NATIONAL LAW UNIVERSITY ODISHA

INTERPRETATION OF STATUTES
PROJECT TOPIC

THE NON OBSTANTE CLAUSE: ITS ROLE IN INDIAN

STATUTORY INTERPRETATIO

SUBMITTED TO: SUBMITTED BY:

Prof.AbhikMajumdarAkhileshChandakAsst. Prof. of Law

(2012/BBA/008)
Himanshu R. Paliwal
 (2012/BBA/023)Table of Authorities
CASES
A.V. Fernandez v. State of Kerela, AIR 1957 SC 657.............................................................7
Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369.................................................8, 9
Aswini Kumar Ghose v. Arabinda Ghose, AIR 1952 SC 369...................................................6
Bank of India Vs. Ketan Parekh, AIR (2008) SC 2361.........................................................10
Golak Nath v. State of Punjab, AIR 1967 SC 1643.............................................................12
ICICI Bank Ltd. v. Sidco Ltd., (2006) 10 SCC 452...............................................................8
ITO v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd., AIR 1976 SC 43..........................8
K. Parasuramaiah v. Pokurl Lakshmamma ,AIR 1965 AP 220...............................................12
K.S.L. Industries Vs. Arihant Threads , (2008) 9 SCC 763..............................................10, 11
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461............................................11, 12
Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1SCC 85].........................8
P. Virudhachalam v. Management of Lotus Mills, AIR 1998 SC...............................................8
Pannalal Bansilal Patil v. State of Andhra Pradesh, 1996 (1) Scale 305......................................7
Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur,
AIR 1966 SC 1318................................................................................................... 7
R.S Raghunath v. State of Karnataka, (1992) 1 SCC 335........................................................8
Satyannarayan Sharma v. State of Rajasthan, AIR 2001 SC 2856.............................................9
Shankari Prasad v. Union of India, AIR 1951 SC 458..........................................................12
Shrada Devi v State of Bihar, AIR 2002 SC 1357.................................................................9
South India Corporation (P) Ltd v Secy., Board of Revenue, Trivandum, AIR 1964 SC 207.............7
Swaran Singh Vs. Kasturi Lal ,AIR 1977 SC 265...............................................................10

CONSTITUTIONAL PROVISIONS
Article 13 (2) of The Constitution of India.......................................................................11
Article 368(1) of The Constitution of.............................................................................. 11

BOOKS REFERRED
Dr. A.B. Kafaltiya, Intepretation of Statues, 1st edition, 2014, 148...............................7, 9, 11
Justice G.P Singh, Principles of Statutory Interpretation, 25th edition, 2011,364.......................7
M.N Rao and Amita Dhanda, N.S Bindras Intepretation of Statues, 964.................................8
M.P Jain Indian Constitutional Law, 6th edition, 1765......................................................13
S.C Sarkar, Sarkars Principle of Statutory Interpretation, 1st edition, 2012, 68.........................7
 RESEARCH METHODOLOGY

The paper undertakes a doctrinal form of research methodology, which is a method of inquiry
appropriated in many different academic disciplines. Qualitative research aims to gather an
in- depth understanding of the Nonobstante Clause.

OBJECTIVES
The aim of this paper is to bring forth various issues and facets related to non obstante clause.
Thereby, the objective of this paper is -

To study the relevancy of Non obstante Clause in statutory interpretation.

To understand various facets related to competing Non obstante clauses.
To understand the role played by Non obstante Clause in interpretation of
Constitution of India.

RESEARCH QUESTIONS
To study the intent of legislature behind the inclusion of non obstante clause in any
provisions.

