Royal Charter

Opinion of  Mr M C Setalvad in respect of Royal Charter as Granted to IEI in the year 1935 

Summary of the Opinion 

A reference was made in 1958 to Mr M C Setalvad, the then Attorney  General of India, requesting for his opinion in respect of the  following: 

  1. If the Royal Charter as granted to IEI on 9th September 1935,  was valid and whether IEI continues to be in the eye of law a  valid body corporate and politic in view of constitutional  changes in India on and after 15th August 1947. 
  2. Whether it is necessary for the IEI to request the Indian Parliament to enact a special statute granting to the IEI the  status of body corporate. 
  3. Whether any amendments of the Bye-laws of the IEI are to be  ratified by the Privy Council or any other authorities in terms of provision of Clause 18 of the said Charter before  implementation. 

In his opinion dated 25.7.1958, Mr Setalvad relied upon the provisions of Government of India Act 1935, Indian Independence Act 1947, Abolition of Privy Council Jurisdiction Act 1949. His  opinion, in short, were as follows :- 

  1. The Royal Charter granted in the year 1935 was a valid written  instrument containing a grant by the Crown, made in the form  of Letters Patent with the Great Seal having the effect and  authority of an Act of Parliament and repeal of such a Charter is 

only possible by another Act of Parliament. This Act of granting  of Royal Charter had not been repealed by any other Act by the  Indian Parliament. 

  1. IEI continuous to be in the eyes of law a valid body corporate  and politic notwithstanding the Constitutional changes in India  on or after 1947. 
  2. The Charter granted to IEI remains in full force after August 15,  1947, and it is also not necessary for IEI to request the Indian  Parliament to enact a special statute granting to it the status of a  Body Corporate 

and further that 

  1. Since after the introduction of the Constitution of India, the  Privy Council does not have the authority in terms of Clause 18  of the Charter to allow or disallow any revision of the Bye-laws  and also for the reason of Indian Parliament not enacting any  law to recognise the Charter in any other form, reference to the  Privy Council or any authority in India in respect of revision of  Bye-laws is not necessary. 

Text of the Opinion 

ex parte: The Institution of Engineers (India) 

having its Office at 

8 Gokhale Road, Calcutta – 20 ………….. QUERIST 

  1. The main question for consideration is whether the Querist which  was constituted a body corporate by a Royal Charter and the Letters  Patent issued under the King’s Sign Manual on the 9th of September,  1935 under an Order in Council of His Majesty dated the 13th of  August 1935 continues to be in the eyes of the law a body corporate  notwithstanding the changes in the Indian constitutional structure  since 1935.
  2. Section 2(1) of the Government of India Act of 1935 inter alia  provided that “All rights, authority and jurisdiction heretofore belonging to His Majesty the King-Emperor of India, which appertain  or are incidental to the Government of the territories in India for the  time being vested in him … … are exercisable by His Majesty, except  in so far as may be otherwise provided by or under this Act.” Thus  notwithstanding the enactment of the Act the powers of the King  under his prerogative remained unaffected except as otherwise  provided by the Act. 
  3. One of the prerogatives of the Crown is to issue orders in Council  and Letters Patent conferring rights and privileges, Such prerogative  is not confined to the British Islands, but extends to all parts of the  Commonwealth, as fully in all respects as to England, unless  otherwise prescribed by United Kingdom or local enactment  (Halsbury’s Laws of England, 3rd Edition, Vol. VII, paragraph 466).  The principal document by means of which the Crown carries into  effect or makes known its intentions are inter cilia among others  Letters Patent under the Great Seal and Charters (Halsbury’s Laws of  England, 3rd Edition, Vol. VII, paragraphs 508 and 713). Thus the  Crown could after the passing of the Government of India Act validly  constitute by Letters Patent and a Charter a body corporate in India. 
  4. The Royal Prerogative to promulgate Orders in Council has been  regarded “as what is left of the original sovereign power of the Crown  to legislate without the authority of the Houses of Parliament … … the  essence of this kind on legislation by the King in Council without the  intervention of Parliament is that it is original and in no sense  delegated” (Report of Committee on Ministers’ Powers, 1932, pages 24- 25, para 5). “The prerogative of the Crown is defined by A V Dicey in  his ‘Law of the Constitution’ as ‘the residue of discretionary or arbitrary 

authority which at any given time is legally left in the hands of the  Crown’. In other words the Royal Prerogative is what is left of the  original sovereign power of the Crown to legislate without the authority  of the Houses of Parliament” (The New Constitution of India, 2nd  Edition, 1941, G N Joshi, pp. 101 and 102).

