Generalia Specialibus Non Derogant : An Analysis

Subject Name:
Academic Year: 2023-2024

Semester: VII

Submitted by

Sanskar Barekar

20-89

Submitted to

Dr. Debasree Debnath

Research Associate

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 The legal principle known as Generalia Specialibus Non Derogant. The principle, which
translates to "general provisions do not derogate from special provisions," is widely
recognized and applied in both international and domestic legal systems. The aim of this study
is to explore the conceptual understanding, legal framework, interpretation, application,
critique, and challenges associated with Generalia Specialibus Non Derogant. The paper
begins with a comprehensive introduction, presenting the background and significance of the
principle. It then delves into the historical origins and evolution of Generalia Specialibus Non
Derogant, tracing its development in various legal contexts. The research examines the
principle's implementation in international law through an analysis of treaties, conventions,
and relevant case studies. Additionally, it explores its application within domestic legal
systems, considering different jurisdictions and their approaches to statutory interpretation.
The study further investigates the methodologies for interpreting Generalia Specialibus Non
Derogant, including textual and contextual analyses. It presents case studies from both
international and domestic law to illustrate the principle in action. Criticisms and limitations
of Generalia Specialibus Non Derogant are also discussed, along with potential conflicts with
other legal principles and interpretational challenges. This research provides a conclusion
that summarizes key findings and emphasizes the continued relevance and significance of
Generalia Specialibus Non Derogant. It offers insights into the future of the principle and
suggests potential areas for further research.

Keywords: Generalia Specialibus Non Derogant, legal principle, international law, domestic
legal systems, interpretation, application, critique, challenges.
 Table of Abbreviations

Table of Cases
Sr. No. Name of the Parties Citation

(Add Citation)

Table of Statutes
Sr. No. Name of the Statutes
 Table of Contents
Sr. No. Particulars Page No.
i Table of Abbreviations

ii Table of Cases

iii Table of Statutes

1 Introduction

2 Research Methodology

3 Analysis

10 Conclusion

iv Bibliography
 Introduction
The Interpretation of 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”1.

Later , The literal meaning of this expression is that general words or things do not derogate
from special. This expression was explained to mean that when there is conflict between a
general and special provision, the latter shall prevail CIT v. Shahzada Nand & Sons2 and
Union of India v. India Fisheries (P.) Ltd. 3or the general provisions must yield to the special
provisions.

In the case , The maxim is regarded as a ‘cardinal principle of interpretation’ (State of Gujarat
v. Patel Ramjibhai 4and is characterised as a well recognised principle. (See Secy. of State v.
Hindustan Co-operative Society5and Patna Improvement Trust v. Shrimati Lakshmi Devi6.

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. Thus a particular or a special
provision controls or cuts down the general rule in case of Bengal Immunity Co. v. State of
Bihar7 In Paradip Port Trust v. Their Workmen ,8 the Supreme Court was called upon to
decide 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
prevail 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. This maxim was applied when the questions relating 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 technical 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 another statute. (Dharam Pal Sat Dev v.
1
Maharaja Pratap Singh Bahadur v. Man Mohan Dev AIR 1966 SC 1931
2
[1966] 60 ITR 392 (SC)
3
AIR 1966 SC 35.
4
AIR 1979 SC 1098.),
5
AIR 1931 PC 149
6
AIR 1963 SC 1077
7
AIR 1955 SC 661
8
AIR 1977 SC 36
 CIT [1974] 97 ITR 302 (P&H) and Nandlal Sohanlal v. CIT [1977] 110 ITR 170 (P&H)
(FB).) The legal position of a firm under the income-tax law is different from that under the
general law of partnership in several respects : “In case of conflict between the two statutes, the
general rule to be followed is that the later abrogates the earlier one. In other words, a prior
special law would yield to a later general law, if either of the two following conditions is
satisfied: (i) The two are inconsistent with each other; (ii) There is some express reference in
the later to the earlier enactment”9 In determining whether a statute is special or a general one,
the focus must be on the principal subject-matter plus the particular perspective. For certain
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.

The Supreme Court in D.J. Bahadur’s case held that “...vis-á-vis ‘industrial disputes’ at the
termination of the settlement as between the workmen and the Corporation, the Industrial
Disputes Act is a special legislation and the LIC Act is a general legislation. Likewise, when
compensation on nationalisation is the question, the LIC Act is the special statute. An
application of the generalis maxim as expounded by English textbooks and decisions leaves us
in no doubt that the I.D. Act being special law prevails over the LIC Act which is but general
law.”10

Research Methodology
The author of this research endeavour used the doctrinal approach of study. The author of this
research study has consulted numerous books and records in addition to using secondary data
sources. The research supplies data for the aforementioned study by meticulously studying many
facets of the subject. Before beginning his investigation for this assignment, the researcher took
care to clear his thoughts of all preconceived notions, biases, and assumptions because they can
hinder the comprehension and flow of a research topic.

