GENERALIA SPECIALIBUS NON DEROGANT

Legal position:

Generalia specialibus non derogant is a Latin maxim which means universal things do not detract from specific things. This maxim of law says that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision. The general provisions must acknowledge to the specific provisions of law. It is a basic principle of statutory interpretation.

Maxims relating to the interpretation of written instruments occupy (with the comments upon them) a lot of space in books connecting to statutory interpretation[1]. But if these maxims, standing alone and taken as absolute statements, are liable to gross misuse. Most of them are, at the greatest, only prima facie rules; “good servants, but bad masters.” A rule of construction should constantly be understood as containing the saving clause, “unless a contrary intention appears by the instrument.”

Parliament in passing a Special Act devotes its entire consideration to a particular subject. When General Act is then passed, it is logical to believe that Parliament has not altered the former Special Act. When legislature has given its deliberation to a separate subject and made provision for it, the presumption is that a following general enactment is not intended to interfere with special provision unless it exhibits that intent very noticeably. Only by the definite provision, earlier and special legislation is repealed or derogated or altered form.

This statute has been propounded in various cases.

In R v Greenwood[2], Justice Griffiths of the Ontario Court of Appeal wrote “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.”

Justice Locke wrote, in Greenshields v. The Queen “In the case of conflict between an earlier and a later statute, a repeal by implication is never to be favored and is only achieved where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together… Special Acts are not annulled by general Acts unless there is some express reference to the previous legislation or an essential inconsistency in the two Acts standing together which prevents the maxim generalia specialibus non derogant being applied.”

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In India:

Generalia Specialibus Non Derogant is a legal maxim, used in India, with the following meaning: Generalia specialibus non derogant, or, in other words “where there are general words in a later Act capable of reasonable and sensible application without extending to subjects specially dealt with by the earlier legislation, you are not to hold that earlier or special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of particular intention to do so[3].”

The maxim is regarded as a ‘cardinal principle of interpretation’ in State of Gujarat v. Patel Ramjibhai[4] and is characterized as a well-recognized principle. The general provision, however, controls cases where the special provision does not apply as the special provision is given effect to the extent of its scope[5]. Thus, a particular or a special provision controls or cuts down the general rule[6].

The principle is applied when there is a conflict between two statutes or two provisions of the same statute.

In Paradip Port Trust v. Their Workmen[7], the Supreme Court was called upon to decide on the matter that whether representation by a legal practitioner was permissible in an industrial dispute before adjudicatory authorities contemplated by the Industrial Disputes Act. By applying this maxim, the Supreme Court held that the special provision in the Industrial Disputes Act would overcome in that regard over the Advocates Act which was held to be a general piece of legislation relating to subject-matter of appearance of lawyers before all courts, tribunals and other authorities, whereas Industrial Disputes Act was concerned with the representation by legal practitioners.

In Dharam Pal Sat Dev v. CIT[8] and Nandlal Sohanlal v. CIT[9], this maxim was applied when the questions involving to assessments of a firm and its partners arose under the Income-tax Act, 1961 where the dissolution of the firm and its succession are held to be governed by the Special Act viz., the Income-tax Act and not the Partnership Act. The practical view of the nature of a partnership cannot be taken in applying the law of income-tax. Where a special provision is made in derogation of the provisions of the Indian Partnership Act, the effect is given to it. Where the provisions of the Indian Income-tax Act are clear, resort cannot be had to the provisions of an alternative statute.

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It is to be seen whether the statute is general or special to interpret it.

In determining whether a statute is special or a general one, the emphasis must be on the principal subject-matter plus the particular perspective. For some purposes, an Act may be general and for certain other purposes it may be special and distinction cannot be blurred when finer points of law are dealt with.

In Ispat Industries Ltd. v. Commissioner of Customs[10], Hon’ble Justice Markandey Katju has mentioned to Mimansa rules of interpretation of the ancient times while deciding an appeal under Custom Tariffs Act, 1975. The question of decision elaborated the interpretation of Section 14 of the Customs Act and some relevant rules especially Rule 9(2)(a) of the Customs Valuation (Determination of Prize of Imported Goods) Rules, 1988. According to the Court, every legal system has a hierarchy of norms. Whenever there is a clash in higher layer of this hierarchy and lower layer of this hierarchy, the norm in higher layer would triumph. The hierarchy in our country has the Constitution right at the top. Next comes the statutory law, that may be Parliamentary law or law made by the State Legislature. Third is delegated or subordinate legislation which may be in system of rules and regulations made under the Act. The last in the hierarchy are administrative orders or executive instructions.

Recent Use and Effect

In Dilawar Singh vs. Parvinder Singh @ Iqbal Singh & Anr.[11], concerning the interplay between Section 19 of the Prevention of Corruption Act, 1988 and Section 190 and 319 of the Code of Criminal Procedure, 1973, with reference to the maxim ‘Generalia Specialibus non Derogant’ the Court held that if a special provision has been made on a certain matter, that matter is excluded from the general provisions.

In S.Rajeshkumar vs The Superintendent of Police[12], it was propounded to interpret the question of law that arose. There was a conflict between Tamil Nadu Special Police Subordinate Service Rules, 1978, framed under Article 309 of the Constitution of India, is a delegated legislation, whereas Juvenile Justice (Care and Protection of Children) Act, 2000 is a special enactment. It is trite law that special enactment prevails over general law. It was held that the special provision of Juvenile Act had to be applied so as to fulfill the purpose of that specific legislation and overcome the stigma.

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Importance

The importance of this maxim is that:

  • It helps the judiciary in interpretation of statute whenever conflict arises.
  • It ensures that the purpose of the special enactment is not defeated.
  • It makes a statute effective and operative.
  • If there is any anomaly in law, this maxim helps remove it by effective interpretation.
  • It gives power to one provision without invalidating the other provision.
  • It ensures that the intention of legislature behind the specific legislation is fulfilled.

 

Submitted by-

Akanksha Yadav

Intern at Law Portal

Mail: akankshayadav2808@gmail.com

College: Vivekananda Institute of Professional Studies, GGSIPU

 

[1] The History of Statutory Interpretation: A Study in Form and Substance, William S. Blatt, University of Miami School of Law 1985

[2]  [1992] 7 O.R. (3d) 1

[3] Maharaja Pratap Singh Bahadur v. Man Mohan Dev AIR 1966 SC 1931

[4] AIR 1979 SC 1098

[5] South India Corpn. (P.) Ltd. v. Secretary Board of Revenue AIR 1964 SC 207, Secy. of State v. Hindustan Co-operative Society AIR 1931 PC 149, Patna Improvement Trust v. Shrimati Lakshmi Devi AIR 1963 SC 1077

[6] Bengal Immunity Co. v. State of Bihar AIR 1955 SC 661

[7] AIR 1977 SC 36

[8] [1974] 97 ITR 302 (P&H)

[9] [1977] 110 ITR 170 (P&H)

[10] (2006) 202 ELT 561 SC

[11] AIR 2006 SC 389

[12] Writ Appeal No.2759 of 2018

Author: Akanksha Yadav,
Vivekananda Institute of Professional Studies, GGSIPU

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