Non-obstante clause

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how is non-obstante clause useful in interpretation of statute and its construction?

Non-obstante clause:

A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section. Thus, there is generally a close relation between the non obstante clause and the main section and in case of ambiguity the non obstante clause may throw light on the scope and ambit of the rest of the section. If, however, the enacting part is clear and unambiguous, its scope cannot be whittled down by the use of the non obstante clause.

This phrase i.e. ‘notwithstanding anything in’ is in contradiction to the phrase ‘subject to’.

Judgments:

Aswini Kumar v. Arabinda Bose 1953 SCR 1 : AIR 1952 SC 369 : 1952 SCJ 568

The Supreme Court observed that: “the non obstante clause can reasonably be read as overriding ‘anything contained’ in any relevant existing law which is inconsistent with the new enactment, although the draftsman had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statue must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such a clause, a later law abrogates earlier laws clearly inconsistent with it. While it may be true that the non obstante clause need not necessarily be co-extensive with the operative part, there can be no doubt that ordinarily there should be a close approximation between the two.”

 It was further observed that: “It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.”

Kanwar Raj v. Pramod [1955] 2 SCR 977 : AIR 1956 SC 105 : 1956 SCJ 134

It was held: The operative portion of the section which confers power on the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised ‘notwithstanding anything contained in any other law for the time being in force.’ This provision is obviously intended to repel statutes conferring rights or leases, and cannot prevail as against them and has been inserted ‘ex abundant cautela’. It cannot be construed as cutting down the plain meaning of the operative portion of the section.

The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it.

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