- Apprentice Lawyer
That a specific/special law will prevail over a more general law is a principle that has a sound basis in jurisprudence and common sense, but it is the authors’ case that this principle is often erroneously invoked to exclude the applicability of a general law, in cases where it should clearly apply.
Take, for instance, the Information Technology Act, 2000 (IT Act). The IT Act regulates online behavior; it renders culpable certain acts such as hacking, obscenity, defamation over the internet, tampering with software source code, data theft, etc. Though essentially perpetrated over/using modes of information technology (computers, the internet, etc.), these acts have real-world consequences and, more often than not, they may also amount to offences under the Indian Penal Code, 1860 (IPC).
For instance, an employee of a company, let's call him Employee 'X', entrusted with extremely confidential and commercially valuable company data, unauthorizedly transfers the same to himself, or induces another, by deception, to transfer it for him - under the guise of it being his personal data.
Should the employee be prosecuted solely under the IT Act (computer related offences), or should the offences of theft (This is, of course, to be read with the caveat that, arguably, theft under the IPC may be attracted only when the subject matter of the theft is ‘corporeal property’ as indicated by the definition of ‘moveable property’ under section 22 of the IPC), criminal breach of trust and cheating under the IPC also apply?
When faced with situations such as this, we lawyers love to say fancy things like: lex specialis derogat legi generali - special law repeals general laws, or generalia specialibus non derogant - the general does not detract from the specific. However, this neat sounding principle may not be applicable to situations such as the one presented above, where there might not be any conflict between the two laws and more than one law may apply without conflict.
What is often missed is that this canon of interpretation kicks-in only when there is a direct conflict – incapable of reconciliation – between the provisions of the special law and the general law, and not merely when one act/omission is covered by more than one law.
For instance, if in the above example, the special law - IT Act specifically decriminalized a particular act which would have otherwise been culpable by the application of the IPC, then in such a case, the special law should eclipse the more general law and the act in question should be taken to have been successfully decriminalized. This may also be effectuated by a legal device called a ‘non-obstante clause’ which expressly gives overriding effect to one provision/act over the other, in case of a conflict.
However, the general/specific canon and the non-obstante clauses may not get engaged in the example under discussion, and in a situation where an act is simply a crime under two or more laws and there is nothing in either of these laws that indicates an express/implied repeal of the earlier law.
“Double Jeopardy!” is another darling of criminal lawyers (lawyers practicing criminal law, just so that we are clear). In the situation above, a lawyer may also argue that prosecution of an accused under both the IT Act and IPC will amount to double jeopardy; but is that the case?
The answer, as the authors argue here and as the bare language of Article 20(2) of the Constitution of India and Section 26 of the General Clauses Act, 1897 would show, is a clear ‘No’. Double jeopardy kicks-in only when a person is sought to be punished twice for the same offence; ‘punished’ and the ‘same offence’ being key words here. It has to be borne in mind that the same act/omission can attract more than one provision, and there is no immunity from being prosecuted and punished for all those offences even though the underlying act was the same.
Only in a case where the offence sought to be punished is same but is covered under two or more statutes, i.e. the ingredients and essentials of charging sections under both the laws are identical, does this immunity from double jeopardy kick-in, and that too only to protect from being punished twice, not from being tried and prosecuted under both those statutes.
Different Offences, Different Legislative Intent
Given the multiplicity of our laws, more than one statute can surely apply in a given factual context, without conflict with each other.
Coming back to the example that we have been dealing with, it is manifest that the intent of legislature cannot be that the same act cannot also amount to criminal misappropriation, or criminal breach of trust, or cheating etc. simply because the employee used electronic means/transactions/devices. Moreover, the IT Act does not envision such offences, and thus the IPC is not inconsistent with the IT Act in respect of such offences. In fact, both legislations operate in different fields in respect of such offences.
In the test case discussed above, it is clear that the offences committed by Employee X are much more aggravated than mere dishonest and/or fraudulent unauthorized access/downloading/copying/extraction sought to be punished under the IT Act. It is, instead, a case of a most egregious breach of trust by an official entrusted with that sensitive confidential information - a senior official who had acquired a position of a fiduciary in respect of his employer, and in whom the employer company had placed its faith and trust. This falls within the mischief sought to be covered by the offences under IPC.
Giving a general supremacy to the IT Act over IPC and excluding the latter’s applicability the moment an electronic expedient is used for an offence is capable of dangerous consequences.
Picture this: a murder committed by making the brakes on a driverless car dysfunctional by hacking into the car’s system; or a murder committed by hacking into a hospital’s Internet of Things and causing the ventilators to fail. In such a case, would one prosecute and punish the accused for having committed murder under the IPC (where he faces a sentence up to death), or would he be let off with a mere rap on the knuckles by the invocation of only the IT Act offences, which are bailable in nature and envisage punishment only up to three years?
Recent Missteps - The judgment in Gagan Harsh Sharma
The possibility of co-existence of charges under different laws for the same act/transaction is well established.
However, the law, off-late, as the article would show, has meandered. These doctrines of general/specific canon and double jeopardy have come to be fetishized a great deal in the recent past, where they have been invoked to rule-out the application of one statute by the other, even in the absence of any conflict between the two and despite the clear difference in terms of legislative intents and ingredients of the offences in question.
