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Thursday, June 3, 2010

Crown Liablity: International Perspective

The following case whose link is provided at the end of the post sums up the International Practices adopted in regard to Crown.One may like to refer to this aptly summed ip ruling of Supreme Court of India on the Position of Crown. I have not given the citations of the cases referred to in this post as only limited readers would be interested.[Blogger]
  Observations of Some Popular Commentators
 In Halsbury's Laws of England, 3rd Edn., Vol. 7, in Part 5 of the Chapter on "Constitutional Law" under the heading "The Royal Prerogative", the Royal prerogatives are enumerated and their limitations are given. In para 464 it is stated :

"The general rule is that prerogatives cannot be affected or parted with by the Crown,  except by express statutory authority." The prerogative right can be taken away by law because the law is made by the Crown with the assent of the Lords and the Commons. It can be taken away only by law to which the Crown is a party. Whether a particular statute has taken away such right pertains to the domain of the rule of construction. The relevant rule of construction evolved by judicial decisions in England may be stated thus:

"At all events, the Crown is not reached except by express words or by necessary implication in any case where it would be ousted of an existing prerogative or interest." 

It is said much to the same effect in Maxwell's Interpretation of Statutes, 11th Edn., at page 129, thus :

"It is presumed that the legislature does not intend to deprive the Crown of any prerogative, right or property, unless it expresses its intention to do so in explicit terms, or makes the inference irresistible."

The same rule is given in Bacon's Abridgment 7th Edn., The legal position in England may be summarised thus :

"The substantive rule of law is that the prerogative of the Crown can only be taken away by law. The rule of construction evolved by the courts to ascertain the legislative intention is, that it is presumed that a statute has not taken away the prescriptive right unless it has expressly or by necessary implication done so."

There is an essential distinction between a substantive law and a rule of construction and that is well expressed by Craies in his book "On Statute Law", 6th Edn., at p. 10, thus :

"A rule of law, e.g., the Rule against Perpetuities or the Rule in Shelley's case (abolished in 1925), exists independently of the circumstances of the parties to a deed, and is inflexible and paramount to the intention expressed in the deed. A rule of law cannot be said to control the construction of a statute, inasmuch as a British statute is itself part of the supreme law of the land and overrides any pre-existing rules with which it is inconsistent. A rule or canon of construction, whether of will, deed or statute, is not inflexible, but is merely a presumption in favour of a particular meaning in case of ambiguity. This was well expressed by Bowen, L.J. in L. N. W. Ry. v. Evans:

'These canons do not override the language of a statute where the language is clear : they are only guides to enable us to understand what is inferential. In each case the Act of Parliament is all powerful, and when its meaning is unequivocally expressed the necessity for rules of construction disappears and reaches its vanishing point."

The same principle was stated by Bhashyam Ayyangar, J., in Bell v. The Municipal Commissioners for the City of Madras thus :

"These compendious canons of interpretation which are in the nature of maxims can only be regarded as mere guides to the interpretation of Statutes and ought not to be applied as if they were statutory clauses, enacted with all the precision and provisos of an Interpretation Act."

Franfurter, J., said to the same effect in United States v. United Mine Workers of America thus :

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

Even in England this rule of interpretation has not been treated as inflexible. It is gradually losing ground in many branches of law. The incongruity of the rule of discrimination in favour of the Crown was pointed out by Glanville L. Williams in his treatise on "Crown Proceedings", at p. 53 :

"The rule originated in the Middle Ages, when it perhaps had some justification. Its survival, however, is due to little but the vis inertiae."

The author continues at p. 54 :

"With the great extension in the activities of the State -and the number of servants employed by it, and with the modern idea, expressed in the Crown Proceedings Act, [compare in this connection Art. 300 of our Constitution], "that the State should be accountable in wide measure to the law, the presumption should be that a statute binds the Crown rather than it does not."

The next question is, how far and to what extent the common law of England relating to the prerogatives of the Crown has been accepted as the law of our country? Nothing has been placed before us to show that the entire body of the common law pertaining to prerogatives was accepted as the law throughout India. India at the relevant time comprised Provinces and Native States. As Bhashyam Ayyangar, J., pointed out in Bell v. The Municipal Commissioners for the City of Madras"the prerogatives of the Crown in India-a country in which the title of the British Crown is of a very mixed character-may vary in different provinces, as also in the Presidency towns as distinguished from the mofussil.

'The determination, with anything like legal precision, of all the prerogatives of the British Crown in India is by no means an easy task." It is well-known that the Common law of England was applied as such in the original sides of the High Courts of Calcutta, Bombay and Madras, and that in the mofussil courts the principles embodied in the common law were invoked in appropriate cases on the ground of justice, equity and good conscience. It cannot, therefore, be posited that either the entire body of common law of England relating to prerogatives of the King or even the rule of construction as forming part of that law was accepted as law in every part of the country. It has to be established whenever a question arises as to what part of the common law was accepted as the law in a particular part of the country.

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