Generalis Specialibus Non Derogant
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This article is written by Bhanvi Juvekar, a law student at Unitedworld School of Law, Karnavati University, Gandhinagar.

Introduction

Laws are made to regulate the activities of daily life in a way so that no wrong takes place. However, sometimes a special law is required for a specific set of problems arising in a special area of law.

Law is a diverse field. There are different branches of law such as tax law, labour law, employment law, technology law etc.

Why are these laws in place?

These laws are in place today because a need was realised to form laws, especially for a field. But even these bring problems of their own. In some cases, a party may benefit from a general law provision but suffer from a special law provision and vice-versa. That is where this maxim comes in.

Generalia specialibus non derogant is a Latin maxim. It is a maxim used for statutory interpretation.

  • Generalia stands from general;
  • Specialibus stands for special.

When interpreted, it means that general laws do not prevail over special laws or, the general does not detract from specifics. [1]

Justice Griffith said in R v Greenwood, [2]

“The maxim generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of a general statute must yield to those of a special one.” [3]

When a law is questioned before the courts, the courts assume that the legislature enacted the law (under discussion) keeping in mind the welfare of society at heart. Thus, repealing a law is not favoured and is done only under exceptional circumstances. In case of conflict of interpretation of statutes, this maxim is applied.

This can be seen in Rogers v United States: [4]

“As a corollary from the doctrine that implied repeals are not favoured, it has come to be an established rule in the construction of statutes that a subsequent act, treating a subject in general terms and not expressly contradicting the provisions of a prior special statute, is not to be considered as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all….” [5]

The provisions of the special rule are preferred over general rule as they are meant to address that subject in greater detail. This may manifest as exceptions to the general rule as seen in:

Lalonde v Sun Life, [6] Justice Gonthier had used these words in his opinion:

“The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject-matter of the rule from the general Act. [7]

How is this Maxim important?

This maxim has been widely used in cases, where there is a conflict between general and special provisions of an act or different acts. It has helped our judiciary in the interpretation of statutes.

During interpretation of statutes when we are looking for context and purpose we use:

  • Noscitur a sociis;
  • Ejusdem Generis;
  • Generalis Specialibus non derogant.

Using this maxim along with other interpretation tools provides a better understanding of various statutes thus aiding in implementing the law in a better fashion and preventing repeal.

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Situations when Generalis Specialibus Non Derogant is used

This maxim is used in the interpretation of statutes. To decide which statute is valid in which case, there should be a conflict between an earlier and a later statute. Examples of this can be seen further in this assignment under the topic: Case Law.

There could be a question on the scope of the law in question. What is the scope of a special law and what is the scope of general law with respect to the problem?

Example: Suresh Nanda vs C.B.I [8]

There are 2 acts that provide for impounding of passports:

  • Criminal Procedure Code; [9]
  • Passports Act. [10]

In this case, the petitioner lost access to his license as the result of the procedures of a case in which he was the accused. His passport was seized by C.B.I., thus, he couldn’t travel.

In this case, there was a conflict between section 104 of CrPC and section 10(3) of the Passport Act.

The court decided that:

Since impounding of passports are governed by special legislation namely the passports act, normal CrPC provisions concerning impounding shall not be attracted, the courts or the police can at best seize a passport, but for impounding (which is far more enduring and continuous possession) passport authority would have to be approached– and the authority can take a decision on whether it would be impounded or not…[11]

In this case, the scope of the law under CrPC was defined by saying that the courts or the police cannot impound but can only seize a passport. As impounding a passport has far-reaching and permanent consequences, special law provisions will prevail to provide a better remedy to the petitioner.

Generalia Specialibus Non Derogant in case of Non-Obstante Clauses

In the case of the non-obstante clause (clauses in which notwithstanding is used), it is important to note the intention of the legislative body. The intention of the legislative body defines the aim with which that particular act was enacted.

In the case, KSL and Industries Limited (“KSL”) v. M/s Arihant Threads Limited (“Arihant”) and Others: [12]

The property of Arihant was to be auctioned as a result of an inability to pay the debt to IDBI bank. IDBI bank had an ex-parte order in this regard. But Arihant was unable to pay and the highest bidder for their property was KSL. Arihant opposed the selling of their property to KSL by filing this suit.

There was a conflict between Sick Industrial Companies (Special Provisions) Act, 1985 (“SICA”) and Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“RDDBFI”).

Justice Thakker, in this case, said that since section 34 had an overriding clause of RDDBFI, it was supposed to be considered superior to SICA. This was based on the maxim- Generalis Specialibus non Derogant– the later general act did not repeal the erstwhile special act (in this case SICA).