An example at hand is the case of Gagan Harsh Sharma v. State, decided by the Bombay High Court. To give a brief factual background: the said case arose out of an FIR filed by a company against the accused under Sections 43, 65 and 66 of the IT Act and under Sections 408 and 420 of the IPC complaining theft of computer source code related to the company’s healthcare software. It was alleged that certain ex-employees of the complainant, along with third parties, had gained access to the computer system of complainant and stolen certain source code to create their own software. Even while the investigation was on-going, the invocation of both the IPC and IT Act was challenged.
The Bombay High Court upheld the challenge, relying upon (albeit erroneously) the Apex Court’s judgment in Sharat Babu Digumarti vs Govt. of NCT of Delhi to hold that invocation of Sections 408, 420 and 379 of IPC could not be sustained in the facts and circumstances of the case when offences committed were within the purview of Section 43 r/w 66 of the IT Act. The Court held that the criminal acts in question were squarely covered by the IT Act and, therefore, by virtue of application of the general/specific canon and the principle of double jeopardy, IPC can’t apply, and quashed the FIR insofar as it concerned the IPC offences.
The judgment seems to have wrongly read Sharat Babu as giving a general supremacy to IT Act over the IPC and the latter being completely eclipsed – the moment the case has an IT Act element. Going even further, it notes in para 36 that, that the ingredients of Section 420, 408, 379 of the IPC are covered by Section 66 of the Information Technology Act and “prosecuting the petitioners under both the IPC and IT Act would be brazen violation of protection against double jeopardy”. This is the most fatal flaw of Gagan Harsh Sharma; it seems to have simply read the plain provisions of the statute wrongly.
We argue that Gagan Harsh Sharma is demonstrably wrong, and that it requires reconsideration.
A Quick Survey of the Case Law holding the filed
Our view on the correct application of principles of general/specific canon and double jeopardy has a long judicial history of precedent to commend itself with.
In State (NCT) of Delhi v. Sanjay, the Apex Court was called upon to decide the question as to whether the offence of illegal mining of sand from river-beds prescribed under Mines and Minerals (Development and Regulations) Act of 1957 would oust the application of Section 379, IPC. The Apex Court observed that although mining of sand from riverbed without licenses/permit is prohibited under the MMDR Act, however, it would also constitute an offence under the provisions of IPC as natural resources belongs to the public and State being its trustee, the police is empowered and duty bound to lodge an FIR under IPC and to investigate and file chargesheet, irrespective of the procedure under the MMDR Act.
Similarly, in State of Uttar Pradesh v. Aman Mittal, the Apex Court was considering the special legislation Legal Metrology Act, 2009 (LMA) vis-à-vis the IPC. It was held that the scheme of LMA is for the offences for use of weights and measures which are non-standard and for tampering with or altering any standards, secondary standards or working standards of any weight or measure, and that LMA did not foresee any offence relating to cheating as defined in Section 415 of IPC or the offences of forgery under Sections 467, 468 and 471 of the IPC.
Further, LMA did not provide for the offence of criminal conspiracy, or vicarious liability as created by Section 34 of the IPC. Since such offences were not provided-for/punishable under the provisions of LMA, therefore, the prosecution for such offences under IPC could be maintained.
Recently, while dealing with offences involving motor vehicles in light of existence of a special act i.e. Motor Vehicles Act, 1988 (“MV Act”) as well as a general act i.e. IPC, the Apex Court in State of Arunachal Pradesh vs. Ramachandra Rabidas @ Ratan Rabidas and Anr, held that road traffic offences can be prosecuted under both statutes.
The Apex Court held that the two statutes operate in entirely different spheres, the offences under both being separate and distinct, with distinct ingredients and distinct penal consequences. It was further held that since none of MV Act’s provisions separately deal with offences causing death or grievous hurt or hurt by a motor vehicle in case of motor vehicle accidents, the High Court’s interpretation would have the consequence of letting the offender get away with a fine by pleading guilty without having to face any prosecution for the offence committed.
We live in a world of multiplicity of laws. If the legislature desires a particular law repealed; for instance, in this case, the IPC provisions in their application to cyber-crime situations, it could have indicated the same by either repealing those offences in their application to cyber-crime situations, or specifically overriding the IPC in certain situations. That having not been done, it may be faulty to hold that merely because the offence involves information technology, IPC stands excluded. Such mechanical application of the general/specific canon or the much-ritualized principle of ‘double jeopardy’ is problematic.
One framework within which counsel may test the application of this canon of interpretation is suggested by the authors as follows:
To identify whether there is indeed a conflict between the special statute and the general statute as they apply to the facts of the case at hand; to then localize where does that conflict lie; to then test whether such conflict is amenable to reconciliation by harmonizing of the involved statutes; and if the conflict still persists, to then finally crystallize clearly how the said conflict needs to be resolved by giving overriding effect to the special statute in light of the general/specific canon.
A commitment to these first principles would help us traverse through the multitude of legislation that we live with, much better.
Bharat Chugh is a Partner at L&L Partners and a former judge, Ishaan Dewan is an Associate at L&L Partners.