COVERAGE & SCOPE

Due to the nature of this project, the authors will not venture into the legislative and historical
origin of non obstante clause. Owing to paucity of space, the researcher will be unable to
include all the cases and limit herself to analysing and discussing only the relevant case laws
directly related to the topic.
 CHAPTER - I

INTRODUCTORY OVERVIEW

Historically, the non obstante clause was used as a power by the Kings and the monarch to
dispense with the laws in any particular case. This power was later abolished by the bill of
rights. However in modern jurisprudence of statutory interpretation, the usage of this term
remains more of less the same. The relevance of non-obstante clause in this modern era
cannot be undermined, given the complex and myriad nature of statutory interpretation. This
non-obstante clause has a role to play in every domain of law, be it Constitutional Law,
Commercial Law, Code of Civil Procedure, Arbitration Law or any other laws. While this
clause can come handy to the legislative to make a suitable and effective law, this clause
alone can sometime generate plethora of litigation. Needless to say, the accurate
interpretation of this clause is of paramount importance. Any twisted interpretation of this
clause, may put a veil over the legislative intention. This paper endeavors to bring the
contemporary picture of the non-obstante clause with respect to various judicial
pronouncements. Most importantly, the role of non- obstante clause will be evident once the
author discusses the Constitutional Law cases. Non obstante clause had a role to play in the
much debated conflict between Article 13 and Article 368 of the Constitution of India. The
entire journey from Shankari Prasad case to KeshavananadaBharati has been covered in this
paper.

To maintain Coherency, this paper has divided into four segments. The first segment of the
paper brings before the readers the meaning and the relevancy of non obstante clause. An
important differentiation of non obstante clause from other statutory terminology has been
covered in this segment. Another part of the paper explains the scope of the non obstante
clause which has been facilitated by a case analysis of a landmark judgment delivered by the
Supreme Court in Aswini Kumar Ghose v. Arabinda Bose. 1Another part of the paper covers
within its ambit the conflict between two obstante clause operating in the same field and
different field.

1Aswini Kumar Ghose v. ArabindaGhose, AIR 1952 SC 369.

 I. MEANING AND RELEVANCY OF NON-OBSTANTE CLAUSE

The expression non-obstante means notwithstadningor without regard to or prevention

by.2 Sometimes, a section commences with the clause stating that notwithstanding anything
contained in this Act or any law for the time being in force, or some particular provision or in
the particular Act and then starts the enacting part of the said section; the idea here is to give
overriding effect to the enacting part of the said section over the provision mentioned in the
non- obstante clause.3 It is equivalent to saying that in spite of the provisions or Act
mentioned in the non obstante clause, the enactment following it will have its full operation
or that the provision or law mentioned in the non obstante clause or to override it in specified
circumstances.4In plain words, the law indicated in the non-obstante clause will not remain
any hindrance or obstacle in the application of the enacting part of the section. The section to
which notwithstanding anything contained in any law for the time being in force or specific
mention of law is annexed it takes away what other provision confers and it say whatever is
said in section so and so, this or that will happen. 5 The form of words used may be regarded
merely as a convenient method of impliedly repealing the inconsistent provisions of law on
the subject, but to apply only the enacting part of the non-obstante clause. 6 Though it is not
safe to generalize, yet by and large, it is found that the enacting provision is that which is
immediately preceded by the word notwithstanding.7It is a legislative device which is used to
give overriding effect to certain provisions over some contrary provisions that may be found
either in the same enactment or some other enactment, that is to say, to avoid operation and
effect of all contrary provision.

DIFFERENCE OF NON-OBSTANTE CLAUSE FROM OTHER TERMINOLOGY

2 Justice G.P Singh, Principles of Statutory Interpretation, 25th edition, 2011,364.

3 S.C Sarkar, Sarkars Principle of Statutory Interpretation, 1st edition, 2012, 68.

4PannalalBansilalPatil v. State of Andhra Pradesh, 1996 (1) Scale 305.

