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Report No. 01

Chapter VII

Rule of Statutory Construction

53. Crown when bound by a statute.-The rule of construction that the Crown is not bound by a statute unless expressly mentioned therein or by necessary implication also requires examination as it was referred to by the Law Ministry in the present context. There are very many rules of English law founded on the prerogative rights of the Crown, and, as pointed out in 7 Halsbury's Laws of England, 3rd Edition, at page 222 et seq., this rule of construction was also considered as one of the incidents flowing from the pre¬eminent position which the Crown in England occupies.

The basis of the prerogative rights and powers of the Crown is common law. The Crown's pre¬eminence still survives in England except in so far as it is, for the time being, curtailed by statute. The question is whether there is any necessity or justification for the application of this rule of construction in India after it became a Republic.

54. The Australian Constitution was enacted by the British Parliament. Section 61 of the Constitution Act vests the executive power in the Queen and is exercisable by the Governor-General as the Queen's representative. The residuary prerogative rights and powers which continue to be vested in the Sovereign in England are still exercisable under that Constitution by the Crown until that power is curtailed by statute. The same applies to Canada.

55. The Constitution of the United States of America and of India were established by the people themselves in whom the sovereign power vested. Under our Constitution there is no room for any right or power outside the Constitution exercisable by a specially pre-eminent authority. There is no room for invoking prerogative rights or powers as an incident of sovereignty. The executive power of the Union is vested in the President (Article 53) and the extent of it is specified in Article 73.

It extends to the matters with respect to which Parliament has power to make law and the powers under treaties and agreements. The executive power of the State is vested in the Governor (Article 154) and extends to the matters in respect of which the State Legislature has power to make laws (Article 162). The proviso to Article 162 provides that in respect of matters in the Concurrent list, the power of the State must yield to the power of the Union.

The residuary executive power not covered by Lists II and III of the Seventh Schedule and items 1 to 96 of list I, is vested in the Union (vide item 97 of List I and Article 248). The entire field of the executive power is distributed between the States or the Union. There is no room for invoking any power outside the Constitution and to place the Union or the States in a pre¬eminent position.

56. It has now been held by the Supreme Court1 that the executive power of the State or the Union may be exercised even though there is no enactment relating to such power for the reason that the executive power is related under the Constitution to "matters" in the legislative lists and does not require a statute conferring or regulating the power to enable the State or the Union to exercise the power.

1. Ramjaya Kapoor v. State of Punjab, AIR 1955 SC 549.

57. The principle of construction adopted in England that the Crown is not bound by a statute unless expressly mentioned or by necessary implication was explained in Attorney General v. Donaldsonl, (1804) 10 m&w 117 (124.):

"Prima facie the law made by the Crown with assent of the Lords and Commons is made for subjects and not for the Crown".

In Bacon's abridgment, the reason is given differently and perhaps it is more satisfactory. It is stated that where the statute is general and thereby any prerogative right, title or interest is divested or taken away from the King, the King shall not be bound unless the statute is made by express terms to extend to him. The principle is that there should be no encroachment upon the prerogative, right or power of the Crown unless the Crown consented to it, for, a right or power cannot be taken away without the consent of the Crown even by a statute.

When there is no question of any prerogative power or right as under our Constitution there is no reason to adopt the principle. Even in England the rule has been criticised by jurists like Glanville Williams and Street as an "archaic survival of an ancient law". The application of the rule does not present any difficulty so long as the statute expressly exempts the Crown but the other part of the rule based on "necessary implication" is of difficult application. One test suggested was that if a statute was for the public good, it should be presumed to bind the Crown.

This test was given the go-bye by the Privy Council and was shifted to the ascertainment of the intention of the Legislature. But no objective test was laid down by any of the decisions as to how the intentions of the Legislature is to be ascertained. The principle was applied to India by the Privy Council in the Bombay Municipal Corporation case, 73 Indian Appeals 271. The Judicial Committee negatived the test of public good on the ground that every statute is for the public good but emphasised the other test of ascertaining the intention of the Legislature.

58. The question was examined in England in Attorney General v. Hancock, (1940) 1 KB 427. There it was laid down after examination of the authorities that if an Act diminishes the Crown's property, interest, prerogative or rights, the Crown would not be affected unless expressly mentioned. In a recent decision, U.S. v. Mine Workers of America, (1946) 67 SC Reports 677. Frankfurter, J., said:

"At best this cannon, like other generalities about statutory construction, is not a rule of law. Whatever persuasion it may have in construing a particular statute, it derives from the particular statute and the terms of the enactment in its total environment."

As Street puts it, in the United States the Courts laid emphasis on the legislative objects and the presumption for excepting Government privileges is invoked only to resolve doubts. This test is more satisfactory.

It is needless to discuss the development of this rule and the criticism against it as it is to be found in Street's "Governmental Liability", Chapter VI, page 143 and in Glanville Williams' "Crown Proceedings", page 49. At page 53, Glanville Williams summarises the position thus:

"The rule originated in the Middle Ages, when it perhaps had some justification. Its survival, however, is due to little but the vis inertice. The chief objection to the rule is its difficulty of application: One might suppose that if there were any statute that ought to bind the Crown by necessary implication, it would be a statute passed for the safety of the subjects; yet as we have seen, it does not always do so; and the circumstances in which it does not do so cannot be catalogued."

Glanville Williams, therefore, suggests that the law could be made clear by adopting the rule that the Crown is bound by every statute in the absence of express words to the contrary:

"Such a change in the law would make no difference to the decision of the preliminary question of legislative policy whether the Crown should be bound by a statute or not. At the moment if the draftsman of a bill is instructed that the Crown is not to be bound, he simply says nothing on the subject of the bill. Under the rule here suggested, he would insert express provision exempting the Crown. The change of the rule would not prevent the Crown from being expressly exempted from a statute if its framers so wished to."

The rule suggested by the learned author is undoubtedly just and reasonable and would avoid the difficulty of invoking the principle of "necessary implication" which is always an uncertain rule.

Professor W. Friedman examined the question in chapter 12 of his book "Law & Social Change" and opined that this rule of interpretation should no longer be applied. His conclusion is:-

"The rule that the Crown is not bound by statutes except when specially mentioned or by necessary implication is socially and politically objectionable, nor is it legally compelling. It is the exception to the rule which should be developed by courts, not the rule itself. The application of the rule should be limited to such cases where an overwhelming public interest demands that the Crown should be exempt."

After the Constitution the Calcutta High Court declined to apply this rule of construction Corporation of Calcutta v. The Director of Rationing, AIR 1955 Cal 282.

59. If simplification is to be achieved, it is suggested, that a provision may be made in the General Clauses Act stating the rule in the terms suggested by Glanville Williams and that in respect of Acts passed after a particular date the rule should apply. But then the difficulty would arise regarding Acts passed before the Constitution when the British sovereignty existed and Acts passed after the Constitution before the appointed date. It should be possible, though it may be a difficult task, to examine which of those Acts bind the State and then to initiate suitable legislation.

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