is still good law and that the contrary
decision of the Division Bench of the Madras High Court (1) did not take the
correct view of the legal position. The argument further is that the Privy
Council decision was certainly binding on the Courts in India at the time it
was rendered. That was the law of the land as declared by the highest judicial
authority. Has that judicial determination been altered by the Constitution ?
It has been argued that the law in India, even after the coming into effect of
the Constitution, continues to be the same as the law in England in respect of
the prerogatives of the Crown. The Act in question does not make any express
provision binding the Government and there was nothing in the Act to show to
the contrary by necessary implication.
The Act could operate with reasonable
efficacy without being held to be binding on the Government. It was further
pointed out that the High Court had failed to take into consideration the fact
that that High Court itself had construed the Calcutta Municipal Act of 1923,
which was replaced by the present Act of 1951, on the basis of the Privy
Council decision not to have bound the Government.
The Act of 1951 did not make any provision
expressly abrogating that view. Hence, it is argued the High Court should have
felt bound by the previous decision of that very Court given on the basis of
the Privy Council decision; and had erred in taking the opposite view. The
argument further was that the State is not a person within the meaning of the
penal section with reference to which the prosecution had been launched. The
common law could not have been overridden impliedly by a course of legislation.
The common law applies to India even after the Constitution, not because there
is the King or the Queen, but because it is the law in force. In other words,
what was the prerogative of the sovereign has now become the law of the land in
respect of the sovereignty of the State. Thus the law of England, which (1)
(1901) I.L.R. 25 Mad, 457.
169 in its source was the prerogative of the
Crown, was the common law of the land and was adopted by the Constitution by
Art. 372, subject to the reservations contained therein.
The Attorney-General for India as also the
Advocates-General of Madras and Bombay supported the contention raised on
behalf of the appellant.
Mr. N. C. Chatterjee, who appeared on behalf
of the respondent, contended that the State is a legal person as recognised in
Art. 300 of the Constitution and was, therefore, capable of rights and
obligations; that unless there is an express exclusion of the State by the
Legislature, the Act would apply to all, including the State. He further
contended that under the Constitution there is no King and, therefore, there
cannot be any question of prerogative. Any exemption from the operation of the
statute must be found in express immunity under the law and cannot be implied.
He went to the length of contending that a State's prerogative is inconsistent
with the whole Constitution. Whatever may have been the legal position before
the coming into effect of the Constitution, it has not countenanced the
continuance of any such prerogative as is contended for on behalf of the
Another line taken by Mr. Chatterjee is that
when the State embarks upon a business, it does so not in its sovereign
capacity, but as a legal person, subject to the same rights and liabilities as
any other person. In effect, therefore, he contended that the State is a person
within the meaning of s. 386 of the Act; that the doctrine of immunity of
States from the operation of its laws cannot be invoked after the advent of the
Constitution, and, alternatively, that even if the immunity is available to the
State as a sovereign power, it is not available to the State when it embarked
upon a commercial undertaking and that. in any case, the State was bound by the
law by applying the rule of necessary implication from the provisions of the
In this case it is manifest that it is the
Government of West Bengal which is sought to be prosecuted 22 170 through one
of its officers. The prosecution is not against a named person, but against the
Director of a named Department of the Government. The person who was the
Director of the Department at the relevant date, that is to say, in the year
1951-52 may not be the same person who answered that description on the date
the prosecution was launched. In essence, therefore, it is the Government of
West Bengal which has to answer the charge levelled by the respondent, the
Corporation of Calcutta. Whether a prosecution against such an indeterminate
person would or would not lie is a matter which has not been raised and, therefore,
need not be discussed. The question most canvassed before us in whether the
penal section invoked in this case applies to Government. It has been
contended, and in our opinion rightly, that the provisions of the penal section
neither by express terms nor by necessary implication are meant to be applied
to Government. The decision of the Judicial Committee 'of the Privy Council(1),
if it is good law even now, completely covers this case, but the decision of
the High Court, now under examination, has taken the view that the earlier
decision of the Division Bench of the Madras High Court (2 ) has laid down the
correct law, and not the Privy Council decision. We have, therefore, to decide
which of the two decisions has taken the correct view of the legal position as
it obtained on the day the prosecution was launched.
It is well-established that the common law of
England is that the King's prerogative is illustrated by the rule that the
Sovereign is not necessarily bound by a statutory law which binds the subject.
This is further enforced by the rule that the King is not bound by a statute
unless he is expressly named or unless he is bound by necessary implication or
unless the statute, being for the public good, it would be absurd to exclude
the King from it.
Blackstone (Commentaries, Vol. I, 261-262)
accurately summed up the legal position as follows:"The king is not bound
by any act of Parliament, unless he be named therein by special and (1) (1946)
L.R. 73 I.A. 271.
(2)  I.L.R. 25 Mad. 457.
