The Doctrine of the Immunity of the Crown in the UK and India

INTERPRETATION OF STATUTES PROJECT ABSTRACT Statutes Affecting the Crown/State The general English rule is that the “king is above the law” and all statutes are meant for the subjects only and the crown is not bound by them. The rule of Common Law ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ meaning the statutes neither control the crown nor the rights or properties of the crown, unless expressly or by necessity or by implication is named so in the statute. The only safe rule to construct 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.

This presumption extends not only to the crown but also to the Crown’s servants. The basis of this rule is to present an efficient and effective functioning of the ruler and his government for the welfare of the people. Historically Early authorities made attempts to lay down certain categories as to when the Crown was bound though not specifically named. These were: (i) Statutes for maintenance of religion, learning and the poor (ii) Statutes for suppression of wrongs (iii) Statutes that tend to perform the will of a founder or donor etc. This mode of construction had various flaws in it. It has been shown through many judicial decisions that without the Crown or the State being bound by a statute, the purpose of the statute would be wholly frustrated or would be meaningless. 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.’ This rule is consistent with the rule of law based on the doctrine of equality enshrined in the Constitution.

Various exceptions have been provided through legislative practice in India and it has been established that the various legislatures provided specific exemptions in favour of the Crown whenever they intended to do so and did not rely upon any presumption. 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. Research Question: This project attempts to analyze the laws and give examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. Introduction The common law maxim ‘Roy n’est lie per ascun statute, si il ne soit expressment nosme’ means that a statute does not bind the Crown unless the Crown has, by express terms or by necessary implication, been named therein.

The rule in India has been held to be quite different, wherein general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. There is a consensus of judicial opinion that the common law rule is merely a rule of construction. It has been applied in the colonies and in the Commonwealth as the fact that unless the intention to be bound is apparent, the State or the Executive Government of the State is not bound by statute. It has also been applied in the United States as a rule of construction and the reason given by the Americans for application of the rule is that it is a policy to preserve an efficient and operational functioning of the Government for the public.

[1] The present paper attempts to analyze the existing laws and provide examples of general exceptions to the doctrine that bind the Crown by express provisions or necessary implication and how the judiciary and the parliament, both in the UK and India, have interpreted this doctrine of the immunity of the crown over the years so as to provide an effective aid to statutory construction. The Common Law Rule It is the well-settled rule in England that a statute does not bind the Crown unless the Crown has been named in the statute expressly or by necessary implication. It has thus been described as the doctrine of Crown Immunity. Since the Queen in the Parliament with the purpose of regulating her subjects has made the Act, it obviously follows that unless a contrary intention is apparent, the Act will not bind the Crown itself. However, again, unless a contrary intention is made apparent, the Crown may take advantage of such an Act.

[2] In Willian v. Berkley,

[3] Lord Plowden explained that when the king gives his assent to a statute, he does not intend to prejudice himself or to bar his own liberties and privileges, but rather, he assents to that fact that the Act be a law for his subjects.

[4] This was a very old decision and hence a more modern explanation of the concept can be found in Lord Du Parcq’s opinion in the case of Bombay Province v. Bombay Municipal Corporation,

[5] wherein he stated that it is the doctrine of common law that the Crown is not bound by any statute unless the Crown has been expressly named and that this rule is subject to one exception that if it is manifest from the terms of the statute that the legislature had intended that the Crown be bound, then the result is the same as that of the Crown being expressly named i.e. the Crown shall in such circumstances be bound by the statute. This is what is meant by ‘necessary implication’. So, it can be inferred from the assent of the Crown that it agreed to be bound by the provisions of the act.

[6] In the early days, attempts were made to provide different situations where a statute would bind the Crown even though it was not expressly mentioned. In Magdalen College case,

[7] Lord Coke attempted to lay down three types, or categories, of statutes where the State was bound even though it was not named.

These included: (i) Statutes for maintenance of religion, learning and the poor, (ii) Statutes for suppression of wrong and (iii) Statutes that tend to perform the will of a founder or donor.

[8] In Bacon’s Abridgment it was stated that if an act of Parliament were made for the ‘public good’ then the King would be bound by it even if he were not named.

