Report No. 60
10.7. Rule in England and in India.-
So much as regards the justification for considering the subject. We may now discuss the present position. The rule in England is that in the absence of an express provision to the contrary or of necessary intendment to the contrary, the Crown is not bound by a statute. This rule prevailed in India also for a long time. But the Supreme Court of India has now held1-2 that this rule of the common law of England does not apply to India after it became a Republic. We think that this view of the Supreme Court should be codified.3 We would, moreover, state that where there is no express provision, in the particular statute as to whether it binds the Government but reliance is placed on "necessary implication", the Court has to go through the entire Act, in order to determine whether the Act is binding on the Government.
Until the matter has been examined by a Court, no one can say with certainty whether an Act (which does not make an express provision on the subject) binds the Government. This position is obviously unsatisfactory. In the modern welfare State, the activities of Government have increased considerably. A member of the public dealing with the Government is, therefore, entitled to know, without going to a court of law, whether a particular Act binds the Government or not. Hence the only exception should be for cases where there is an express provision in a statute to the effect that it does not bind the State.
1. State of West Bengal v. Corp. of Calcutta, AIR 1967 SC 997.
2. Union of India v. Jubb, AIR 1968 SC 360.
3. For High Court decisions see para. 10.7A, infra.
10.8. We need not refer to all the cases of the High Courts. Some are mentioned in the foot-note.1
We, therefore, recommend that a section should be inserted in the General Clauses Act to the effect that, in the absence of a contrary express provision, every Act of Parliament shall be binding on the Government. Accordingly, we recommend the insertion of a new section as follows:
1. (a) Baxi Amrik Singh v. Union of India, (1973) 75 Punj LR 1 (FB). (b) M.V. Industries (P) Ltd. v. State of Kerala, 1971 KLR 128.
(e) State of Mysore v. R.G. Kulkarni, (1971) 73 Bom LR 723: AIR 1972 Born 93.
(d) Union of India v. Sugrabai, AIR 1969 Born 13.
(e) Collector, South Arcot v. Vedanthachariar, AIR 1972 Mad 148.
Section 13B (New)
"13B. Government to be bound. In the absence of an express provision to the contrary, every Central Act or Regulation made on or after the dayof 197, 1 shall be binding on the government."
1. Date of commencement of amendment Act to be entered.