171 particular words. The most general words
that can be devised...... affect not him in the least, if they may tend to
restrain or diminish any of his rights or interests. For it would be of most
mischievous consequence to the public, if the strength of the executive power
were liable to be curtailed without its own express consent by constructions
and implications of the subject. Yet, when an act of Parliament is expressly
made for the preservation of public rights and the suppression of public wrongs,
and does not interfere with the established rights of the crown, it is said to
be binding as well upon the king as upon the subject; and, likewise, the king
may take the benefit of any particular act, though he be not specialty
named." (Quoted at p. 355 of Holdsworth, A History of English Law, Vol.
The King's prerogative is thus created and
limited by common law and the sovereign can claim no prerogative, except such
as the law allows. (See Halsbury's Laws of England, Vol. 7, Third Edition,
para. 464, at p. 22 1).
The prerogative of the Crown in respect of
property is thus stated in the same volume of Halsbury's Laws of England, para.
980, at p. 465:"The Crown not being bound by any statute whereby any
prerogative right, title, or interest belonging to it may be divested or
abridged, unless expressly named or bound by clear implication, property owned,
and occupied by the Crown is exempt from taxation unless rendered liable either
by express words or necessary implication. Moreover, an express exemption of
particular classes of Crown property in a statute is not in itself sufficient
to raise the implication that such property only is exempt, and that other
property not falling within the exception is bound, such clauses being inserted
merely ex majore cautela." That was the law applicable to India also, as
authoritatively laid down by the Privy Council in the case referred to above.
That decision was rightly followed by the Calcutta High Court as stated above.
That would be the legal position until the advent of the Constitution.
172 The question naturally arises: whether
the Constitution has made any change in that position ? There are no words in
the Constitution which can be cited in support of the proposition that the
position has changed after the republican form of Government has been
adumbrated by our Constitution. It was argued on behalf of the respondent that
the existence of such a prerogative is negatived by the very form of our new
set up, that is to say, it was contended that the republican form of Government
is wholly inconsistent with the existence of such a prerogative. In our
opinion, there is no warrant for such a contention. The immunity of Government
from the operation of certain statutes, and particularly statutes creating
offences, is based upon the fundamental concept that the Government or its
officers cannot be a party to committing a crimeanalogous to the I prerogative
of perfection' that the King can do no wrong. Whatever may have been the
historical reason of the rule, it has been adopted in our country on grounds of
public policy as a rule of interpretation of statutes. That this rule is not
peculiar or confined to a monarchical form of Government is illustrated by the
decision of the Supreme Court of U. S. A. in the case of United States of
America v. United Mine Workers of America (1), where it is laid down that
restrictions on the issue of injunctions in labour disputes contained in
certain statutes do not apply to the United States Government as an employer or
to relations between the Government and its employees and that statutes in
general terms imposing certain restrictions or divesting certain privileges
will not be applied to the sovereign without express words to that effect.
Similarly, in the case of United States of America v. Reginald P.
Wittek (2), the question arose whether the
District of Columbia Emergency Rent Act applied to government-owned defence
housing or to government owned low-rent housing in the District, and it was
ruled by the Supreme Court, reversing the decision of the Municipal Court of
Appeals, that the statute in question did not apply to the United States
Government (1) (1947) 330 U.S. 258: 91 L. Ed. 884.
(2) (1949) 337 U.S. 346: 93 L. Ed. 1406.
173 which was not a " landlord "
within the meaning of the Act.
The decision was based on the rule that a
general statute imposing restrictions does not impose them upon the Government
itself without a clear expression or implication to that effect. Another
illustration of the rule is to be found in the case of Jess Larson v. Domestic
and Foreign Commerce Corporation (1). In that case a suit by a citizen, in
effect, against the Government (War Assets Administration) for an injunction
was dismissed by the District Court on the ground that the Court did not have
jurisdiction, because the suit was one against the United States. The Supreme
Court, by majority, held that the suit as against the United States must fail
on the ground that according to the laws of the country the sovereign enjoyed
an immunity which was not enjoyed by the citizens. The case of Roberts v. Ahern
(2) is another illustration of the same rule. It was held by the High Court of
Australia in that case that the Executive Government of the Commonwealth or of
a State is not bound by a statute unless the intention that it shall be so
bound is apparent.
On the other hand, Art. 372 of the
Constitution has specifically provided that subject to the other provisions of
the Constitution all the laws in force in this country immediately before the
commencement of the Constitution shall continue in force until altered or
repealed or amended by a competent Legislature or by other competent authority.
The expression " law in force " has
been used in a very comprehensive sense as would appear from the provisions of
sub cls. (a) and (b) of cl. (3)of Art. 13 of the Constitution. If we compare
the provisions of Art. 366(10) which defines " existing law " which
has reference to law made by a legislative agency in contradistinction to
" laws in force " which includes not only statutory law, but also
custom or usage having the force of law, it must be interpreted as including
the common law of England which was adopted as the law of this country before
the Constitution came into force. It is thus clear that far from (1) (1949) 337
U.S. 682 : 93 L. Ed. 1628.