5 A.V. Fernandez v. State of Kerela, AIR 1957 SC 657..

6 Justice G.P Singh, Principles of Statutory Interpretation, 25th edition, 2011,368.

7Dr. A.B. Kafaltiya, Intepretation of Statues, 1st edition, 2014, 148

The phrase notwithstanding anything in is used in contradiction to the phrase subject to,8
the later conveying the idea of a provision yield place to another provision or other provision
or other provision to which it is made subject. 9 A non obstante clause must also be
distinguished from the phrase without prejudice.10 In The Income Tax Officer, 'A' Ward,
Indore v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd., Birlagram, Nagda where
the issue before the Supreme Court was regarding the interpretation of section 220(2) and
220(3), the apex court held that unlike the non obstante clause, a provision enacted without
prejudice to another provision has not the effect of affecting the operation of the other
provision and any action taken under it must not be inconsistent with such provision.11

II. SCOPE OF NON-OBSTANTE CLAUSE

Generally, there exist a nexus between the non obstante clause and the enacting part of the
section and in case of ambiguity, the non obstante clause may clarify the boundaries of the
enacting part.12Contrary to this popular perception, the Supreme Court in R.S Raghunath v.
State of Karnataka,13 has held that in a scenario where the words of the enactment part is
clear and unambiguous, then the non obstante clause cannot limit the scope and boundaries
of the enacting part of the statue. 14 In the case of ICICI Bank Ltd. v. Sidco Ltd15, it was held
that though the non obstante clause may be of wide amplitude but the legislative policy will
confine it to the extend Parliament intended and not beyond the same. Another case in which

8Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur,
AIR 1966 SC 1318.

9South India Corporation (P) Ltd v Secy., Board of Revenue, Trivandum, AIR 1964 SC 207.

10M.N Rao and AmitaDhanda, N.S BindrasIntepretation of Statues, 964.

11ITO v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd., AIR 1976 SC 43..

12Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369

13R.S Raghunath v. State of Karnataka,(1992) 1 SCC 335.

14Aswini Kumar Ghose v. ArabindaGhose, AIR 1952 SC 369.

15 ICICI Bank Ltd. v. Sidco Ltd., (2006) 10 SCC 452

the scope of non-obstante clause was discussed, it was observed by Justice Hidayatullah:
that the non obstante clause is no doubt a very potent clause intended to exclude every
consideration arising from other provisions of the same statute or other statute but for that
reason alone we must determine the scope of that provision strictly.16

The expression notwithstanding anything in any other law occurring in a section of an Act
cannot be construes to take away the effect of any provision of the Act in which the Section
appears.17The term, any other law will refer to any law other than any Act in which the
section occurs.18 Also, unless there is a clean conflict between specific law and the general
law the former cannot override the later merely because there exist1920 a non obstante clause.21

ASWINI KUMAR GHOSE V. ARABINDA BOSE22: CASE SPECIFYING

THE BOUNDARIES OF NON- OBSTANTE CLAUSE

The scope of the non-obstante clause can be well understood from one of the earliest and the
leading case on Non-obstante clause i.e. Aswini Kumar Ghose v. Arabinda Bose 23 The issue
before this case was the true construction of Section 2 of the Supreme Court
Advocates(Practice in High Courts) Act, 1951. The section reads as follows:

"Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other
law regulating the conditions subject to which a person not enrol in the Advocates of a High

16MadhavRaoJivajiRaoScindia v. Union of India and another [(1971) 1SCC 85].

17P. Virudhachalam v. Management of Lotus Mills, AIR 1998 SC 554

18Id.

19Satyannarayan Sharma v. State of Rajasthan, AIR 2001 SC 2856.

20Shrada Devi v State of Bihar, AIR 2002 SC 1357.

21Dr. A.B. Kafaltiya, Intepretation of Statues, 1st edition, 2014, 148.

22Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369.

23Id.
Court may, be permitted to practice in that High Court. Whether, this included the right to
practice in original side of the High Court. The Supreme Court interpreted the non-obstante
clause in its natural meaning, the court says that the practice meant acting on behalf of client
and pleading on behalf of client. Thus, the non-obstante clause included the right to practice
in the original side of the High Court and not only the appellate side of the High Court as was
held by the High Court. Thus, it reverses the decision of the High Court. Also, the principles
laid down in this case were:

1. First ascertain what a fair construction of the enacting provision provides.24

2. After that, the non-obstante clause should be construed as setting aside anything that
conflicts with the enacting provisions.25
3. The enacting part must control the non-obstante clause when its meaning is clear.26

III. CONFLICT BETWEEN TWO NON-OBSTANTE CLAUSE

OPERATING IN THE SAME FIELD

It will be interesting for the readers to visualize a situation in which there is a conflict
between two non obstante clause operation in the same field/domain of law. The conflict
between two non-obstante clauses operating in the same field has arisen many a time as an
issue before various adjudicatory forums. The authors will discuss few major cases where
two conflicting non-obstante clause was one of the issue for adjudication.

