CHANAKYA NATIONAL LAW UNIVERSITY

A Project work on

NON-OBSTANTE CLAUSE AND ITS

INTERPRETATION

SUBMITTED BY: MD.ESHTYAQUE ALI

ROLL NO. 943
4th YEAR B.A. LL.B (HONS.)

SUBMITTED TO : Dr. S MOHAMMAD ALI.

Faculty of I.S.P.L

1
 ACKNOWLEDGEMENT

The present project on the Non-Obstante clause and its interpretation has been able to get its
final shape with the support and help of people from various quarters. My sincere thanks go to all
the members without whom the study could not have come to its present state. I am proud to acknowledge
gratitude to the individuals during my study and without whom the study may not be completed.
I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Dr. S Mohammad Ali,
Faculty for I.S.P.L, Chanakya National Law University for helping me in my project. I am also
thankful to the whole Chanakya National Law University family that provided me all the
material I required for the project. I would also like to thank my parents without whose blessings the
completion of this project was not possible.

I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.
MD ESHTYAQUE ALI
ROLL NO. 943
7th Semester

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 RESEARCH METHODOLOGY

Method of Research:
The researcher has adopted a purely doctrinal method of research. The researcher has made extensive use of the
library at the Chanakya National Law University and also the internet sources.

Aims and Objectives:

The aim of the project is to present an overview of the terms Non-Obstante Clause and its
interpretation through decisions and suggestions and different writings and articles

Sources of Data:
The following secondary sources of data have been used in the project-
1. Books
2. Websites

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this research paper.

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Introduction

Whle nterpretng the meanng of provsons contaned n any statute, judges and lawyers rely
upon certan ads to constructon whch wll enable them to know as to what the Legslature
meant when t enacted a partcular statute. There are essentally two types of ads to constructon
of statutes:

nternal ads to constructon; and

External ads to constructon.

These are nternal ads to constructon because they are contaned n the statute tself. Thus, wth
relevance to ths article, a non-obstante clause s usually used n a provson to ndcate that the
provson should preval despte anythng to the contrary n the provson mentoned n such non-
obstante clause. n case there s any nconsstency or a departure between the non-obstante clause
and another provson, one of the objects of such a clause s to ndcate that t s the non-obstante
clause whch would preval over the other clause.1

Clause begnnng wth notwthstandng anythng contaned n ths Act or n some partcular
provson n the Act or n some partcular Act or n any law for the tme beng n force, s
sometmes appended to a secton n the begnnng, wth a vew to gve the enactng part of the
secton n case of conflct, an overrdng effect over the provson or Act mentoned n the non-
obstante clause. t s equvalent to sayng that n spte of the provson or the Act mentoned n
the non-obstante clause, the enactment followng t wll have ts full operaton or that the
provsons embraced n the non-obstante clause wll not be an mpedment for the operaton of
the enactment.2 Thus a non-obstante clause may be used as a legslatve devce to modfy the
ambt of the provson or the law mentoned n such clause5 or to overrde t n specfed
crcumstances.3

1
Parasuramaah v. Lakshamma AR 1965 AP 220.

2
Great Western Rly. Co. v. Swndon & Cheltenham Extenson Rly. Co., (1884) 9 AC 787, p. 808 (HL) (Lord
Bramvell
3
Unon of nda v. G.M. Kokl, 1984 (Supp.) SCC 196 : AR 1984 SC 1022; Chandavarker Sta Ratna Rao v.
Ashalata S. Guram, (1986) 4 SCC 477, pp. 477, 478 : AR 1987 SC 117; Narcotcs Control Bureau v. Kshan Lal,
AR 1991 SC 558, p. 561.

4
The phrase notwthstandng anythng n s used n contradstncton to the phrase subject to,
the latter conveyng the dea of a provson yeldng place to another provson or other
provsons to whch t s made subject.4

A non-obstante clause must also be dstngushed from the phrase wthout prejudce. A
provson enacted wthout prejudce to another provson has not the effect of affectng the
operaton of the other provson and any acton taken under t must not be nconsstent wth such
other provson.