(2) (1904) I. C.L.R. 406.
174 the Constitution making any change in the
legal position, it has clearly indicated that the laws in force continue to
have validity, even in the new set up, except in so far as they come in
conflict with the express provisions of the Constitution. No such provision has
been brought to our notice. That being so, we are definitely of the opinion
that the rule of interpretation of statutes that the State is not bound by a
statute, unless it is so provided in express terms or by necessary implication,
is still good law.
But Mr. Chatterjee further contended,
alternatively, that even if it were held that the Government as a sovereign
power may have the benefit of the immunity claimed, it is not entitled to that
immunity when it embarks upon a business and, in that capacity, becomes subject
to the penal provisions of the statute equally with other citizens. This
question was not raised below and has not been gone into by the High Court, nor
is it clear on the record, as it stands, that the Food Department of the
Government of West Bengal, which undertook rationing and distribution of food
on a rational basis had embarked upon any trade or business. In the absence of
any indication to the contrary, apparently this Department of the Government
was discharging the elementary duty of a sovereign to ensure proper and
equitable distribution of available food-stuffs with a view to maintaining
peace and good Government. Therefore, the alternative argument suggested by Mr.
Chatterjee has no foundation in fact.
It only remains to consider the other
alternative argument that even if the State has not been bound by the penal
section in the statute in question in express terms, it must be deemed to be
bound by it by necessary implication. But no specific provisions of the statute
in question have been brought to our notice which could lend any support to
this alternative argument. It has not been shown to us that if the section
which was sought to be applied against the Government were held not expressly
to apply to Government, the law will lose any of its efficacy, or that its
working will be hampered in any way. It must, therefore, be 175 held that there
is no substance in this contention either.
The appeal is accordingly allowed, the
judgment under appeal set aside and the acquittal of the appellant confirmed.
SARKAR J.-The appellant is an officer of the
Government of West Bengal. He was prosecuted before a Municipal Magistrate of
Calcutta for storing rice in certain premises without obtaining a licence for
that purpose from the respondent, the Corporation of Calcutta, as required by
386 of the Calcutta Municipal Act, 1923. That
was an Act passed by the legislature of the former Province of Bengal and may,
for the present purpose, be taken to have been passed by the legislature of the
State of West Bengal. In storing the rice the appellant had acted in his
official capacity and for carrying out the West Bengal Government's rationing
The Magistrate acquitted the appellant
holding that the Act did not bind the Government as it was neither expressly
nor by necessary implication made bound, and so, the appellant who had been
prosecuted as representing the Government would not be liable for non-compliance
with its provisions. On revision the High Court at Calcutta held that the
English rule that a statute did not bind the Crown unless expressly or by
necessary implication made bound, did not apply to Indian statutes and so the
Government would be liable for breach of the provisions of the Calcutta
Municipal Act. In this view of the matter, the High Court set aside the order
of acquittal and sent the case back to the Magistrate for disposal on the
merits. This appeal has been taken from the order of the High Court with
special leave granted by this Court.
The main question is whether the English rule
that The Crown is not bound by the provisions of any statute unless it is
directly or by necessary implication referred to " applies to India. It is
said that the rule is based on the English law of Crown prerogatives and has no
application to India since the promulgation of our Constitution as we have now
a republican 176 form of government where no question of royal prerogatives can
arise. It is pointed out that the prosecution was in this case started since
the Constitution came into force and whatever may have been the position
earlier, the Government can no longer take shelter under the English rule.
I think the rule applies to India even after
the Constitution. It seems to me that the rule as applied in modern times, is
really a rule of construction of statutes and is not dependent on royal
prerogatives. This is the view that appears to have been taken in all recent
authorities, to some of which I wish now to refer.
In Craies on Statutes (5th Ed.) it is stated
at p. 392 that " The rule is analogous, if not equivalent, to the rule
already stated that the common law is not presumed to be altered by statute
". The rule, therefore, is based on the presumed intention of the
legislature and is, hence, a rule of construction of statutes. Then I find it
stated in Attorney-General v. Donaldson (1) that " It is a well
established rule, generally speaking, in the construction of Acts of
Parliament, that the King is not included unless there are words to that
effect; for it is inferred prima facie that the law made by the Crown with the
assent of the Lords and Commons, is made for subjects and not for the
Crown". Again in Comber V. Justices of Berks (2) it was said in reference
to this rule, " In Rex v. Cook, 3 T.R.
519, the general principle as to the
construction of statutes imposing charges as containing an exemption of the
Crown was laid down ". In the Australian case of Roberts v. Ahern (3), it
was said, "This rule has commonly been based on the Royal prerogative.
