Deals with the law with respect to the Statutes that affect the Crown/State. Includes the rule in England and that in India.

1. STATUTES AFFECTING
THE CROWN
NEHA BAGLANI
&
VISHY VINCENT

2. 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.’

3.  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”

4.  Exceptions:
a) Crown named in the Statute expressly
b) Crown bound by necessary implication

5. Necessary Implication??
A rule of Construction
If it is manifest from the very terms of the
statute that it was the intention of the legislature
that the Crown should be bound, then the result is
the same as if the Crown had been expressly
named.
It must then be inferred that the Crown by
assenting to the law agreed to be bound by its
provisions.

6.  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.

7. 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.

8. 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.

9. Madras Electric Supply Corporation v Boarland
(1955) 1 All ER 753, p.759
The word ‘person’ which is capable of including the
Crown will thus be read as excluding it, unless the
statute by necessary implication manifests contrary
intention.

10. How to construct contrary intention
(necessary implication)?
The only safe rule, which may be valid in all
cases, to decide whether a given statute binds the
Crown by necessary implication is to read the
statute as a whole and to see whether it is manifest
from the very terms of the statute, that it was the
intention of the Legislature that the Crown should
be bound.

11. The presumption that the Crown is not bound
by a by a statute is not rebutted merely by showing
(a) that the legislation in question can not operate
with reasonable efficiency unless the Crown is held
to be bound
OR
(b) by showing that there are express provisions in
the legislation saving certain rights of the Crown

12. It has to be shown that the Crown or the State if
not bound by a statute, the purpose of the statute
would be wholly frustrated or would be
meaningless.

13. Bombay Province v Bombay Municipal Corp.
AIR 1947 PC 34
The question was whether the provisions of the Bombay
Municipal Act, 1888, which authorised the Commissioner to
carry water mains and municipal drains through or under any
land whatsoever within the city were applicable in respect of
Govt. land within the city.
It was contended that without the Govt. being bound the Act
would not operate with reasonable efficiency.
Another argument was that there were certain express
exemptions in certain provisions which showed that the
Govt. was bound otherwise.
The Court negated both these arguments and ruled in favour
of the Govt.

14. Extent of the rule
The protection of the rule of presumption that the
Crown is not bound by statutes extends to three
classes 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

15.  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]

16. Class II & Class III differentiated:
The difference lies in the degree of independence and
amount of discretion, which is very high in case of Class III
persons and which is very low in case of Class II persons.
Class III clarified:
Persons fall under this category only if the independence
enjoyed and discretion exercised is in respect of matters
which are for the purposes of administration, or those
purposes of the Govt. which are according to the theory of
the Constitution, administered by the Sovereign.

17. Coomber v Berkshire Justices
(1883-84) 9 AC 61
Justices of the Courts of Assize claimed immunity from
the payment of tax for the premises occupied by the
Courts of Assize.
House of Lords granted the same.
Administration of justice is an act performed by a
person in consimili casu and thereby such persons
belong to Class III to whom the Crown privileges
extend.

18. British Broadcasting Company v Johns
(1964) 1 All ER 923 (CA)
BBC which was established by a royal charter and operated
under a license granted by the Postmaster General and to a
large extent was under his control claimed immunity from
taxation under the Income Tax Act, 1952. (under Class III
persons)
It was held that the corporation was not entitled to the
Crowns exemption from taxation because broadcasting was
not a province of the Govt. and the corporation was an
independent corporate body which was not exercising
functions required and created by the Govt. BBC was a
commercial corporation.

19. Mersey Docks & Harbour Board v Cameron
(1861-73) All ER Rep 78 (HL)
A non profit earning statutory corporation, which was
not subject to control by the Crown or a Minister and
whose revenues were not Crown’s revenues, claimed
immunity from local rates, on the ground that they
were performing a public duty (and tried to come
within the ambit of class III persons).
The acts performed by them couldn’t be proved to be
one performed by persons in consimili casu.
Which is why the privilege wasn’t granted.

20. Cooper v Hawkins
(1904) 2 KB 164
An army engine driver who drove a locomotive on
Crown service at a speed exceeding the limit fixed
by regulations under a statute claimed Crown
privilege for the same.
The Court granted it as the driver was a servant of
the Crown and hence a Class II person to whom the
immunity extends.

21. The rule in India
‘A statute applies to State as much as it does to a
citizen unless it expressly or by necessary
implication exempts the State from its operation.’

22.  Reason: Consistent with the rule of law
based on the doctrine of equality enshrined in
the Constitution.

23.  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

24. (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

25.  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.

26. In 1960, the SC in Director of R & D v Corp. of
Calcutta, held that it was the Common law rule
which was applicable in India (i.e. the Crown/State
is not bound unless expressly provided or by
necessary implication). This was based on its
opinion that the same existed and prevailed in pre
constitutional India.

27. In 1967, the SC in State of W.B. v Corp. of
Calcutta, held that in India a general Act applies to
citizens as well as to the State unless it expressly or
by necessary implication exempts the State from its
operation. It also stated that this rule would be
most compatible with the Doctrine of Equality
enshrined in the Constitution and also with the
Democratic principles of this nation.

28. : 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 v
Bombay Municipal Corp. Corp. of Calcutta Corp. of Calcutta

29. Union of India v Jubbi
AIR 1968 SC 360
The question was whether section 11 of the HP
Abolition of Big Landed Estates and Land Reforms
Act, 1953 applied to the Union. The section conferred
on tenants the right to acquire the interests of landlord
on payment of compensation and it was contended by
the Union that the section was not applicable to cases
where the Govt. was the landlord.
This contention was rejected and the Court expressed
that the current position of law was that a statute
applies to State as much as to a citizen, with certain
exceptions.

30. State of Bihar v Sonabati Kumari
AIR 1961 SC 221
Herein, it was held that the State is bound by the CPC. The
scheme of the Code being that subject to any special
provision made in regard to Govt., it occupies the same
position as any other party to a proceeding before the Court.
Lucknow Development Authority v M.K.Gupta
AIR 1994 SC 787
Herein, it has been held that the Consumer Protection
Act, 1986 applies to the Govt. in the same way as it applies
to private bodies for the Act does not either expressly or
impliedly indicate that these bodies are excluded from the
purview of the Act.

31.  Exceptions:
(a) Expressly exempted
(b) Exempted by necessary implication

32. Necessary implication (Still a rule of
construction but a different outlook)
The question whether the State has been
exempted by necessary implication from the
operation of an Act or any of its provisions will
depend upon a fair construction of the Act in
question.
If the application of the Act leads to some
absurdity, that may be a ground for holding that
the State is excluded from its operation by
necessary implication.

33. Example:
The Union is not bound by the Central Income Tax
Act because if it paid income tax, it would become
both the payer and receiver.

34. Municipal Corporation Amritsar v Senior
Superintendent of Post Offices, Amritsar division
(2004) 3 SCC 92
It was held that the Union is exempt from taxation
imposed by a state law unless the Parliament
provides otherwise, as Article 285 of the
Constitution provides for the same.
Express exemption or exemption by necessary
implication?

35.  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.

36. Hindustan Steel Works Construction Ltd.
v
State of Kerala
AIR 1997 SC 2275
The Hindustan Steel Works Construction Ltd., a
company which is fully owned by the Central Govt.
was held to be bound by the Kerala Construction
Workers Welfare Funds Act, 1939 even though the
Act has no application to the Central Govt.

37. THANK YOU