In the leading case of Swaran Singh Vs. KasturiLal,27the court laid down the guidelines for
resolving the direct conflict between two non-obstante clause contained in two different
statutes the Supreme Court analysed that when two or more law operate in the same field
and each contain a non-obstante clause stating that its provisions will override those of any
other law the case have to be decided by reference to the object and purpose of the laws under
consideration.28

24Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369

25 Id.

26 Id.

27Swaran Singh Vs. KasturiLal,AIR 1977 SC 265.

 IV. CONFLICT BETWEEN TWO NON-OBSTANTE CLAUSE

OPERATING IN TWO DIFFERENT FIELD

If two non-obstante clauses clashes then the court in various cases gave certain guidelines
with regard to solve the conflict between the two non-obstante clause operating in two
different field, principles in this context are

1. Resolve the conflict by considering the objectives and policy.

2. The later act prevails over the earlier act.
3. Special act prevails over the general law.

The above mentioned principles were followed in no. of cases such as K.S.L. Industries Vs.
Arihant Threads29and Bank of India Vs. Ketan Parekh30.

K.S.L. Industries Vs. Arihant Threads

If two Acts operating in different domain of law contains wide notwithstanding clauses, and
if there is a conflict then harmonious construction has to be applied. In KSL and Industries
Ltd. v. Arihant Threads Ltd.31, the question was whether the non obstante clause in Section
22 of Sick Industrial Companies (Special Provisions) Act, 1985 or the non obstante clause in
Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993
should prevail.

The conflict in this case is slightly different, in this case, non- obstante clause in the later
statue was subject to and supplemental to an earlier enactment and in such a scenario the
earlier enactment may be interpreted to prevail over the later enactment. These lead to a
difference of opinion between Justice Thakker and Justice Kabir, who were adjudicating this
case. According to Justice Thakker, the non obstante clause in Section 34 of the Recovery of
Debts Due to Banks and Financial Institution (RDDB) Act, 1993 which was a later Act
prevailed over the Sick Industrial Companies (Special Provision) Act (SICA) 1985. However
Justice Kabir gave a different interpretation and held that Section 34(2) in RDDB Act made it
28 Id.

29K.S.L. Industries Vs. ArihantThreads ,(2008) 9 SCC 763.

30Bank of India Vs. Ketan Parekh, AIR (2008) SC 2361.

31 K.S.L. Industries Vs. ArihantThreads , (2008) 9 SCC 763.

subject to SICA and was to be read in addition to and not in derogation of SICA, therefore
SICA would prevail over the RDDB Act.32

V. NON-OBSTANTE CLAUSE UNDER CONSTITUTION OF INDIA

Article 13(2) states that33&Article 368(1) states that34, over quite a long period, the Supreme
Court has tried to solve the conflict between Article 13 (2) and Article 368 (1). Article 13 (2)
says that any law would be void if it would go against the part III of the Constitution. Article
368 (1) starts with notwithstanding part and ends with enactment power which is given to
Parliament to exercise it amending power. Before the landmark case of KesavanandaBharati
Case35, the Supreme Court had dealt the same issue in three preceding case to
KesavanandaBharati Case. In the case of K. Parasuramaiah vs. PokurlLakshmamma,36the
court held that when there is any inconsistency or departure between the non obstante
clause and another provision one of the objects of such a clause is to indicate that it is the non
obstante clause which would prevail over the other clause. Following the plain meaning, it
would be clear that Article 368 would prevail over Article 13 because of the addition of a non
obstante clause in Article 368.