Perhaps, however, having regard to modern developments of constitutional law, a
more satisfactory basis is to be found in the words of Alderson, B." The
words referred to are what I have already set out from Attorney-General v.
In America too this rule has been applied as
a rule (1) (1842) 10 M. & W. 117, 123; 152 E.R. 406.
(2) (1883) 9 App. Cas. 61, 65.
(3) (1904) 1.C.L.R. 406, 417.
177 of construction though there is no King there
but the government is of the republican form. So in United States v. United
Mine Workers of America (1) it was observed, " There is an old and
well-known rule that statutes which in general terms divest pre-existing rights
or privileges will not be applied to the sovereign without express words to
that effect. It has been stated, in cases in which there were extraneous and
affirmative reasons for believing that the sovereign should also be deemed
subject to a restrictive statute, that this rule was a rule of construction
Again in reference to the same rule it was
said in United States V. State of California (2). " The presumption is an
aid to consistent construction of statutes of the enacting sovereign when their
purpose is in doubt ".
In our country also in Bell v. The Municipal
Commissioners for the City of Madras(3), a case on which much reliance has been
placed by the respondent, it was said after referring to various English cases
dealing with the rule, " This emphatic statement of the rule being founded
upon general principles of construction is undoubtedly applicable as much to
Indian enactments as to Colonial or Imperial Statutes ".
It was also said at the same page, " The
rule of construction above adverted to cannot itself be regarded as a
prerogative of the Crown ".
Then I find that in England the rule protects
from the operation of a statute not only what may strictly be called Crown
prerogatives, or whatever is nowadays left of them, but all the Crown's rights,
title and interest: see Halsbury's Laws of England (3rd Ed.) Vol. VII, p. 465.
In volume XXXI of the Second Edition of the same treatise it is stated with
reference to the rule that, " The Crown for this purpose means not only
the King personally, but also the officers of State and servants of the Crown
when acting within the scope of their authority on behalf of the Crown in the
discharge of executive duties ". In Mersey Docka (1) (1947) 330 U. S. 258,
272 ; 91 L. Ed. 884, 902.
(2) (1936) 297 U. S. 175, 186; 80 L. Ed. 567,
(3) (1901) I.L.R. 25 Mad. 457, 485.
23 178 v. Cameron(1), Lord Cranworth after
referring to the various instances where the rule had been applied to exempt
buildings occupied for purposes of the government from rates and other
impositions, said, " These decisions however have all gone on the ground
more or less sound, that these might all be treated as buildings occupied by
the servants of the Crown, and for the Crown, extending in some instances the
shield of the Crown to what might more fitly be described as the public
government of the country ". Again in Coomber v. Justices of Berks (2),
Lord Blackburn after referring to certain observations of Lord Westbury in the
Mersey Docks case(1) said, "He there says that the public purposes to make
an exemption " must be such as are required and created by the government
of the country, and are, therefore, to be deemed part of the use and service of
the Crown;" and in Greig v. University of Edinburgh (3) be more clearly
shews what was his view by using this language, "property occupied by the
servants of the Crown, and (according to the theory of the Constitution)
property occupied for the purposes of the administration of the government of
the country, become exempt from liability to the poor-rate "." In this
case it was held that lands with buildings constructed thereon and used by
county justices, and for police purposes were not liable to income-tax. In
Cooper v. Hawkins (4) it was held that an engine-driver employed by the Crown
who drove a steam-locomotive on Crown service at a speed exceeding the limit
specified by regulations made under a statute, was not liable as in the absence
of express words, the statute did not bind the Crown. Lastly, I refer to
Roberts v. Ahern (5) where a person acting under the orders of the Government
of the Commonwealth of Australia had been prosecuted for having carted away night
soil from a Post Office without a licence from, and without having given any
security to, the local authority as was required by an enactment of the State
of Victoria. It was held that he was not liable to prosecution because, (1)
(1865) 11 H.L.C. 443, 508; 11 E.R. 1405.
(2) (1883) 9 App. Cas. 61, 65. (3) (1868)
L.R.I H.L, (SC.)348.
(4)  2 K.B. 164. (5) (1904) 1. C.L.R.
179 " The modern sense of the rule, at
any rate, is that the Executive Government of the State is not bound by
Statutes unless that intention is apparent: " p. 418. It was also said
that " The doctrine is well settled in this sense in the United States of
America: " (p. 418). It is unnecessary to multiply instances where acts of
the executive government have received the protection of the rule.
All this would seem to put it beyond doubt,
that whatever its origin, the rule has long been regarded only as a rule of construction.
It has been widely used to exempt executive governments from the operation of
statutes quite apart from protecting prerogative rights of the British Crown
strictly so called. It has been held reasonable to presume that the legislature
intended that executive governments are not to be bound by statutes unless made
bound expressly or by necessary implication. It would be equally reason. able
to do so in our country even under the present set up for the presumption has
all along been raised in the past and especially as the applicability of the
rule can no longer be made to depend on the prevailing form of government. In
countries with a republican form of government, the Sovereign would be the
State, and its acts, which can only be the acts of its executive limb would be,
under the rule exempt from the operation of its statutes.
