King’s prerogative

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 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 of 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; any, likewise, the king may take the benefits of any particular act, though he be not specially named.” (Quoted at p. 355 of Holdsworth, A History of English Law, Vol. X).

9. 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. 221).

10. 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.

11. 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 republication 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 republication 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 crime – analogous to the ‘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 (1947) 330 U.S. 258 : 91 L.Ed. 884 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 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 (1949) 337 U.S. 346 : 93 L. Ed. 1406 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 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 (1949) 337 U.S. 682 : 93 L. Ed. 1628 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 (1904) 1 C.L.R. 406 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.

12. 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 clause (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 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.


Categories: CIVIL