Until the case of GolakNath v. State of Punjab,37 the Supreme Court had been holding that no
part of our constitution is unamendable and that Parliament may, by passing a Constitutional

32Dr. A.B. Kafaltiya, Intepretation of Statues, 1st edition, 2014, 222.

33 See Article 13 (2) of The Constitution of IndiaThe State shall not make any law which takes
away or abridges the rights conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.

34See Article 368(1) of The Constitution of IndiaNotwithstanding anything in this Constitution,

Parliament may in the exercise of its constituent power amend by way of addition, variation or power
amends by way of addition, variation or repeal any provision of this Constitution in accordance with
the procedure laid down in this article.

35KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461.

36K. Parasuramaiah v. PokurlLakshmamma ,AIR 1965 AP 220.

37GolakNath v. State of Punjab, AIR 1967 SC 1643.

Amendment Act, in compliance with the requirements of Artcle 368, amend any provision of
the Constitution, including the Fundamental Rights and Article 368 itself.38

The Supreme Court said that Article 368s non obstante clause does not give superiority to
the extent that Parliament can amend the fundamental rights. Chief Justice SubbaRao
presiding over this case said that Fundamental Rights is equal to natural rights and
characterized them as the primordial rights necessary for the development of human
personality.

However, the majority decision in GolakNaths case39 was superseded by the Constitution by
inserting Clause(4) in Article 13, and Clause(1) in Article 368, by way of 24th Amendment,
1971. Article 13(4) state: (4) Nothing in this article shall apply to any amendment of this
constitution made under Article 368. It was judicial minds which prudently excluded
fundamental rights out of the amendment process. After this amendment, the scope for
judiciary to interfere became less because of an express intent of the legislature which was
now present in Article 368.

The case of KesavanandaBharati v. State of Kerala40 will always to be remembered in the

history of saving of fundamental rights. The Supreme Court said that while Parliament can
amend any constitutional provision by virtue of Article 368, such a power is not absolute and
unlimited and the courts can still go into the question whether or not an amendment destroys
a fundamental or basic feature of the Constitution. The SC went to extra-mile saying that
even though Article 368 starts with notwithstanding clause, but still it cannot give power to
amend Fundamental Rights. The wide amplitude of a non obstante clause must be kept
confined to the legislative policy and it can be given effect to, to the extent Parliament
intended and not beyond the same.41.

38Shankari Prasad v. Union of India, AIR 1951 SC 458.

39GolakNath v. State of Punjab, AIR 1967 SC 1643

40KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461.

41 M.P Jain Indian Constitutional Law, 6th edition, 1765.

 VI. CONCLUDING REMARKS

Needless to say, the word non-obstante clause has acquired an important space in the
lexicon of statutory interpretation. As we have discussed the scope of this clause very
broadly, it the right time to summarize the whole research. From those days when laws were
started to take place in codified form, the non obstante clause has been playing an important
part in expressing the laws with more clarification. In the beginning, there were many
differentiations in the uses of this clause, but gradually judiciary as well as legislature has
defined the scope of the clause.

It wouldnt be exaggerating if we would say that non obstante clause has now become one of
the important parts of any legislature. Some jurists argue that it is a tool given to legislators to
do anything with the legislation which sometimes being used for unnecessary purposes. They
are right to some extent, but in our opinion, there are checks and balances in using that
clause. For example, after Golaknath case, a non obstante clause was inserted into article
368(1) which gave power to Parliament to amend even Fundamental Rights. But in the
landmark judgment of Kesvananda Case, the Supreme Court interpreted non obstante clause
in a way where the clause would be read with the object of our Constitution.

Finally, we would like to conclude by saying that non obstante clause has a long history of
different ways of interpretation in various countries. In Canada, there was a time when there
used to take place a crucial debate on interpretation of non obstante clause in section 33 of
Charter Act. Now a days, there is a sense of certainty with the use of non obstante clause in
the judiciary as well as legislatures.