Whether the royal prerogative as understood
in England, exists in the present day India is not a question that can arise in
applying what is a pure rule of construction of statutes.
Further it is quite clear that the rule has
been applied by courts in India in the construction of Indian statutes all
along at any rate upto the promulgation of our Constitution, except in the
solitary instance of Bell's case (1) earlier referred to. It would therefore be
right to hold that the legislatures in our country have proceeded on the basis
that the rule would govern the enactments passed by them. That being so and
remembering that the rule is one of construction, there would be no reason to
deny its application to Indian statutes after the Constitution. The Dew
republican (1) (1901) I.L.R. 25 Mad. 457.
180 form of government adopted by us would
not warrant a departure from the long established rule of construction.
It was then said that the course of
legislation in India would indicate that it was not intended even before the
Constitution that the rule would apply to Indian statutes.
This contention was based on Bell's case(1).
That case seems to me to have proceeded on a basis not very sound. On an
examination of certain Indian statutes it was said, " It is noteworthy
that as a general rule government is specially excluded whenever the
Legislature considered that certain provisions of an enactment should not bind
the Government ".
From this the conclusion was drawn that
"According to the uniform course of Indian legislation, statutes imposing
duties or taxes bind Government as much as its subjects, unless the very nature
of the duty or tax is such as to be inapplicable to the Government ". It
seems to me that this decision overlooks the uniform course of decisions of
Indian Courts applying the rule in the construction of Indian statutes. The
legislature must be deemed to have known of these decisions and if they wanted
to depart from their effect they would have passed a statute bringing about the
desired result. No such statute was ever passed. It is well-known that in these
circumstances the legislatures must be taken to have proceeded on the basis
that the decisions were correct and the rule was to be applied to the statutes
passed by them. That being so, an examination of the course of Indian
legislation would be irrelevant. The cases where the Government was expressly
excluded must be taken to be instances of exemptions ex majori cautila: see
Hornsey Urban Council v. Hennel(2). Furthermore, it seems to me that a
comparison of the number of statutes where the Government had been specially
excluded from their operation with the number where the statutes are silent on
the subject is, at best, a very unsafe guide for deciding whether the rule
should be applied to Indian enactments. I therefore dissent from the view
expressed in Bell's case(1), that the rule does not apply in India.
(1) (1901) I.L.R. 25 Mad. 457.
(2)  2 K.B. 73.
181 Now it seems to me that in storing the
rice in the present case, the Government of West Bengal was performing one of
its governmental functions. It was storing rice for purposes of rationing, that
is, making food-stuff available to citizens in time of scarcity. That such
activity is a part of the government's duty is unquestionable. The act for
which the appellant was prosecuted was, therefore, an act of the West Bengal
Government done in discharge of its ordinary duties as the government and the
rule would prevent the Act from applying to make the Government liable for a
breach of it.
Then it is said that the Act binds the
Government by necessary implication. In support of this argument we were
referred to certain provisions of the Act which expressly exempted the
Government from their operation. I am unable to agree that this raises the
necessary implication. It has been said in Halsbury's Laws of England (2nd Ed.)
Vol. XXXI at p. 523 that " A general prerogative of the Crown is not
deemed to have been abandoned by implication by reason of the specific
exemption in a statute of any class of the servants of the Crown from acting in
compliance with the prerogative, nor by reason of the :fact that the Crown has
foregone or curtailed its rights in some other direction in another part of the
statute " ; see also Hornsey Urban Council case (1) earlier referred to.
These observations would show the unsoundness of the contention raised by the
Lastly, it is said that the purpose of the
Act was to prevent adulteration of food-stuffs and this object would be wholly
defeated unless the Government was bound by it. It is not in dispute that if
this were so, that might be a ground for holding that the Act bound the
Government. On this aspect of the case reference may be made to Province of
Bombay v. Municipal Corporation of Bombay (2). I am however unable to hold that
the purpose of the Act would be wholly or at all defeated if the Government
were not bound by it.
It seems to me that s. 386 of the Act, the breach
of which is complained in this case, is concerned with (1)  2 K.B. 73.
(2) (1946) L.R. 73 I.A. 271.
182 the use of premises and not with the
prevention of adulteration of food-stuffs as was contended for the respondent.
The provisions with regard to adulteration of food-stuffs are contained in a,
different part of the statute. There is nothing to show that the purpose of the
Act would wholly be defeated if some premises were used contrary to the terms
of the Act.
I would for these reasons hold that the Act
did not bind the Government and the prosecution of the appellant for an act
done in the discharge of his duties as an officer of the Government cannot be
maintained. This appeal should therefore be allowed and the order of the High
Court set aside and that of the Magistrate restored.