Ordnarly, there s a close approxmaton between non-obstante clause and enactng part of the
secton and the non-obstante clause may throw some lght as to the scope and ambt of the
enactng part n case of ts ambguty, but when the enactng part s clear ts scope cannot be cut
down or enlarged by resort to a non-obstante clause. Further, the wde ampltude of a non-
obstante clause must be kept confned to the legslatve polcy and t can be gven effect to, to the
extent Parlament ntended and not beyond the same.5

Therefore, whle nterpretng a non statute clause, the court s requred to fnd out the extent to
whch the legslature ntended to gve t overrdng effect.6

The expresson notwthstandng anythng n any other law occurrng n a secton of an Act
cannot be construed to take away the effect of any provson of the Act n whch that secton
appears. n other words, any other law wll refer to any law other than the Act n whch that
secton occurs. n contrast, the expresson notwthstandng anythng contaned n ths Act may
be construed to take away the effect of any provson of the Act n whch the secton occurs but t
cannot take away the effect of any other law. The expresson notwthstandng anythng to the
contrary n any enactment cannot take away the effect of any provson n a law whch s not an
enactment.7

4
South nda Corporaton Pvt. Ltd. v. Secy., Board of Revenue, Trvandrum, AR 1964 SC 207, p. 215; rdum
nda Telecom Ltd. v. Motorola nc., (2005) 2 SCC 145, pp. 158,159.

5
Pannalal Banslal Patl v. State of Andhra Pradesh, 1996 (1) SC 405, p. 415 : AR 1996 SC 1023, p. 1032.

6
T.R. Thandur v. Unon of nda, AR 1996 SC 1643, p. 1651 (para 8).
7

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Internal aid to construction
A provson begnnng wth the words, notwthstandng anythng n ths Consttuton added n
the Consttuton by a Consttuton Amendment Act cannot be construed as takng away the
provson outsde the lmtatons on the amendng power and t has to be harmonously construed
consstent wth the foundng prncples and the basc features of the Consttuton. But subject to
ths lmtaton, exstng laws contnued under such a provson cannot be held vod on the ground
that they nfrnge anythng n the Consttuton ncludng Artcle 13 for the non-obstante clause
wll preclude any such attack.8

By Ordnance No. 19 of 1946 (promulgated under secton 72 of the Government of nda Act,
1935) secton 3 of whch provded; notwthstandng the expraton of the Defence of nda Act,
1939, and the rules made there under, all requstoned lands shall contnue to be subject to
requston untl the expry of ths Ordnance, all requstons made under the Defence of nda
Rules were contnued. t was, however, contended before the Supreme Court that secton 3
contnued only such requstons whch would have come to an end because of the expry of the
Defence of nda Act and Rules and not those, whch, by ther own language as to the lmtaton
of the perod expred pso facto on the date of expraton of the Act or Rules; and support for ths
contenton was sought n the non-obstante clause. Rejectng the contenton Bhagwat, J. observed
as follows:

The non-obstante clause need not necessarly and always be co-extensve wth the operatng
part so as to have the effect of cuttng down the clear terms of an enactment. f the words of the
enactment are clear and capable of only one nterpretaton on a plan and grammatcal
constructon of words thereof a non-obstante clause cannot cut down the constructon and restrct
the scope of ts operaton. n such cases, the non-obstante clause has to be read as clarfyng the
whole poston and must be understood to have been ncorporated n the enactment by the
Legslature by the way of abundant cauton and not by the way of lmtng the ambt and scope of
the operatve part of the enactment.9

8
R.S. Raghunath v. State of Karnataka, AR 1992 SC 81, p. 81 : Domnon of nda v. Shrnba ran, AR 1954 SC
596, p.599.
9
Domnon of nda v. Shrnba ran, supra, AR 1954 SC 596, pp. 599, 600.

