Non Obstante Clause
A non obstante clause is a legislative provision beginning with the phrase 'notwithstanding anything contained in,' which gives the provision overriding effect over other laws or provisions that may be inconsistent with it.
What is a Non Obstante Clause?
A **non obstante clause** (from the Latin *non obstante*, meaning "notwithstanding") is a provision in a statute that typically begins with the phrase **"notwithstanding anything contained in"** a specified Act, section, rule, or "any other law for the time being in force." The purpose of this clause is to give the provision in which it appears **overriding effect** — that is, to ensure that the provision prevails even if other laws or provisions are inconsistent with it.
In everyday terms, when a law says "notwithstanding anything in any other law," it means: "Even if some other law says something different, this provision will prevail." It is the legislature's way of declaring that a particular provision takes priority.
Purpose and Function
Non obstante clauses serve several important legislative purposes:
1. **Resolving conflicts:** When there are multiple laws dealing with the same subject, a non obstante clause clarifies which provision prevails in case of inconsistency.
2. **Creating exceptions:** The clause exempts the provision from the operation of other laws that would otherwise apply.
3. **Establishing priority:** It declares the legislative intent that the provision in question takes precedence over all other provisions.
4. **Ensuring effective operation:** It removes potential obstacles that other provisions might create for the effective operation of the clause.
Common Forms
Non obstante clauses appear in various forms:
- **"Notwithstanding anything contained in this Act..."** — gives overriding effect over other provisions within the same Act.
- **"Notwithstanding anything contained in [specific Section/Act]..."** — overrides a specific identified provision or Act.
- **"Notwithstanding anything contained in any other law for the time being in force..."** — gives the broadest overriding effect, prevailing over all other laws.
- **"Notwithstanding anything to the contrary contained in any other law..."** — overrides only those provisions of other laws that are inconsistent.
Examples in Indian Legislation
Non obstante clauses are extremely common in Indian statutes. Notable examples include:
Insolvency and Bankruptcy Code, 2016
**Section 238:** "The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."
This broad non obstante clause was interpreted by the Supreme Court in **Innoventive Industries Ltd. v. ICICI Bank (2018)** to mean that the IBC overrides all other laws, including state legislation, to the extent of inconsistency.
RERA (Real Estate (Regulation and Development) Act, 2016)
**Section 89:** Contains a similar overriding provision ensuring RERA prevails over other laws in matters of real estate regulation.
Prevention of Money Laundering Act, 2002
**Section 71:** "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
Indian Constitution
The Constitution itself contains several non obstante clauses:
- **Article 13(1):** "All laws in force... inconsistent with the provisions of this Part [fundamental rights], shall, to the extent of such inconsistency, be void."
- **Article 31B:** "Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts... specified in the Ninth Schedule... shall be deemed to be void..." (acts as a non obstante provision shielding certain laws from fundamental rights challenges).
- **Article 254(1):** In case of conflict between a State law and a Union law on a Concurrent List subject, the Union law prevails.
Rules of Interpretation
Courts have developed several principles for interpreting non obstante clauses:
1. Must Be Given Full Effect
The Supreme Court in **Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447** held that a non obstante clause must be given its **natural and grammatical meaning**. If the legislature intended to give overriding effect, the court must respect that intention.
2. Scope is Limited to Inconsistency
A non obstante clause overrides other provisions only to the extent of **actual inconsistency**. If there is no conflict between the non obstante provision and other laws, both can operate harmoniously, and the non obstante clause does not render the other law nugatory.
The Supreme Court in **R.S. Raghunath v. State of Karnataka (1992) 1 SCC 335** held: "A non obstante clause is a legislative device which is usually employed to give overriding effect to a provision over another in case of conflict between two provisions."
3. Cannot Override Fundamental Rights
A non obstante clause in ordinary legislation **cannot override fundamental rights** guaranteed by the Constitution. Article 13(2) declares that any law contravening fundamental rights is void — this constitutional mandate cannot be overcome by a statutory non obstante clause.
4. When Two Non Obstante Clauses Conflict
When two statutes, each containing a non obstante clause, come into conflict, courts resolve the issue by examining:
- Which Act is **later in time** (the later Act generally prevails).
- Which Act is a **special law** vis-a-vis the other (a special law prevails over a general law).
- The **legislative intent** and purpose behind each provision.