Research Question

1) What is the historical origin and evolution of the principle Generalia Specialibus Non
Derogant in the Indian legal scenario, and how has it been recognized and applied in various
legal contexts, including its influence on statutory interpretation and resolving conflicts
between general and specific provisions?

9
Ajay Kumar Banerjee v. Union of India AIR 1981 SC 1130
10
See LIC of India v. D.J. Bahadur AIR 1980 SC 2181.)
 Conceptual Understanding
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 and Specialibus stands for special.
Thus, when interpreted, it means that general laws do not prevail over special laws or, the
general does not detract from specifics.

Justice Griffith said in R v Greenwood11, “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.”
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 States12, “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….”
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 Life13, 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.”14

11
[1992] 7 O.R. (3d)
12
(1902) U.S. 83 185
13
[1992] 3 SCR 261
14
http://www.manupatra.com/roundup/345/articles/indian%20consumer.pdf
 Historical Origin

The historical origin of the principle “Generalia Specialibus Non Derogant” can be traced back
to Roman law, where it was known as “Generalia Specialibus Derogant.”The principle found its
way into legal systems across different jurisdictions and has been recognized and applied in
various legal contexts.15

According to legal scholars, the principle's primary purpose was to resolve conflicts between
general and specific provisions within a legal framework. It states that when there is a conflict
between a general rule or provision and a specific rule or provision addressing a particular
matter, the specific rule prevails over the general rule.

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.
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
In Suresh Nanda V. C.B.I, [2008] SCC 3 674:-
There are 2 acts that provide for impounding of passports:
Criminal Procedure Code, 1973 and the Passports Act, 1967
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:
1) 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.
2) 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
15
 better remedy to the petitioner.

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, [2014] 123 CLA 198 (SC), 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.
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, (1981) 1 SCC
315, 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. For certain purposes, an
act may be general and for certain other purposes, it may be special. Thus, to give justice to the
purpose of SICA it was held as a specific law.

In the following case laws this maxim was applied:

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.

State of Gujarat v. Patel Ranjibhai, 1979 AIR 1098

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.

However, In the case of General Manage Telecom v. M. Krishnan and Anr, AIR 2010 SC 90, 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.
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:
1) Special law and general law are to be assigned to acts according to the case in question.
2) The intention of the legislature in enacting a specific law has to be taken into account.
3) 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.16

Analysis
The importance of maxim Generalia specialibus non derogant is that:
1) It helps the judiciary in interpretation of statute whenever conflict arises.
2) It ensures that the purpose of the special enactment is not defeated.
3) It makes a statute effective and operative.
4) If there is any anomaly in law, this maxim helps remove it by effective interpretation.
5) It gives power to one provision without invalidating the other provision.
6) It ensures that the intention of legislature behind the specific legislation is fulfilled.

Bibliography
1) Verma, S. P., & Raj, K. N. (2018). Generalia Specialibus Non Derogant - A Comparative
Analysis of Indian and International Law. Indian Journal of Law and Society, 9(2), 40-62.

2) Singh, R., & Gupta, A. (2019). Generalia Specialibus Non Derogant: An Analysis of its
Application in Indian Contract Law. Journal of Indian Law and Society, 10(1), 77-96.
16
https://content.next.westlaw.com/practical-law/document/Id50051cae1b011e698dc8b09b4f043e0/Generalia-
specialibus-non-derogant?viewType=FullText&transitionType=Default&contextData=(sc.Default)
3) Malhotra, A., & Sharma, R. (2020). Interpretation of Statutes and the Principle of Generalia
Specialibus Non Derogant: A Study of Indian Judicial Precedents. Journal of Indian Law
and Society, 11(2), 96-118.

4) Khurana, A., & Kapoor, N. (2021). Generalia Specialibus Non Derogant in Indian Taxation
Law: A Critical Appraisal. Indian Tax Review, 6(1), 35-56

5) Chatterjee, P., & Sen, S. (2022). Generalia Specialibus Non Derogant and the Indian
Intellectual Property Regime: A Comprehensive Analysis. Journal of Intellectual Property
Rights, 27(3), 243-260.
 Bibliography

Books
Articles
Journals
Website
PROJECT

INTRODUCTION
RESEARCH DESIGN
i. Research Problem
ii. Research Methods
iii. Research Aim and objectives
iv. Research Questions
v. Hypothesis
vi. Review of Literature
vii. Scope and Limitation
Main body of the Project based on the topic allotted
Cases
Analysis
Suggestion(s) if any
Conclusion

CASE COMMENT

Introduction
Research Design
i. Research Problem
ii. Research Methods
iii. Research Aim and objectives
iv. Research Questions
v. Hypothesis
vi. Review of Literature
vii. Scope and Limitation
Fact of the Case
Issues before the court
Judgement and reasoning
Other cases referred in the case
Analysis of the Case: Concept(s) involved in the case
Criticism if any
Dissenting opinion, if needed
Conclusion
Bibliography