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Provision and judicial approaches
The proper approach when the enactng part s not ambguous has been ndcated by the Supreme
Court n Ashwn Kumars Case10, where the queston arose as to the true constructon of secton

of the Supreme Court Advocates (Practce n Hgh Courts) Act, 1951, whch contaned a non-
obstante clause n the followng form Notwthstandng anythng contaned n the ndan Bar
Councls Act, 1926, or n any other law regulatng the condtons subject to whch a person not
entered n the roll of Advocates of a Hgh Court may be permtted to practce n that Hgh
Court.11

The Calcutta Hgh Court n construng secton 2 of the Act held that an advocate of the Supreme
Court was not enttled to act on the orgnal sde of that Hgh Court. Ths result was reached by
lmtng the enactng part of the secton by the non-obstante clause, n overrulng the Hgh Court,
Patanjal Shastr, CJ. observed:

This s not, n our judgment, a correct approach to the constructon of secton 2. t should frst
be ascertaned what the enactng part of the secton provdes on a far constructon of the words
used accordng to ther natural and ordnary meanng, and the non-obstante clause s to be
understood as operatng to set asde as no longer vald anythng contaned n the relevant
provson or exstng laws whch s nconsstent wth the new enactment.12

Proceedng further, the Chef Justce also stated:

the enactng part of the statute must, where t s clear, be taken to control the non-obstante
clause where both cannot be read harmonously; for, even apart from such a clause, a later law
abrogates earler laws clearly nconsstent wth t.13

10
Ashwn Kumar Ghosh v. Arabnda Bose, supra, AR 1952 SC 369
11
Sngh, G.P., PRNCPLES OF STATUTORY NTERPRETATON, 2010 (12th Ed.)(Lexs Nexs: Nagpur), pp. 369, 370.
12
Sarath, Vepa P., NTERPRETATON OF STATUTES, 2008 (4th Ed.)(Eastern Book Company: Lucknow), pp.
578,579.

13
bd at p. 580

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Per Mukerjea, J.:

t s one of the settled rules of constructon that to ascertan the legslatve ntent, all the
consttuent parts of a statute are to be taken together and each word, phrase or sentence s to be
consdered n the lght of the general purpose and object of the Act tself.

Although a relatve or a qualfyng phrase s normally taken wth the mmedately precedng term
or expresson, yet ths rule has got to be dscarded f t s aganst common sense and natural
meanng of the words and the expresson used Per Das, J.:

whle t may be true that the non-obstante clause need not necessarly be co-extensve wth the
operatve part, there can be no doubt that ordnarly there should be a close approxmaton
between the two.14

The above mode of approach n construng a non-obstante clause was followed n construng
secton 26 of the Travancore Cochn General Sales Tax Act (11 of 1125 ME). The secton whch
was added by an amendment n 1951 provded that: Notwthstandng anythng contaned n ths
Act a tax on the sale or purchase of goods shall not be mposed under ths Act, n cases wthn
the categores specfed under Artcle 286 were taken out of the purvew of the Act and the value
thereof could not be ncluded n the turnover of the dealer ether for assessment or for levy of
tax.15

n Kanwar Raj v. Pramod16, the Custodan of Evacuee Property cancelled a lease granted by hm,
under secton 12 of the Admnstraton of Evacuee Property Act, 1950. Secton 12 enacts:

Notwthstandng anythng contaned n other law for the tme beng n force the Custodan may
termnate any lease, etc.

t was contended that the power of the Custodan to cancel leases could be exercsed only so as
to overrde a bar mposed by any law but not the contract under whch the lease was held because
the non-obstante clause was lmted to anythng contaned n any other law for the tme beng n
force. t was held:

14
bd

15
A.V. Fernandez v. State of Kerala, AR 1957 SC 657, pp. 662, 663.
16
AR 1956 SC 105 : (1955) 2 SCR 977.

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the operatve porton of the secton whch confers power on the custodan to cancel a lease or
vary the terms thereof s unqualfed and absolute, and that power cannot be abrdged by
reference to the provson that t could be exercsed notwthstandng anythng contaned n any
other law for the tme beng n force. Ths provson s obvously ntended to repel a possble
contenton that secton 12 does not by mplcaton repeal statutes conferrng rghts or leases, and

cannot preval as aganst them and has been nserted ex abundant cautela. t cannot be
construed as cuttng down the plan meanng of the operatve porton of the secton.

n N.B. Pmputkar v. L.P. Pmputkar17, the queston was that whether a decree for possesson of
land awarded to the respondent had become n-executable by the reason of secton 4 of the
Gujarat Patel Watans Abolton Act, 1961. The secton provded as follows:

notwthstandng any usage or custom or anythng contaned n any settlement, grant, agreement,
sanad, or any other decree or order of the court or to the exstng watan law, wth effect on and
from the apponted day, () all patel watans shall be and are hereby abolshed.

t was contended on behalf of the appellant that the words any other decree or the order of the
court ndcated that the decree or the order of the court could not be executed wth effect from
the apponted day. t was therefore held:

t s a well establshed rule n constructon of statutes that general terms followng partcular
ones apply only to such persons or thngs as are ejusdem geners wth those comprehended n the
language of the legslature. n other words, the general expresson s to be read as
comprehendng only thngs of the same knd as that desgnated by the precedng partcular
expressons, unless there s somethng to show that a wder sense was ntended. n our opnon,
the openng clause of secton 4 ndcates that rrespectve of any usage, custom etc. and
rrespectve of any settlement, grant, agreement, sanad, or any other decree or order of the court
or to the exstng watan law whch mght have been defned and declared the ncdents
appertanng to patel watans, the results contemplated by the varous clauses of secton 4 would
follow and nothng contaned n the agreement, settlement, grant etc., would prevent the
operaton of the secton. But the fact that patel watans have been abolshed and ncdents
appertanng to the watans have been extngushed, does not lead to the concluson that the rght
of the erstwhle watandar to the possesson of the lands also comes to an end.

17
(1974) 1 SCC 11.

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A pquant condton arose before the Court n the case of Shr Ram Naran v. Smla Bankng &
ndustral Co. Ltd.18, where the competng statutes beng the Bankng Companes Act, 1949, as
amended by Act 52 of 1953 and the Dsplaced Persons (Debts Adjustment) Act, 1951. Secton
45A of the former Act, whch was ntroduced by the amendng Act of 1953 and secton 3 of the
latter Act, each contaned a non-obstante clause, provdng that certan provsons would have
effect notwthstandng anythng nconsstent therewth contaned n any other law for the tme
beng n force. Ths court resolved the conflct by consderng the object and purpose of the
two laws and gvng precedence to the Bankng Companes Act by observng as follows:

t s, therefore, desrable to determne the overrdng effect of one or the other of the relevant
provsons n these two Acts, n a gven case, on much broader consderatons of the purpose and
polcy underlyng the two Acts and the clear ntendment conveyed by the language of the
relevant provson theren

Secton 16 of the Hndu Marrage Act, 1955, whch legtmzes chldren born of vod marrages,
opens wth a non-obstante clause notwthstandng that a marrage s null and vod under secton
11, but havng regard to the language and benefcent purpose of the enactng clause t was held
to be not restrcted to marrages that were vod under secton 11 and chldren born out of all vod
marrages were held to be legtmatzed.

A specal enactment or rule cannot be held to be overrdden by a later general enactment or

smply because the latter opens up wth a non-obstante clause there should be a clear
nconsstency between the two before gvng effect to the non-obstante clause.