But, Justice Altamas Kabir observed that in view of a specific exception to Section 34 (1) carved out in Section 34 (2) which states that the provisions of RDDBFI Act shall be in addition to and not in derogation of SICA, it is clear that the intention of the legislature was that SICA would prevail over RDDBFI. [13]

In this case, the interpretation rule(Generalis Specialibus non Derogant) was not followed.

The Supreme Court relied upon the observations made in LIC v. D.J Bahadur [14] wherein it has been held that in determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the perspective. [15] For certain purposes, an act may be general and for certain other purposes, it may be special. [16] Thus, to give justice to the purpose of SICA it was held as a specific law.

This judgement is important as it discouraged customary and mechanical application of this maxim and set a precedent where the objective of the law and its purpose in that particular case was given utmost importance.

Case Law

Following are the case laws where this maxim was applied:

  1. Azad Transport Co. v. State of Bihar (2016)

Tax is a specialized field. VAT is a special provision and rules in CrPC are considered to be of a general nature. The government made law with respect to a particular field thus, the specific law gains superiority over general laws.

  1. State of Gujarat v. Patel Ranjibhai [17]

Conflict arose with respect to section 33(6) and section 35 of the Bombay Sales Tax Act,1959. It was decided that with respect to unregistered dealers 33(6) will prevail over 35 as it was considered a special provision and dealt with their interests in a better manner.

Limitations of Generalis Specialibus non Derogant

The meaning of this activity implies that specific law is given superiority over general law enacted later.

In the case of General Manage Telecom v. M. Krishnan and Anr, [18] it was held that, if there is any claim regarding telephone bills then it is to be addressed under the Indian Telegraph Act, 1985 and not under the Consumer Protection Act. This is through the maxim of Generalis Specialibus non Derogant– by application of this maxim, the Consumer Protection Act is considered general law.

But, the application of this maxim negates the use of the principle:

  • Harmonious construction.
  • Principle of the election.

It is evident that more than one form of remedy exists for the same issue under two different acts. Thus, the courts should perform harmonious construction and principle of election.

Principle of election means that the remedy to be applied should be left to the discretion of the concerned/aggrieved individual when there is more than one remedy available.

Even if the remedies do not comply and are different to the point of inconsistency- the concerned person should choose which remedy he/she prefers. This is because each remedy is available and has been made available by the legislature for the welfare of aggrieved parties.

However, the mechanical application of this maxim denies a person a chance to choose and by implication, the special act is given superiority. This can give rise to unjust and dissatisfactory judgements.

Conclusion

Generalis Specialibus non Derogant means erstwhile special law is given superiority over later general law. This has been followed in many cases in India as well as the US and other countries such as Canada and the UK.

But, mechanically applying this maxim yields no good. It is important to note that:

  • Special law and general law are to be assigned to acts according to the case in question.
  • The intention of the legislature in enacting a specific law has to be taken into account.
  • The courts should always check first if the doctrine of harmonious construction and Principle of election can be applied or not before applying this maxim.

References

[1] https://en.wikipedia.org/wiki/Statutory_interpretation accessed on 12 April 2020

[2] R. v. Greenwood, [1992] 7 O.R. (3d) 1

[3]http://www.duhaime.org/LegalDictionary/G/GeneraliaSpecialibusNonDerogant.aspx accessed on 12 April 2020

[4] Rodgers v United States, (1902) U.S. 83 185

[5] Rodgers v United States, (1902) U.S. 83 185

[6] Lalonde v Sun Life, [1992] 3 SCR 261

[7] Justice Gonthier in Lalonde v Sun Life

[8] Suresh Nanda vs C.B.I [2008] SCC 3 674

[9] Criminal Procedure Code, 1973

[10] Passports Act, 1967

[11] Bharat Chugh, ‘Courts/Police cannot impound passports…Supreme Court holds’ (BHARAT CHUGH ON THE LAWS OF INDIA, February 8, 2013) https://advocatebharatchugh.wordpress.com/tag/passport-impound-how-to-release/ accessed on 14 April 2020

[12] [2014] 123 CLA 198 (SC)

[13] Satish Padhi & Vyapak Desai SUPREME COURT CLARIFIES: RECOVERY APPLICATION BY BANKS STAYED AGAINST SICK COMPANY (Dispute Resolution Hotline) http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/newsid/2695/html/1.html?no_cache=1 accessed on 14 April 2020

[14] (1981) 1 SCC 315

[15] Satish Padhi & Vyapak Desai SUPREME COURT CLARIFIES: RECOVERY APPLICATION BY BANKS STAYED AGAINST SICK COMPANY (Dispute Resolution Hotline) http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/newsid/2695/html/1.html?no_cache=1 accessed on 14 April 2020

[16] Ibid.

[17] 1979 AIR 1098

[18] MANU/SC/1579/2009: AIR 2010 SC 90


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