Difference between the terms illegal & unlawful

Terms illegal differs from unlawful

The terms illegal and unlawful have slight difference in meanings, as per Oxford English dictionary. But nowadays both terms are often used interchangeably.

Something that is Illegal is against the law in force such as illegal immigrants, whereas an unlawful act merely contravenes the rules that apply in a particular context such as an unlawful assembly. The term unlawful often implies an act that is done without lawful justification or authority.

That means that something illegal is expressly proscribed by statute, and something unlawful is just not expressly authorized.

The term illicit is a similar word

A third word with a similar meaning is illicit. The term illicit denotes those things that are forbidden or disapproved of by custom or society, as in an illicit relation.

Illicit activities are considered improper or socially forbidden. They may or may not be illegal but they go against social norms and values.

Illicit behaviour may be unethical, but it may also simply be behaviour that a society disapproves of.

It means illicit refers to something ethically or morally wrong but not legally wrong.

Difference between the terms explained

An illegal act is used to describe an act that breaches an express prohibition and usually results in the imposition of a penalty.

An unlawful act may arise in a situation in which there is no express prohibition in law, such as a traffic accident.

Illegal v unlawful agreements

Illegal agreements: Any agreement against the provisions of the law in force in India shall be considered an illegal agreement.

An illegal object or illegal consideration, makes the agreement illegal. Illegal agreements are those agreements that are: (i) void, and (ii) punishable by criminal law of the country, or by any special legislation/regulation.

The Section 2(g) of the Contract Act states that “An agreement not enforceable by law is said to be void”. Such agreements are not enforced by a court of law. (Nair Service Society v KC Alexander)

Unlawful agreements: Section 23 of the Contract Act lays down a plethora of circumstances wherein the object or consideration of an agreement is unlawful. An agreement hit by Section 23 is void ab initio and thereby in no circumstances enforceable.

Kerala High Court on the terms illegal v unlawful

The Kerala High Court in Zeenath v Kadeeja (2006 (4) KLT 905] states that the expression “illegal” and “unlawful” are synonymous and convey the same idea in language – ordinary and legal.

But when a statute employs an expression with intention of conveying a special meaning and with the said purpose defines the expression in such statute as the expression “illegal” is defined in Section 43 of the Indian Penal Code( IPC), such meaning is to be ascertained for that expression specially and specifically for such a statute and for the purpose of such statute.

Therefore, the HC adds that it is not possible to accept the argument that the definition of the expression “illegal” in Section 43 of the IPC must straightaway be mechanically imported into Section 98 of the Criminal Procedure Code, 1973 (CrPC) when we consider the ambit and play of the expression “unlawful” in Section 98 of the CrPC.

Merely because two expressions mean the same ordinarily in language and law, both cannot be held to have the same meaning when one of them is specially and specifically defined and explained in one statute.

Further reading

  1. Zeenath v Kadeeja (2006 (4) KLT 905]