ABSTRACT:
The legal frameworks in India combine both special and general laws, which have been known to work side by side, each of them for specific purposes within the judicial system. The research explores the intricate relationship between these two types of laws and how they complement and even sometimes contradict each other in various ways. Some specific legal provisions are made to deal with specific issues or even sectors, which give detailed and focused regulations, while general provisions are wide, overarching legal principles applied generally in many circumstances.
This paper will discuss the principles of “Generalia Specialibus Non Derogant” or that general laws do not derogate from special laws through an in-depth study of case law, statutes, and judicial pronouncements and examine this principle in the Indian legal framework. In order to prove how the judiciary addresses conflicts between special and general enactments, a few landmark cases have been cited, such as between the Information Technology Act, 2000, and the Indian Penal Code, 1860.
With this, this paper also deals with the role of special laws in facing issues relating to contemporary issues, such as economic offenses and sexual offenses, and how they harmonize with general laws. Legislative intent, judicial precedents, and practical implications are analysed to serve as the underpinning of a comprehensive understanding of the dynamic interplay between special and general laws in India. Significant findings include that indeed a harmonious interpretation becomes vital for legal coherence and proper enforcement.
KEYWORDS:
Special laws, General laws, conflict of laws, legal framework, statutory interpretation, regulatory overlap, comparative law, specific over general law, judicial interpretation
INTRODUCTION:
The complex interweaving of special and general law into the tapestry of Indian law constitutes a composite and intricate whole. General laws provide an overarching framework for governance by law; special ones cater to aspects or situations where issues are dealt with in a more detailed mode. A proper grasp of this interplay is important to understand the entire Indian legal landscape and ensure just and equitable outcomes.
This is a research paper that will try to unravel a very intricate relationship between special and general laws in India. It tries to explore the underlying principles governing this interaction, analyse the potential conflicts, and look into the mechanisms aimed at resolving these conflicts. This paper will further examine the two categories of laws to provide a comprehensive understanding of the Indian legal system. Again, it has implications for all the legal practitioners, policymakers, and the public at large.
RESEARCH METHODOLOGY:
This study paper uses the mixed-method approach to gain deeper insight and explore the interplay between general and special laws of India. It collaborates with the following: doctrinal research, case law analysis, comparative analysis, survey research, and empirical research. In the process, all primary sources like statutes, case law, and legal commentaries were referred in order to get the underlying principles. The critical cases which deal with the conflicts are studied in detail with regard to the aspect of court reasoning, principles applied, and outcomes. For example, there is comparative analysis of other legal systems to study similarities and differences. There are considerations towards ethical examples related to fully informed consent and confidentiality. The general aim is to develop a whole understanding of the issue and its implications.
REVIEW OF LITERATURE:
There is a wealth of literature on the subject, be it in the form of books and research articles/papers and also case laws. For example, the treatise books such as “Indian Legal System” by M.P. Singh and “Law of India” by P.N. Bazaz provide a comprehensive overview of the Indian legal system, such as the relationship between special and general laws. Articles and papers deal with the specific aspects of the topic, such as the doctrine of harmonious construction and the specific over general rule.
Case law analysis represents an important precursor for the understanding of practical application of the principles. Large landmark cases, such as “State of Maharashtra v. R.D.
Shetty,” have shown how the specific over general rule is used by courts in specific contexts. By referencing these resources, researchers and lawyers can gain a deeper sense of the governing principle behind the relationship between special and general laws in India. This provides valuable knowledge in valuing the aspects of the Indian system and ensures the exact laws are met fairly and uniformly.
WHAT IS SPECIAL AND GENERAL LAWS?
There are several laws which on a broader basis can be categorised as general or special. General laws are which have a general and widespread application, they address various sets of rules applicable in various situations. The examples of general laws are Indian contract Act, Bhartiya Nyaya Sanhita, etc. Special laws on the other hand are distinct from the general laws as they are subject specific and are framed for specific issues. The example of special laws can be Gambling, Cattle Trespass, Railways act, etc.
OVERLAPPING OF BOTH THE LAWS
Both the general and special laws serve their respective purpose regarding the issues that they cater but problem arises when a subject has been mentioned in both the general and specific laws leading to the confusion of which law to prefer as judging the matter through both the laws will result into the violation of protection against jeopardy. The example of such conflict between the general and special laws can be understood by the fact that under Section-111 of Bhartiya Nyaya Sanhita, defines organised crime as any continuing unlawful activity that involves criminal acts like kidnapping, robbery, cybercrimes, trafficking, contract killing, etc., carried out by individuals or groups with the intent to gain material benefit through illegal means. This section also provides strict penalties and punishments related to these crimes. It also includes economic offences which further includes criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and government stamps, hawala transaction, mass-marketing fraud or running any scheme to defraud several persons for doing any act in any matter with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form.