  1. What is the effect of a Royal Charter containing a grant by the Crown made in the form of Letters Patent with the Great Seal? “A Royal  Charter is a written instrument, containing a grant by the Crown ….. made in the form of Letters Patent with the Great Seal ….. .An  instrument of grant … has the effect and authority of an Act of  Parliament and such a Charter can only be repealed by another Act of  Parliament. ….. It is at the pleasure of the Crown to grant or withhold a  charter of incorporation; but when once granted and accepted, the  Charter is irrevocable, except with the full, and perhaps the unanimous concurrence of the grantees or their successors; for the Crown cannot,  by its prerogative, destroy or dissolve a corporation.” (Grant’s Law of  Corporation, 1850, pp. 9 and 10). 
  2. The result then of the exercise of the Royal Prerogative granting the  Charter to the Querist on the 9th of September 1935 was that the Querist  was created a Corporation sole by the exercise by the King of his  Prerogative power of legislation which had the effect and authority of an  Act of Parliament. The Charter created in exercise of this Prerogative  legislative power by the King had effect in British India as if it were a  statute passed by Parliament. 
  3. The Indian Independence Act provided inter alia by subsection (3) of  section 18 that “Save as otherwise expressly provided in this Act, the  law of British India and of the several parts thereof existing immediately  before the appointed day shall, so far as applicable and with the  necessary adaptations, continue as the law of each of the new  Dominions”. The Charter was as already pointed out “the law of  British India” before the 15th of August 1947. It continued to be such  law notwithstanding the passing of the Indian Independence Act by  reason of sub-section (3) of section 18. The Indian Legislature  constituted by sections 6 and 8 of the Independence Act undoubtedly  had the power to legislate so as to affect the law of British India even though it may have been made by an Act of Parliament. However, the  Indian Legislature did not exercise such power in regard to the  Charter of the Querist. The Charter therefore remained in full force  and operation after the 15th of August, 1947.
  4. Article 372 of the Constitution of India provided inter alia that  “subject to the other provisions of this Constitution, all the law in  force in the territory of India immediately before the commencement  of this Constitution shall continue in force therein until altered or  repealed or amended by a competent Legislature or other competent  authority.” The Charter was at the date of the commencement of the  Constitution a law in force in the territory of India. It therefore  continued in force after the enactment of the Constitution and is still a  valid and binding law not having been repealed by a competent  Legislature or competent authority. 
  5. The Querist therefore continues notwithstanding the constitutional changes in India to be in the eyes of the law a valid body corporate  and politic. 
  6. Questions have been raised whether the Querist needs any fresh  recognition of its status from the Government of India or whether it is  necessary for the Querist to request the Indian Parliament to enact a  special statute granting to the Querist the status of body corporate. In  view of what has been stated in the preceding paragraphs the courses  suggested are unnecessary. 
  7. A question has been raised in regard to the construction of the  clauses 2(a) and (b) of the Charter. In my view those clauses are wide  enough to cover engineering in all its branches including civil,  mechanical, electrical, tele-communication, chemical and aeronautical  engineering. 
  8. A difficulty has arisen in regard to clause 18 of the Charter which  provides for the making and the revocation, alteration or amendment  of the Bye-laws of the Querist. The clause provides that “no such  Bye-law, revocation, alteration or amendment shall take effect until  the same has been allowed by the Lords of Our Privy Council of  which allowance a Certificate under the hand of the Clerk of Our  Privy Council shall be conclusive evidence.” It appears that the  Querist was in 1950 desirous of revising its then existing Bye-laws  and it approached the Government of India for the purpose. It appears

to have been suggested to the Querist that it should approach His  Majesty’s Privy Council for the proposed revision in terms of clause  18 of the Charter. Thereupon the Querist approached the Privy  Council and towards the end of the year 1951 the Privy Council  permitted the revision proposed by the Querist. The revised Bye-laws  were thereupon adopted from the 1st March 1952. 

  1. It appears to me that the procedure followed in regard to the  revision of the Bye-laws was incorrect. Notwithstanding the provisions of clause 18 of the Charter, the Privy Council would not  have, I think, authority after the introduction of the Constitution to  allow any revision of the Bye-laws. The authority which the Privy  Council had under that clause was possessed by it as a body  subordinate to the Crown who could exercise the Royal Prerogative in  British India. The authority of the Crown having ceased the Privy  Council could not function under that clause of the Charter. 
  2. I have dealt with the important questions raised in the instructions.  I think it unnecessary to answer the questions seriatim. 


M C Setalvad