WANCHOO J.-I have had the advantage of
reading the judgments prepared by my Lord the Chief Justice and my brother
Sarkar J. I agree with their conclusion but my reasons are different. I
therefore proceed to state my reasons for coming to the same conclusion.
The facts have already been stated in the
judgment of my Lord the Chief Justice and I will not therefore repeat them.
Suffice it to say that the Corporation of
Calcutta initiated this prosecution, in substance, of the State of West Bengal
through its Director of Rationing and Distribution under s.
488 of the Calcutta Municipal Act, No. 111 of
1923, (now equivalent to s. 537 of the Calcutta Municipal Act, No.
XXXIII of 1951), for using or permitting to
be used certain premises for the purpose of storing rice, etc. under the
provisions of the Bengal Rationing Order, 1943, without a licence under s. 386
of Act III of 1923, (now equivalent to s. 437 of Act XXXIII of 1951). The State
did not deny the facts; but it was contended on its behalf that the prosecution
was not maintainable in law. The Magistrate held that the provisions of s. 386
of the 1923 Act did not apply to the State either expressly or by necessary
implication and therefore passed an order of acquittal. The Corporation took
the matter in revision to the High Court, which distinguished an earlier
decision of the High Court relied upon by the Magistrate and held that after
India became a 183 democratic republic from January 26, 1950, the High Court was
not bound by the decision of the Privy Council in a similar matter reported in
Province of Bombay v. Municipal Corporation of the City of Bombay (1) and that
the rule of construction based on the royal prerogative that the Crown was not
bound by a statute unless it was expressly named therein or at any rate could
be held to be bound by necessary implication, did not apply in India after
January 26, 1950, and that the true rule of construction on which the Indian
legislatures acted was that the State would be bound unless excluded either
expressly or by necessary implication. The High Court therefore held that s.
488 of the Act of 1923 read with s. 386 bound the State and set aside the order
of acquittal and sent the case back to the Magistrate for disposal according to
The most important question thus is, whether
the rule of construction derived from the royal prerogative in England can
still be said to apply in India after January 26, 1950.
If this rule of construction based on the
royal prerogative does not apply, it would necessarily follow that the ordinary
rule of construction, namely, that the State would also be bound by the law
like anybody else unless it is expressly excluded or excluded by necessary
implication, would apply. Now the rule of construction based on the royal
prerogative is a survival from the medieval theory of divine right of Kings and
the conception that the sovereign was absolutely perfect, with the result that
the common law of England evolved the maxim that " the King can do no
wrong ". In course of time however the royal prerogative in England was
held to have been created and limited by the common law and the sovereign could
claim no prerogatives, except such as the law allowed nor such as were contrary
to Magna Carta or any other statute or to the liberties of the subject. The
courts also had jurisdiction to inquire into the existence or extent of any
alleged prerogative. If any prerogative was disputed, they had to decide the
question whether or not it existed in the same way as they decided any other
question of law. If a, (1) (1946) L.R. 73 I.A. 271.
184 prerogative was clearly established, they
could take the same judicial notice of it as they took of any other rule of
law: (see Halsbury's Laws of England, 3rd Edition, Vol. 7, p. 221, para. 464).
The question of royal prerogative was also
considered in Attorney-General v. De Keyser's Royal Hotel Limited(1). It was
held there in that even where there was prerogative it could be curtailed by a
statute, if the statute dealt with something which before it could be affected
by the prerogative, inasmuch as the Crown was a party to every Act of
Parliament. Thus in modern times, the royal prerogative is the residue of
discretionary or arbitrary authority which at any time is legally left in the
hands of the Crown and is recognised under the common law of England. Two
things are clear from this modern conception of royal prerogative, namely, (1)
that there must be a Crown or King to whom the royal prerogative attaches, and
(2) that the prerogative must be part of the common law of England. Both these
conditions existed when the Privy Council decision in Province of Bombay v.
Municipal Corporation of the City of Bombay (2) was given in October 1946; the
King was still there and the Privy Council held that the English common law
rule of construction applied to Indian legislation as much as to English
statutes. I may mention however that in England also the rule has come in for
criticism by writers of books on law. Glanville L. Williams in his treatise on
" Crown Proceedings " says at p. 53:
" The rule originated in the Middle
Ages, when it perhaps had some justification. Its survival, however, is due to
little but the Vis inertiae." Again at 54, the author says" With the
great extension in the activities of the State and the number of servants
employed by it, and with the modern idea, expressed in the Crown Proceedings
Act," (compare in this connection Art. 300 of our Constitution), "
that the State should be accountable in wide measure to the law, the
presumption should be that a statute binds the Crown rather than it does
not." (1)  A.C. 508. (2) (1946) L.R. 73 I.A. 271.