Even though the notwthstandng clause s very wdely worded, ts scope may be restrcted by
constructon havng regard to the ntenton of the legslature gathered from the enactng clause or

other related provsons n the Act. Ths may be partcularly so when the notwthstandng clause
does not refer to any partcular provsons of the statute generally. Thus the notwthstandng
clause n secton 21A of the Taml Nadu Land Reforms (Fxaton of Celng on Land) Act, 1961
whch reads notwthstandng anythng contaned n any other law for the tme beng n force
was construed not to overrde the defnton of strdhana land n secton 3(42) even f the case
fell wthn the enactng part of secton 21A whch valdated the partton effected by a regstered

18
AR 1956 SC 614 : 1956 SCR 603

10
nstrument between 15/2/1970 and 2/10/1970. The partton n that case was executed on
24/9/1970 gvng certan lands n favour of the mother n leu of her rght to mantenance. But as
the defnton of strdhana n secton 3(42) requred that a female should have held the land on
2/10/1970 as an owner, the land gven to the mother n the sad partton was held not to have
become a strdhana land.

Smlarly, secton 6 of the Government Savngs Certfcate Act, 1959 by whch a nomnee of the
certfcate on the death of the holder becomes enttled to the certfcate and to be pad the sum
due thereon notwthstandng anythng contaned n any other law for the tme beng n force, or
n any dsposng testamentary or otherwse n respect of any savng certfcate, does not make
the nomnee the owner of the sum so receved to the excluson of the legal hers as s clear from
secton 8 and the other provsons of the Act, the object of permttng nomnaton beng
essentally to prevent the delay n collecton of the money due under the certfcate after the
death of the holder.

But the wde meanng of the non-obstante clause and the enactng words followng t cannot be
curtaled when the use of wde language accords wth the object. Thus secton 2() of the Forest
Conservaton Act, 1980 whch provdes that notwthstandng anythng contaned n any other
law for the tme beng n force n any State, no State Government or other authorty shall make,
except wth the pror approval of the Central Government, any order drectng any forest land or
any porton thereof may be used for any non-forest purpose, was construed to prevent not only
grant of mnng lease n a forest but also renewal of a lease whch was at the opton of the lessee

under the Mneral Concesson Rules made under the Mnes and Mnerals (Regulaton and
Development) Act, 1957, wthout pror approval of the Central Government.

After referrng to the prncples and some of the cases mentoned above and the hstorcal
crcumstances n whch the precursor of secton 129 of the Cvl Procedure Code, 1908 was
ntroduced, the Supreme Court declned to construe the non-obstante clause n that secton n a
lmted sense and held that t was ndcatve of Parlaments ntenton to prevent the applcaton
of the Code n respect of cvl proceedngs on the orgnal sde of the Hgh Courts whch are to
be governed by the rules made by the Hgh Court whch wll preval over the rules contaned n
the Code.

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The nfluence of the non-obstante clause on a queston of constructon s llustrated by the rulng
n Muncpal Corporaton, ndore v. Smt. Ratnaprabha19. n ths case, the Supreme Court
consdered secton 138(b) of the Madhya Pradesh Muncpal Corporaton Act, 1956 whch enacts
that the Annual Value of any buldng shall notwthstandng anythng contaned n any other law
for the tme beng n force be deemed to be gross annual rent at whch such buldng mght
reasonably at the tme of assessment be expected to be let from year to year. n vew of the non-
obstante clause the Supreme Court held that the annual lettng value determned under secton
138(b) need not n every case be lmted to the standard rent whch mght be fxed for the
buldng under the Rent Control Act. The Court dstngushed ts earler cases on the ground that
n the enactments dealt wth n those cases there was no non-obstante clause as contaned n
secton 138(b) of the Muncpal Corporaton Act. The reasonng n those cases s that the
landlord commts an offence f he collects rent above the standard rent determnable under the
relevant Rent Control Act, and therefore, t can legtmately be stated that a landlord cannot be
expected to let a buldng for a rent hgher than the standard rent. n one of these cases, the

standard rent under the Rent Control Act had not been fxed but t was observed that the
authortes concerned ought to take nto account the prncples applcable for determnng
standard rent n fxng the annual lettng value. Ths reasonng could also be appled to secton
138(b) of the Madhya Pradesh Corporaton Act, but t was observed that the sgnfcance of the
non-obstante clause was that n cases where standard rent was not determned under the Rent
Control Act, the authortes under the Corporaton Act were not oblged to adopt the prncples
contaned n the Rent Control Act as the bass for determnng the annual lettng value.

