GENERILIA SPECILIBUS

 

GENERILIA SPECILIBUS non derogant

Generalia specialibus non derogant is the principle that a general statutory provision does not repeal a specific one. The rule may apply either to two separate statutes , or to provisions within the same Act.

It was applied by the Supreme Court in the case of Hutch v the Governor of Wheatfield Prison . That case posed the question whether a young person between the ages of fifteen and seventeen years who had been convicted of an indictable offence tried summarily, could be sentenced for the period of detention applicable to an adult (under the Criminal Justice Act, 1951 ), or whether the sentence was limited to three months imprisonment under the terms of the Summary Jurisdiction Over Children (Ireland) Act, 1884 . The Court held that since the 1951 Act was a general Act, and the 1884 Act had a special application, the maxim generalia specialibus non derogant applied. Therefore, the 1884 Act was not impliedly amended or repealed by the 1951 Act, and the possible sentence was limited to three months imprisonment.

National Authority for Occupational Safety and Health v Fingal County Council In that case , there was an apparent conflict between the general terms of subsection 3 of section 51 of the Safety Health and Welfare at Work Act, 1989 , which stipulated that certain proceedings must be instituted within one year,

and subsection 4 of the same section, which stated that proceedings in more limited circumstances should be brought within six months. Murphy J, referring to the Hutch case, found that the more restrictive period in subsection 4 applied

 

The requisite conditions for applying this maxim are:

 (1) Both the general enactment and particular enactment must be simultaneously operative, the general enactment covering the larger field and the particular enactment covering a limited field out of a larger field covered by the general enactment

. (2) There must be nothing contained in the general provisions indicating the legislative intent to overrule or set aside the particular provision

 

Justice Locke wrote, in Greenshields vs. The Queen: "In the case of conflict between an earlier and a later statute, a repeal by implication is never to be favoured and is only effected 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so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together… Special Acts are not repealed by general Acts unless there be some express reference to the previous legislation or a necessary inconsistency in the two Acts standing together which prevents the maxim generalia specialibus non derogant being applied."

 In Sullivan and Dredger: "Implied exception (generalia specialibus non derogant). When two provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision. The specific prevails over the general; it does not matter which was enacted first. This strategy for the resolution of conflict is usually referred to by the Latin name generalia specialibus non derogant. The English term “implied exception” is adopted for, in effect, the specific provision implicitly carves out an exception to the general one."

In R v Greenwood, 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”

 

Barker v. Edger, saying that, When the legislature has given its attention to a separate subject, and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with special provision unless it manifests that intention very clearly.

 Rohtas v. State of Haryana: Section 5 of Code of Criminal Procedure, 1973 recognizes the continuance of special form of procedure under any law for the time being in force. In this case it was held that Haryana Children’s Act, 1974 (the special provision) which came into force on 1st March, 1974 was not repealed by the code (i.e. the general provision) which came into force on 1st April, 1974.

 Subramanian Swamy v. Manmohan Singh: Section 19(1) of prevention of corruption act, 1988 which is special provision that particularly deals with sanction from authorities to prosecute public servants. And section 190 of Code of Criminal Procedure, 1973 the general provision which was enacted before the special provision deals with the cognizance of offence. The court in this judgment relied on the special statute to give its judgment.(CJM EMPOWER MAJ TO COGNIZ....MAT TAKE COG ON COMP/POLICE REPORT /KNOWLWDGE)

GEN/SPECIAL------PREVAIL---EXCEPTION

SPECIALV SPECIAL ----LATER ....REPEAL

This maxim acts as an exception to the maxim Leges posteriors priores contraries abrogent (Later laws abrogate earlier contrary law is subject to the exception embodied in this maxim) But however if both the laws enacted are special statutes then this maxim will be applied.

 

 

 

 

 State of Gujarat & Anr. v. Patel Ranjibhai Dhanbhai & Ors: The respondent an unregistered dealer had not pay tax. Section 33 (6) of Bombay Sales Tax Act is the special provision that deals with unregistered dealers who evades tax. Section 35 of the act deals generally with the people who evade tax. Thus, the court considered both the provisions and said that in case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35”. Limits: when there is a conflict between basic natural rights, even though not specifically declared by the constitution, and the provisions of any general or special law, it is the basic right of natural justice that would prevail, and such provisions being in conflict with it must consequently give way.

 

 

Subal Paul v. Malina Paul: In this case it was held that the appellate jurisdiction of the superior court would not be excluded simply because the lower court exercises its special jurisdiction under the 1925 act