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.

 SUPERINTENDENT & LEGAL REMEMBRANCER,STATE OF WEST BENGAL V. CORPORATION OF CALCUTTA [1966] INSC 259; AIR 1967 SC 997; 1967 (2) SCR 170 (7 December 1966)

Exceptions: Presumption that Statute does not Bind the crown

The presumption that Crown is not bound by the Statute may not have universal implication as the State may legislate to bind the crown as is established by Australian Authorities. Further the presumption would hold good in the cases where there is express provision to this or ,atleast, the same can be clear by the implications.[Blogger]

State may Legislate to Bind the Crown

This principle is not a hard and fast rule, but a rule of construction intended to give effect to the intention of the legislature. The grounds of the presumption have been variously expressed, but, whatever the origin of the rule may be, it is now well established that prima facie legislation does not apply to the government of the country, but to the persons in the country who are subject to the legislative powers of the parliament. In the case of a unitary State the application of the principle does not meet certain difficulties which arise under a federal organization of legislative and other governmental power. In the case of a unitary State the principle may be expressed by saying that the King in Parliament is to be presumed to legislate for subjects and not for the Crown, unless a contrary intention clearly appears. In a federal system the States or provinces cannot be described as "subjects" of the federal government, but, as already shown by the passage in the Engineers' Case [(1920) 28 C.L.R., at p. 153.], the Commonwealth Parliament may legislate so as to bind a State. Similarly, a State may legislate so as to bind the Commonwealth (Pirrie v. McFarlane).  [1925] HCA 30; (1925) 36 C.L.R. 170.

 Other exceptions to the Rule of Presumption

The application of this particular rule of construction in a federal system was carefully considered in R. v. Sutton[1908] HCA 26; (1908) 5 C.L.R. 789. (the Wire Netting Case), where it was held that the rule of construction which prevented the Crown being affected by statutes in the absence of express mention or necessary implication did not apply in respect of all governments in the world which represented the Crown, but only in respect of the government which had authority in the community for which the parliament was legislating. The Commonwealth Parliament has authority in the community of the Commonwealth; a State Government has authority in the community of the State. Mr. Justice O'Connor said that the rule was "applicable in the inquiry whether a Commonwealth Act binds the King as representing the Commonwealth. But where the inquiry is whether the Commonwealth Act binds the King as representing one of the States it can have no relevancy" [1908) 5 C.L.R., at p. 806.] All the Justices concurred in this view—see the report [(1908) 5 C.L.R., at pp. 796 (Griffith C.J.), 801 (Barton J.), 814 (Isaacs J.), 817 (Higgins J.)]. 

The same principle was applied in the Steel Rails Case—Attorney-General of New South Wales v. Collector of Customs for New South Wales  [1908] HCA 28; (1908) 5 C.L.R. 818.  In that case the Court was considering whether a Commonwealth Act (the Arbitration Act) which expressly purported to bind the States could validly do so. 

In view of the explicit reference to the States in the Act, any consideration of the question whether or not a Commonwealth Act should be presumed not to bind the States unless they were expressly mentioned would have been completely irrelevant. No reference whatever to this question was made in the Engineers' Case, in which many decisions were reviewed and some were expressly overruled.Minister for Works for Western Australia v Gulson [1944] HCA 27; (1944) 69 CLR 338 (3 October 1944)[per Latham C.J.]


Qualification of Crown as per constitutional Theory


It has been decided by the highest authority that, in constitutional theory, the Crown is one and indivisible (Williams v. Howarth). It is by the Crown that all legislative and administrative authority is exercised throughout the Empire, although in each constitutional area such authority can be exercised by the Crown only through the agencies of the appropriate parliament and the appropriate group of constitutional ministers, so that, legalistically, it would be more strictly accurate to speak of the State of Western Australia in the right of the Crown than of the Crown in the right of the State of Western Australia (Theodore v. Duncan). Thus, the prerogatives of the Crown are the prerogatives of a single, universal Crown, and enure for the benefit of each and every part of the Empire, save to the extent to which in any part any particular prerogative has been abrogated or diminished (In re Bateman's Trust). The principle was applied by this Court inFederal Commissioner of Taxation v. Official Liquidator of E. O. Farley Ltd in relation to competing rights of the Crown as creditor to be preferred above other creditors of equal degree, for the benefit of different treasuries. The constitutional principle that the Crown is one and indivisible is not limited to cases in which it is the scope of the prerogative which is in question. This is clear from Williams v. Howarth. It applies to the Crown in all its capacities; but it is not inconsistent with this that the Crown should, by appropriate parliamentary action, be shorn, in certain of its fields, of rights or immunities which it retains in others. The theory of the unity of the Crown produces, in relation to the rule now in question for the construction of statutes, the twofold result that, first, the Crown in all its capacities is prima facie not bound by a statute made in any part of the Empire unless this is provided for expressly or by necessary implication, and second, a provision that a statute binds the Crown binds it prima facie in all its capacities unless a contrary intention appears. The second of these results is established by such cases as Attorney-General for Quebec v. Nipissing Central Railway Co. and Pirrie v. McFarlane: the first is a corollary of the second. It is true that a different opinion was expressed in R. v. Sutton, as one of the grounds for holding that the Government of New South Wales was bound by a Commonwealth Customs Act; but the ghost of the heresy of Crown schizophrenia propounded in that case was laid in such explicit terms in theEngineers' Case (where R. v. Sutton was cited to lead up to an observation that "the utmost confusion and uncertainty exist as the decisions now stand") that I feel some surprise at the attempt which has been made to resuscitate it.

Minister for Works for Western Australia v Gulson [1944] HCA 27; (1944) 69 CLR 338 (3 October 1944)[perRich J]