185 After January 26, 1950, when our country
became a democratic republic and the King ceased to exist, it is rather otiose
to talk of the royal prerogative. It is also well to remember that the English
common law as such never applied to India, except in the territories covered by
the original side of the three Chartered High Courts, namely, Calcutta, Bombay
and Madras, (see Kahirodebihari Datta v. Mangobinda Panda(1) ) though sometimes
rules of English common law were applied by Indian courts on grounds of
justice, equity and good conscience. It seems to me therefore that to apply to
Indian statutes a construction based on the royal prerogative as known to the
common law of England now when there is no Crown in this country and when the
common law of England was generally not even applicable, (except in a very
small part), would be doing violence to the ordinary principle of construction
of statutes, namely, that only those are not bound by a statute who are either
expressly exempted or must be held to be exempt by necessary implication.
In our country the Rule of Law prevails and
our Constitution has guaranteed it by the provisions contained in Pt. III
thereof as well as by other provisions in other Parts: (see Virendra Singh and
others v. The State of Uttar Pradesh (2) ). It is to my mind inherent in the
conception of the Rule of Law that the State, no less than its citizens and
others, is bound by the laws of the land. When the King as the embodiment of
all power-executive, legislative and judicialhas disappeared and in our
republican Constitution, sovereign power has been distributed among various
organs created thereby, it seems to me that there is neither justification nor
necessity for continuing the rule of construction based on the royal
prerogative. It is said that though the King has gone, sovereignty still exists
and therefore what was the prerogative of the King has become the prerogative
of the sovereign. There is to my mind a misconception here. It is true that
sovereignty must exist under our Constitution (1) (1934) I.L.R. 61 Cal. 841,
(2) (1955) 1.S.C.R. 415.
186 but there is no sovereign as such now. In
England, however, the King is synonymous with the sovereign and so arose the
royal prerogative. But in our country it would be impossible now to point to
one person or institution and to say that he or it is the sovereign under the
A further question may arise, if one is in
search of a sovereign now, whether the State Government with which one is
concerned here is sovereign in the same sense as the English King (though it
may have plenary powers under the limits .set under our Constitution). This to
my mind is another reason why there being no King or sovereign as such now in
our country, the rule of construction based on the royal prerogative can no
longer be invoked.
Reliance was placed in this connection on
certain cases from Australia and Canada and also from the United States of
America. So far as Australia and Canada are concerned, the cases are not of
much help for the Crown exists there still.
Besides in Canada and in most of the
provinces of Canada and in New Zealand provisions have been specifically
introduced in the Interpretation Acts laying down that no provision or
enactment in any Act shall affect, in any manner whatsoever, the rights of His
Majesty, his heirs or successors, unless it is expressly stated 'therein that
His Majesty shall be bound thereby: (see Street on Governmental Liability
", at p. 152).
In the United States also, it is doubtful if
the royal prerogative as such is relied on as the basis of certain principles
which are in force there. In United States of America v. United Mine Workers of
America, Etc. (1), the Supreme Court did say that there was an old and
well-known rule that statutes which in general terms divested preexisting
rights and privileges would not be applied to the sovereign without express
words to that effect. But there was no discussion of the royal prerogative as
such in the judgment and the rule was called a well-established rule of
construction only. Besides the Court went on to consider the words of the
statutes under consideration and held that on a proper construction of them the
United States was not bound.
(1) (1947) 330 U.S, 258: 91 L. Ed. 884 187 In
United States of America v. Reginald P. Wittek (1), the Supreme Court did say
that a general statute imposing restrictions does not impose them upon the
government itself without a clear expression or implication to that effect;
but this decision was based mainly on the
terms of the State statute there under consideration and the surrounding
circumstances and legislative history of the statute concerned. Another case in
the same volume is Jess Larson v. Domestic and Foreign Commerce Corporation (2)
at p. 1628, where a suit was brought against an officer of the United States
and it was held that it was in substance a suit against the sovereign
government over which the court in the absence of consent had no jurisdiction.
There is no discussion in this case of the royal prerogative having continued
in the United States and the decision seems to have turned on some law of that country
which provides that a suit against the Government could not be tried in a court
in the absence of consent. As against these decisions I may refer to H. Snowden
Marshall v. People of the State of New York (3) to show that royal prerogative
as such is losing ground in the United States, if nothing more. When dealing
with the priority of a State over the unsecured creditors in payment of debts
out of the assets of the debtor, the Supreme Court held that whether the
priority was a prerogative right or merely a right of administration was a
matter of local law and the decision of the highest court of the State as to
the existence of the right and its incidents would be accepted by the Federal
Supreme Court as conclusive. Again in Guaranty Trust Company of New York v.
United States of America (4), the Supreme
Court held that the immunity of the sovereign from the operation of statutes of
limitation, although originally a matter of royal prerogative, was now based
upon the public policy of protecting the citizens of the State from the loss of
their public rights and revenues through the (1) (1949) 337 U.S. 34693 L. Ed.