[9] However, there is an apparent problem with such a construction. In modern times, since all States are aiming to become ‘Welfare States’, all statutes passed by the legislature can only be said to be for the public good and if that is the case, then all statutes would bind the State and hence this would completely do away with the concept of Crown Immunity. This cannot be the case and hence a number of cases have held that the statutes, although for public good, still do not bind the State. Thus, it is the provisions of the statute in question or the Code of which the statute forms a part that will determine whether the Crown will be bound by the statute in which it has not been mentioned or not. This is the present law in England.[10] In Madras Electric Supply Corporation v. Boarland,[11] it was held that if the Crown has not been expressly named, then a term which is capable of including the Crown will be read as excluding it, unless a contrary intention manifests itself by necessary implication.[12] Thus in A.G. v. Hancock,[13] the word ‘person’ was held not to include the State even though it was capable of including it. Thus we see that the only ‘safe rule’ to determine whether the Crown can be bound by ‘necessary implication’ is by reading the statute as a whole and to check whether it is manifest from the terms of the statute that the legislature intended the Crown to be bound.[14] In Bombay Province v. Bombay Municipal Corporation,[15] the question arose as to whether the provisions of the Bombay Municipal Act 1888 that authorized the Commissioner to carry water mains and municipal drains ‘through or under any land whatsoever in the city’ would be applicable to Government land within the city? The Privy Council in deliberating how far the purpose of the statute was relevant in determining whether or not the Crown was bound by necessary implication stated as follows: “the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the Court is asked to draw this inference, it must always be remembered that, if it be the intention of the Legislature that the Crown shall be bound, nothing is easier than to say so in plain words.”[16] Thus, the presumption of immunity can only be rebutted if on reading the statute as a whole, the purpose of the statute would be wholly frustrated if the statute did not bind the Crown. The House of Lords in Lord Advocate v. Dumbarton District Council[17] fully accepted the decision of the Privy Council in the Bombay Municipal Corporation case. In this case, the House of Lords held that the Crown was not bound by the Roads (Scotland) Act 1947 and the Town and Country Planning (Scotland) Act 1972 because the Crown was not expressly or by necessary implication included in these acts and hence the claims of the local planning authority and local highway authority that work undertaken and encroachment of the Highway were in contravention the said Acts were dismissed.[18] Despite the rule, the immunity of the Crown has been affected by some other factors. For example, s.1 of the Crown Proceedings Act 1947 permits the Crown to be prosecuted directly in those circumstances where preceding the Act, a claim might have been implemented by petition of right.

Also, s.2 of the same Act authorizes actions to be brought against the Crown with regard to torts committed by its servants or agents for any breach of its duties that gives rise to tortious liability.[19] The rule though still applicable in England, has received great criticism. In his book on Crown Proceedings, Glanville L. Williams has stated that the rule had emerged in the Middle Ages, when maybe there was some justification for the rule, but it has survived merely due to vis inertiae. It is very difficult to apply the rule as well. In modern times, with the increase in State’s activities as well as the increase in the number of employees of the State, as well as the novel idea in the Crown Proceedings Act that the State should be widely held accountable to the law, it should be the presumption that the State is bound by statutes rather than it is not.[20] Position of Law in India The Supreme Court of India in the case of State of West Bengal v. Corporation of Calcutta,[21] held that the common law rule of construction with regard to statutes affecting the State was not accepted in India even prior to the Constitution. With regard to the Privy Council decision in the Bombay Municipal Corporation case, the court stated that the rule was applied as a concession made by the Council and that it was established and clear from the legislative practices in India that the Indian legislature would provide express exemptions in cases where the State was not to be bound by a statute and that in all other cases the State was bound. Therefore, the Indian legislatures did not rely on any presumption as the common law did, but rather, they relied only on express exemption. The Court further held that the Common Law rule had no application or significance to a democratic republic like India as it was based on the privilege of the Crown. It was inconsistent with the doctrine of equality as laid down in the Indian Constitution.[22] Thus, as a result of this decision, in India, general Acts apply to both the citizens as well as the State unless the statute, by express terms or by necessary implication, exempts the State from its operation. Whether the State has in fact been exempted by necessary implication from being bound by an Act depends on the fair construction of the Act in question. In this case, Bachawat J. observed that: “Particular care should be taken in scrutinising the provisions of a taxing or a penal Act. 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. If the only penalty for an offence is imprisonment, the State cannot be convicted of the offence, for the State cannot be locked up in prison. If the penalty for the offence is fine and the fine goes to the consolidated fund of the State, it may be presumed that the penal provision does not bind the State, for the legislature could not have intended that the State will be the payer as well as the receiver of the fine.