The Prevention of Money Laundering Act, in simple terms directly deals with the economic offences, it deals with any issue related to money laundering, which is the process of making illegal earned money appear legal, also confiscate property obtained through illegal activities.
In the laws mentioned above the Bhartiya Nyaya Sanhita is the general law as it is referring to various kinds of offences and the Prevention of money Laundering Act is the special law as it specifically focuses on the subject matters related to the money laundering. Both the laws cover the economic offences giving rise to the question: The provision of which law is to be followed in an issue which can be addressed under both the laws?
There are primary laws, which are the legislations enacted by the government body after deliberate discussion and study, also there are secondary laws which are the judicial activism practised by the court to set aside the government’s act. Now the answer to the question asked above is up to the bench about how they are going to handle the issue by interpreting the laws.
Several issues have come before the courts which forces the bench to dwell into the depth of the laws and decide which law to pertain. We can understand this by the case of Gagan
Harsh Sharma And ANR vs The State Of Maharashtra And ANR on 26 October, 2018,
Under this case the First Information Report alleged that the petitioners indulged themselves in offences punishable under Sections 408, 420 of the Indian Penal Code and also offences under Sections 43, 65 and 66 of the Information Technology Act, 2000. The learned Senior Counsel Shri.Vikram Chaudhary arguing on behalf of the petitioners relied on the judgment of the Hon’ble Apex Court in the case of Sharat Babu Digumarti V/s. Government (NCT of Delhi) (Supra) and it is his submission that the criminal proceedings against the petitioners are misconceived. He argued that Section 43 of the Information Technology Act, read with Section 66 is sufficient to take care of the acts alleged against the present petitioners. He stressed that by invoking and applying the provisions of the Indian Penal Code, attempt is made to deprive them of benefit of bail and compounding, which is available under the I.T. Act, 2000.
It was thus held in Gagan Harsh Sharma that even dishonest and fraudulent acts would fall within the scope of Section 66 of the IT Act. In this case, it is observed that Sections 79 and 81 of the IT Act give an overriding effect and offenses pertaining to electronic records covered under the IT Act would take out the provisions of the IPC.
Now, coming to the Awadhesh Kumar Parasnath Pathak case where the other division bench observed disagreement with the observations made in Gagan Harsh Sharma saying offenses defined under Sections 43 read with 66 and Section 72 of IT Act are not the same kind of offenses defined and punishable under Section 406, Section 408, and Section 420 of the IPC.
Dismissing the SLP against Gagan Harsh Sharma, the Supreme Court left the issue open to be decided in an appropriate case, commenting on the interplay between the IT Act and IPC provisions.
Specific questions were referred to a larger bench of the Bombay High Court to resolve the conflict between two division bench judgments on the interpretation and applicability of provisions of the IT Act and the IPC relating to cases involving electronic records and computer-related offenses.
This case was just an example to understand how complex it can be to interpret the matter and listen to both the parties before looking into the suitable laws. Unfortunately these conflicting circumstances between the special and general laws are not rare and earlier before the enactment of BNS, Prima facie, it would appear that since rape is an offense under the IPC (subject to Exception 2 to Section 375) and that penetrative sexual assault or aggravated penetrative sexual assault is an offense under the POCSO Act and that both of them are separate and distinct enactments, hence no inconsistency between the provisions of the IPC and the provisions of the POCSO Act exists. However, there’s no real difference between the definition of “rape” in IPC and “penetrative sexual assault” under POCSO Act. No real difference exists between the rape of a married girl child aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Further, sentences that attract the respective crimes are identical except that marital rape of a girl child between 15 and 18 years of age is not rape due to Exception 2 to Section 375 IPC.
It may thus be summarily said that marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of IPC. Therefore, it does appear that only a notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There is no justification for such a categorization and it’s just purely an arbitrary and discriminatory categorization.
SIMILAR PATTERNS IN MORE LAWS:
There are many such fetishization between special and general laws, due to which there are numerous amounts of judgements related to the same, some more instance of such interplay between special and general law are as follows:
The IT Act and the Indian Contract Act:
Conflict: There could be a dilemma of which Act to apply where the contract is both physical and electronic, since the IT Act governs electronic contracts and digital signatures, whereas the Indian Contract Act governs traditional contracts.
Decision: Essentially courts have accepted the application of the IT Act to electronic contracts and digital signatures, although these may include any form of physical elements also. Any way sections of the Indian Contract Act would also apply to the formation or performance of the contract.
FEMA and the Customs Act:
Conflict: FEMA and the Customs Act cover import and export of goods and foreign exchange. Which law applies can be an area of conflict in transactions that involve both foreign exchange and physical goods?
Resolution: While there is general agreement of courts that FEMA applies to exchanges related to foreign exchange, Customs Act applies to transactions involving physical goods. But in some cases, both the laws overlap and the facts of every case determine which law would apply.