5. Not a Blanket Override
Courts have cautioned against reading non obstante clauses as providing a **blanket override** of all other laws. The overriding effect is limited to the **specific subject matter** of the provision. The Supreme Court in **Union of India v. G.M. Kokil (1984) Supp 1 SCC 196** held that a non obstante clause must be understood in the context of the provision in which it occurs.
When Does This Term Matter?
In Resolving Statutory Conflicts
When multiple laws apply to the same situation — for instance, the IBC and a state-level debt recovery law, or RERA and a consumer protection statute — non obstante clauses determine which law takes priority. Lawyers must carefully analyse these clauses to advise clients on which legal framework governs their situation.
In Constitutional Litigation
Arguments about non obstante clauses frequently arise in constitutional cases, particularly when the government seeks to justify a law that appears to override other protections. Understanding the limits of non obstante clauses — especially that they cannot override fundamental rights — is critical.
In Drafting Legislation and Contracts
Legislative drafters use non obstante clauses deliberately to ensure that new legislation is not rendered ineffective by pre-existing laws. Similarly, understanding these clauses is essential for lawyers advising on regulatory compliance, as a new statute with a non obstante clause may fundamentally alter the legal landscape in a particular field.
In Administrative and Regulatory Matters
When a regulatory body exercises powers under a statute containing a non obstante clause, it may claim authority that overrides other regulatory frameworks. Understanding the scope and limits of such clauses is essential for businesses operating under multiple regulatory regimes.
Landmark Cases
- **Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447:** The Supreme Court laid down principles for interpreting non obstante clauses, holding that they must be given their natural meaning.
- **Innoventive Industries Ltd. v. ICICI Bank (2018) 1 SCC 407:** Interpreted Section 238 of the IBC to hold that the IBC's non obstante clause gives it overriding effect over all inconsistent laws.
- **Central Bank of India v. State of Kerala (2009) 4 SCC 94:** Addressed the conflict between two statutes each containing non obstante clauses, and applied the principle of special law prevailing over general law.
- **A.P. State Financial Corporation v. M/s Gar Re-Rolling Mills (1994) 2 SCC 647:** Discussed the interplay between non obstante clauses in different enactments.
Frequently Asked Questions
Does "notwithstanding anything contained in any other law" mean the provision overrides everything?
Not literally everything. While such broad non obstante clauses give the widest overriding effect, they are subject to important limitations. They **cannot override fundamental rights** under the Constitution. They override other provisions only to the extent of **actual inconsistency**. Courts interpret them in the context of the specific provision and the purpose of the Act, not as unlimited override clauses.
What happens when two laws both have non obstante clauses?
When two statutes each containing non obstante clauses conflict, courts resolve the issue by applying principles of statutory interpretation: the **later enactment** generally prevails over the earlier one; a **special law** prevails over a general law; and the court examines the **legislative intent** and purpose behind each provision. There is no automatic rule — the resolution depends on the specific context and the nature of the conflict.
Can a non obstante clause in one section override another section of the same Act?
Yes. Non obstante clauses are frequently used within the same Act to create exceptions or give priority to one provision over another. For example, a general provision may be made subject to a specific provision through a non obstante clause. In such cases, the provision containing the non obstante clause prevails to the extent of inconsistency with the other section.
How should a non obstante clause be read when interpreting a statute?
A non obstante clause should be read as the legislature's **express declaration of intent** that the provision in which it appears shall prevail over other specified or unspecified provisions in case of conflict. It should be given its **natural and grammatical meaning**, but its scope is limited to actual inconsistency. If harmonious construction is possible — that is, if both the non obstante provision and the other provision can be given effect without conflict — the court should adopt harmonious construction rather than treating one as completely overriding the other.
Disclaimer: This glossary entry is for informational purposes only and does not constitute legal advice.
Related Legal Terms
Ultra Vires
Ultra vires is a Latin term meaning 'beyond the powers,' used to describe an act performed by an authority, corporation, or official that exceeds the legal power or authority granted to them by law.
Judicial Review
Judicial review is the power of courts to examine and invalidate legislative enactments and executive actions that violate the Constitution or exceed the authority granted by law.
Ratio Decidendi
Ratio decidendi is the legal principle or reasoning that forms the basis of a court's decision and serves as a binding precedent for future cases involving similar facts and legal questions.
Stare Decisis
Stare decisis is a Latin legal doctrine meaning 'to stand by things decided,' which requires courts to follow the legal principles established in previous decisions of higher or coordinate courts when deciding similar cases.