The notwthstandng clause was also used n construng the enactng part of secton 32A of the
Narcotcs Drugs and Psychotropc Substances Act, 1958 (N.D.P.S. Act). Ths secton read as
follows:

Notwthstandng anythng contaned n the Code of Crmnal Procedure, 1973 or any other law
for the tme beng n force no sentence awarded under ths Act shall be suspended or remtted
or commuted. Secton 36 provdes for appeals and revson to the Hgh Court and says that t
may exercse, so far as may be applcable, all the powers conferred under Chapters XXX and

XXX of the Code of Crmnal Procedure, 1973. The queston before the Supreme Court was
whether, the Hgh Court could exercse ts powers of suspendng the sentence under secton 389
whch occurs n Chapter XXX of the Code, pendng an appeal. Havng regard to the wdth of
19
AR 1977 SC 308.

12
the notwthstandng clause n secton 36A, whch refers to the entre Cr.P.C. and any other law
for the tme beng n force, as also to the qualfyng words so far as may be applcable n
secton 36B, t was held that the Hgh Court has no such power and cannot suspend the sentence
awarded under the NDPS Act pendng an appeal before t.

Sometmes one fnds two or more enactments operatng n the same feld and each contanng a
non-obstante clause statng that ts provsons wll have effect notwthstandng anythng
nconsstent therewth contaned n any other law for the tme beng n force. The conflct n
such cases s resolved on consderaton of purpose and polcy underlyng the enactments and the
language used theren. Another test that s appled s that the later enactment normally prevals
over the earler one. t s also relevant to consder as to whether any of the two enactments can be
descrbed a specal one; n that case the specal one may preval over the more general one
notwthstandng that the general one s later n tme.These prncples were reterated by Thakker,
J. n KSL & ndustres Ltd. v. Arhant Threads Ltd.20 But f the non-obstante clause n a later
enactment s subject to and supplemental to the earler enactment also contanng a non-obstante
clause, the earler enactment may be nterpreted to preval over the later enactment. Ths led to a
dfference of opnon between Thakker, J. and Kabr, J. n the aforementoned case. Accordng to
Thakker, J. the non-obstante clause n secton 34 of the Recovery of Debts Due to Banks and
Fnancal nsttutons (RDDB) Act, 1993 whch was a later Act prevaled over Sck ndustral
Companes (Specal Provsons) Act (SCA) 1985 whch also contaned a non-obstante clause n
secton 32. But Kabr, J. held that secton 34(2) n RDDB made t subject to SCA and was to be
read n addton to and not n derogaton of SCA therefore SCA would preval over RDDB Act.
Both the judges agreed to allow the appeal and to set asde the judgment of the Hgh Court under
appeal but n vew of the dfference of opnon on nterpretaton drected that the papers be
placed before the CJ.

20
(2008) 9 SCC 763 paras 70 and 92

13
CONCLUSION

Hence, t can be concretely concluded that the hypothess formulated by the researcher has aded
the researcher to make a statement that the a non-obstante clause s a legslatve devce whch s
usually employed to gve an overrdng effect to certan provsons over some contrary
provsons that may be found ether n the same enactment or some other enactment, that s to
say, to avod the operaton and effect of all contrary provsons.

14
Bibliography

Books
Interpretation of statutes by sc roy

Intention of legislation: a brief about interpretation by neelanjana chatarajee

Online sources
https://indiancaselaws.wordpress.com/2014/12/10/difference-between-non-obstante-clause-and-
subject-to-other-provisions/

http://www.lawyersclubindia.com/forum/What-is-meaning-of-notwithstanding-in-the-law-
41458.asp

http://www.academia.edu/2590285/Non-Obstante_Clause

http://www.harjindersingh.in/non-obstante-clause-interpretation-of-statute

15