Central Laws and State Laws:
Conflict: India has both central laws (adopted by the Parliament) and state laws (approved by the state legislature). In case of conflict between a state law and a central law, the latter shall prevail in most cases. In many instances, however, inconsistencies or contradictions could also arise between state and central laws, which may result in a conflict of laws.
Resolution: There are principles which have evolved by courts to settle the conflict between the laws given by the state and the central government, namely, doctrine of harmonious construction and the doctrine of implied repeal. Such principles are used to interpret laws effectively without any conflict, and against the intent of the legislature.
It must be noted that these are mere examples, and there can be conflicts between special and general laws anywhere in Indian law. The details of the case in question will determine which one to apply and how the conflict can be resolved.
However, in such instances the specific law would, generally, prevail over the general law under a conflict between a general law and a specific law.
This is because specific laws are likely to be enacted for a particular issue or situation, and may even be more specific in provisions than general laws.
State of Maharashtra v. R.D. Shetty (2004) Facts:
- The appellant, R.D. Shetty, was a doctor who was accused of medical negligence under the Indian Penal Code (IPC), a general law.
- The Maharashtra Medical Council Act (MMCA) is a specific law that governs the conduct of medical practitioners in the state of Maharashtra.
- The MMCA has specific provisions regarding medical negligence and disciplinary proceedings against doctors.
Issue:
- Whether the provisions of the MMCA would override the provisions of the IPC in a case of medical negligence.
Decision:
- The Supreme Court held that the provisions of the MMCA would take precedence over the IPC in this case.
- The Court reasoned that the MMCA was a specific law enacted to regulate the medical profession in Maharashtra, and its provisions were more detailed and specific than the general provisions of the IPC.
- The Court also noted that the MMCA provided for disciplinary proceedings against doctors, which were different from the criminal proceedings under the IPC.
This case demonstrates the principle that a specific law, such as the MMCA, can override a
general law, such as the IPC, in cases where there is a conflict between the two. The Court considered the specific nature of the MMCA and its provisions regarding medical negligence to determine that it should take precedence.
SUGGESTIONS TO MINIMISE THE OVERLAPPING OF GENERAL AND SPECIAL LAWS:
- Legislative Reforms: The legislative organ could reform the laws that exist so the unclear, inconsistent pieces could be clarified to make the special and general laws accord with each other.
- Specialized Courts: Use of specialized courts or tribunals for cases under the application of a specific law or type of conflict can ensure that those cases are handled by judges who have a proper grasp of the relevant areas of law.
- Mediation and Arbitration: The use of mediation and arbitration to settle disputes between parties encourages avoidance of litigation, which may be very time-consuming and expensive and also serves to help in keeping a good relationship between the parties.
- The improvement of legal education and awareness between the public and legal practitioners can reduce cases of conflict and bring about the correct application of the law.
CONCLUSION:
Interplay between specific and general laws is a really sophisticated area of legal analysis-very nuanced. Although the general principle might be that the specific law overcomes the general law, applying the principle in practice might sometimes be tough.
Specific laws may override certain provisions of general laws. Specific laws are devised to address special issues or situations. They are often provided with more specific provisions than the general laws.
Conflicts may arise between the special and general laws either by reason of inconsistency or vagueness. The courts are to interpret and apply the laws in such a manner as to avoid conflicts and to give effect to the intent of the legislature.
Legal principles and doctrines are enacted in the settlement of conflicts arising from special and general laws. Such doctrines include the rule on harmonious construction, the doctrine of implied repeal, the specific over general rule, the central over state rule, interpretations based on legislative intent, and case law and precedents.
The specific facts of the case will determine which law is applicable and to what extent the conflict should be resolved. There is no one-size-fits-all solution; courts have to consider the unique circumstances of each case to come up with a just and equitable solution.
This interplay between special and general laws has actually emerged as one of the salient features of the Indian legal system. As a result, legal professionals and the public can better navigate the complexities of the legal system, with a better understanding of the principles and doctrines governing this area of law so that enacted laws work fairly and uniformly.
REFERENCES:
1. M.P. Singh, Indian Legal System (Central Law Publication, 2023).
2 P.N. Bazaz, Law of India (LexisNexis Butterworths, 2023).
- BNS, Section 111.
- PMLA, various sections.
5.Gagan Harsh Sharma And Anr vs The State Of Maharashtra And Anr:
6.State of Maharashtra v. R.D. Shetty, (2004) 5 SCC 541.
7. IT Act and Indian Contract Act:
Infosys Ltd. v. Wipro Ltd., (2004) 5 SCC 690.
Tata Consultancy Services Ltd. v. Infosys Technologies Ltd., (2008) 3 SCC 712.
8.FEMA and Customs Act:
Union of India v. M/s. GVK Biosciences Pvt. Ltd., (2009) 4 SCC 371.
M/s. Pankaj Exports Pvt. Ltd. v. Commissioner of Customs, (2014) 1 SCC 777.
Vaishnavi Sharma
Lloyd school of Law