Presumably, the Union is not bound by the Central Income-tax Act because if it paid income-tax, it will be both the payer and the receiver. Likewise, a State is prima facie not bound by a State Agricultural Income-tax Act where the tax is receivable by it. Moreover cases may conceivably arise where express provisions in a statute binding the State in respect of certain specific matters may give rise to the necessary implication that the State is not bound in respect of other matters.”[23] In this case, the State of West Bengal was carrying out trade without a license and without paying the fee as required under s.218 of the Calcutta Municipal Act 1952. According to s.541 of the Act, these offences were punishable with a fine that was to be collected by the Corporation. The court held that the State was bound by this Act because the fine recovered would not go to the Consolidated Fund of the State but to the Corporation’s fund and hence there was no implication in the Act that the State should not be held liable for the offence.[24] In Union of India v. Jubbi,[25] the question arose as to whether s.11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 applied to cases where the Government was the landlord. The section provided the tenants with the right to procure the interests of landlord on payment of compensation. The court held that it would apply even when the Government was the landlord because there was nothing expressly or by necessary implication mentioned in s.11 that exempted the State.

Further, since the basis of the Constitution is founded on equality and absence of arbitrary discrimination, the presumption would be that the law that seeks to provide the tenant with security of tenure should bind all landlords no matter whether the landlord is the Government or not.[26] There have been a number of instances when the judiciary has stated that the State is in fact bound by certain legislations even though it is not mentioned in the Act itself. Some instances are as follows: In Samatha v. State of Andhra Pradesh,[27] the word ‘person’ in the Andhra Pradesh Scheduled Area Land Transfer Regulations 1959, that prohibits a ‘person’ from transferring land to non tribals, was held to include State and hence prohibited transfer of government land to non tribals. This is in clear distinction to the decision of the House of Lords in the case of A.G. v. Hancock as discussed earlier. In State of Bihar v. Sonabati Kumari,[28] the supreme court held that if a temporary injunction is disobeyed by the State, then property of the State is liable to be attached as under Order 39 Rule 2(3) of the Code of Civil Procedure.

Thus, it held that the State was bound by the CPC just as any other citizen. The court in the case of Municipal Corporation of Amritsar v. Senior Superintendent of Post Offices,[29] held that unless the Parliament provides otherwise, property of the Union is exempt from taxation imposed by a state law as per A.258 of the Constitution. The court in Lucknow Development Authority v. M.K. Gupta,[30] stated that the Consumer Protection Act applies to the State just as it applies to any other citizen because the Act does not expressly or impliedly indicate that the State should be excluded from the purview of the Act. In cases of Welfare Legislations, even where the act does not apply to the Government, an agent or instrumentality of the Government, which is not even a department of the Government may be bound by the Act. In Hindustan Steel Works Construction Ltd. v. State of Kerala,[31] a company that was fully owned by the Central Government was held to be bound by the Kerala Construction Workers Welfare Funds Act 1932 although the act was not applicable to the Central Government. Conclusion Through the above the discussion, the difference between the Common Law and the law in India when it comes to interpretation of statutes affecting the crown or the state, can be seen. While the common law works on a presumption of immunity of the crown, the Indian law is applicable to the State just as it would be applicable to any other citizen. The evolution of the law and principles over the years has been developmental and progressive and the rules have proved to be efficient external aids to interpretation.

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[1] GP Singh, Principles of Statutory Interpretation (12th edn, Lexis Nexis Butterworths Wadhwa Nagpur 2010) 726-727.

[2] Francis Bennion, Bennion on Statutory Interpretation (5th edn, Lexis Nexis 2008) 206.

[3] [1561] 75 ER 339 (KB).

[4] Willian v. Berkley [1561] 75 ER 339 (KB) 240.

15] AIR 1947 PC 34.

[6] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 35.

[7] Magdalen College, Cambridge Case (1616) 11 Co Rep 66b.

[8] ibid. 70b, 72a, 73b.

[9] Matthew Bacon, A New Abridgment of the Law (7th edn, A Strahan 1832) 462. [10] Halsbury’s Laws of England vol 36 (3rd edn, Lexis Nexis 1952) 431. [11] (1955) 1 All ER 753. [12] Madras Electric Supply Corporation v. Boarland (1955) 1 All ER 753, 759. [13] (1940) 1 All ER 32. [14] Singh (n 1) 728. [15] AIR 1947 PC 34. [16] Bombay Province v. Bombay Municipal Corporation AIR 1947 PC 34, 36. [17] (1990) 1 All ER 1. [18] Lord Advocate v. Dumbarton District Council (1990) 1 All ER 1, 9, 10, 15. [19] Singh (n 1) 730. [20] Ibid. 731-732. [21] AIR 1967 SC 997. [22] State of West Bengal v. Corporation of Calcutta AIR 1967 SC 997, 1008. [23] Ibid.1020. [24] ibid. [25] AIR 1968 SC 360. [26] Union of India v. Jubbi AIR 1968 SC 360. [27] AIR 1997 SC 3297. [28] AIR1961 SC 221. [29] (2004) 3 SCC 92. [30] AIR 1994 SC 787. [31] AIR 1997 SC 2275.

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