(2) (1949) 337 U.S. 68293 L. Ed. 1628.
(3) (1920) 254 U.S. 38o65 L. Ed. 315.
(4) (1938) 304 U.S. 126: 82 L. Ed. 1224.
188 negligence of the officers of the State,
showing that some of those immunities which in England were claimed as royal
prerogatives, though preserved in the United States, were so preserved for
other reasons. Besides it must not be forgotten that though the Crown no longer
remained in the United, States after the attainment of independence the
American colonies out of which the United States arose were colonised by
English settlers who carried the common law of England with them to America
with the result that the first Constitution of some of the States (like New
York) after independence provided that the common law of England which together
with the statutes constituted the law of the colony before independence should
be and continue to be the law of the State subject to such alterations as its
legislature might thereafter make: (see H. Snowden Marshall v. People, of the
State of New York('), at p. 317). That may account for the United States
recognising some of those prerogative rights which were in force in England;
though even so, the basis for such recognition is now more the law or public
policy than any royal prerogative as such. The position in our country was
somewhat different. We had the King but the common law of England did not, as
already indicated, apply as a rule in this country. Now that the King has also
gone, there seems to be no reason for continuing the royal prerogatives after
January 26, 1950.
Further it appears to me that the royal
prerogative where it deals with substantive rights of the Crown as against its
subjects, as, for example, the priority of Crown debts over debts of the same
nature owing to the subject, stands on a different footing from the royal
prerogative put forward in the present case, which is really no more than a
rule of construction of statutes passed by Parliament. Where, for example, a
royal prerogative dealing with a substantive right has been accepted by the,
Courts in India as applicable here also, it becomes a law in force which will
continue in force under Art. 372(1) of the Constitution.
But (1) (1920) 254 U.S. 380; 65 L. Ed. 315.
189 where the royal prerogative is merely a
rule of construction of statutes based on the existence of the Crown in England
and for historical reasons, I fail to see why in a democratic republic, the
courts should not follow the ordinary principle of construction that no one is
exempt from the operation of a statute unless the statute expressly grants the
exemption or the exemption arises by necessary implication. On the whole
therefore I am of opinion that the proper rule of construction which should now
be applied, at any rate after January 26, 1950, is that the State in India
whether in the Centre or in the States is bound by the law unless there is an
express exemption in favour of the State or an exemption can be inferred by
necessary implication. The view taken by the Calcutta High Court in this
connection should be accepted and the view expressed by the Privy Council in
Province of Bombay v. Municipal Corporation of the City of Bombay (1) should no
longer be accepted as the rule for construction of statutes passed by Indian
Let me then come to the question whether on
the view I have taken of the rule of construction, the prosecution in this case
can be allowed to continue. There is nothing in the Act of 1923 or in the Act
of 1951 exempting the State specifically from any of the provisions of the
Calcutta Municipal Act. In this case the State is being prosecuted under s. 488
(or s. 537 now) and that section provides for fine for breach of s. 386 (or s.
437 now). The provision is a penal provision' and immediately a question arises
whether the State as such, apart from its individual officers as natural
persons, is liable to prosecution under the criminal law or has to be exempted
from the operation of the provisions of criminal statutes by necessary
implication. A criminal proceeding generally ends with punishment which may be
imprisonment, or fine, or both. Now it does not require any elaborate reason to
realise that the State as such cannot be sentenced to imprisonment because
there is no way of (1) (1946) L.R. 73 I.A. 271.
190 keeping it in prison; therefore, by
necessary implication, the State is exempt from all penal statutes and
provisions providing for sentences of imprisonment or death. Then come those
penal provisions which impose fines, like the present case, and the question is
whether in such a case also the State must be deemed by necessary implication
to be exempt from the penal provision. Generally speaking fines when inflicted
by courts are realised by the State and go to the coffers of the State. In
effect, therefore if the State as such is to be prosecuted under a penal
statute imposing fine the result is that the Court will sentence the State to
fine which will go to the State itself. It is obvious that if such is the
result of a prosecution, namely that the accused gets the fine, the intention
could never be that such a prosecution should be launched. Therefore where the
penalty is fine and the fine goes to the State, it must be held that by
necessary implication the law does not intend the State to be prosecuted for
such an offence. In the present case I find that under s. 81 of the Act of 1923
(or the corresponding s. 115 of the Act of 1951) the fines imposed by the
Magistrate will not go to the Corporation but in the usual way to the State.
Under the circumstances whatever other methods may be possible for enforcing
the provisions of s. 386 (or s. 437 now) against the State it cannot be
intended to be enforced by prosecution resulting in fine which would go to the
State itself. In these circumstances it must be held that by necessary
implication the State is exempt from the penal provisions contained in s. 488
(now s. 537). I would therefore allow the appeal, set aside the judgment of the
High Court and restore the order of acquittal by the Magistrate.