THE USE AND SCOPE
OF ‘NON OBSTANTE CLAUSE' IN STATUTES
By:
JAVAID AKHTER[1]
The
word “notwithstanding” also known as ‘Non Obstante
Clause’ occurs in numerous statutes[2]
as well as in the mother document, the constitution.[3]
This particular word is employed in different ways in different statutes. In
each case, the use of the word is peculiar and provides a new dimension to the
provision where ever it is used. Inherently, the word
"notwithstanding" has a meaning which gives an overriding effect,
where ever the same is used.[4]
It is completely different from other words/clauses like “without prejudiced
to"[5]
“subject to”,[6]
"except",[7]
"provided", "without generality to the foregoing"
"nothing herein contained ", and many similar words and phrases which
do supply a meaning or exception to a particular provision or the entire
statute. However, the non obstante clause carries
with it a command from the law maker whereby, the effect of all, which is
specifically mentioned with the clause, gets nullified. The use of ‘notwithstanding’
or ‘non obstante clause’ by the Legislature is not
with out significance. The non obstante clause, in
addition to providing emphasis, provides the intention to subordinate all the
commands it depicts, either the complete exclusions or complete abstinence from
some or all what is provided in a statute. The non obstante
clause is frequently employed by the law makers while framing the laws.
However, sometimes it is not employed at all.[8]
The legislature it appears, has
frequented the statutes with the non obstante clause
for obvious reasons, a few of which are
( i ) to clarify the power available in a
provision[9]
(ii) to provide an un-ambiguous statement conveying a direct message and (iii)
to maintain coherence to avoid contradictions or conflict in the provision of
the statute. Apparently, where the legislature needed to create exception to
the general rule, there it specifically employed phrases like “subject to”
“nothing herein contained” “provided” etc. These later clauses, which are
employed by the drafter to create an exception with in a particular provision
or chapter, may, to some extent, curtail the operation of the provision, yet in
no way, these phrases provide any overriding effect on other provisions of a
statute.[10]
The
use of non obstante clause in a provision, in a
manner, as to define the scope of provision's operational impact is a common
feature in statutes.[11]
Yet, wherever it is employed it is employed deliberately and consciously with a
motive, to curtail or expand[12]
the operation of a few or all the provisions of the statute or other statute.
In a sense this deliberate inclusion is necessitated sometimes by way of
expediency and sometimes it actually helps in adding meaning and substance to
the statute. This is equally visible in statutes which are substantive in
nature as well those which are procedural in nature. Statutes which are a
substantive law, the non-obstante clause may regulate
and provide an over-riding effect over the provisions of substantive as well as
procedural laws.[13]
On the other side of equation, the use of non obstante
clause in procedural laws, generally affect the operation of the procedural
clauses and not the substantive law unless specifically provided. This peculiar
fact has its own bearing on the use of non-obstante
clause. Substantive laws are mostly a rigid piece of legislation where
violation in most of the cases is visited by penal consequences, which on the
other hand are not as severe as in the case of procedural law, where the
violation is only termed as procedural impropriety[14].
In procedural laws, the person avoiding observance of
procedure may sometimes be deprived of the relief but may not be penalized.
Understandably, the employment of non obstante clause
in procedural laws does not always has far reaching consequences, but its use
in substantive laws, nevertheless, can
nullify substantive or the entire effect of the statute. For instance,
the proprietor of a Trade mark who is a national of a Convention country, has
been vested with the right to seek injunctive order against his agent or
representative, who is the registered user, notwithstanding the rights
conferred by the Trade Marks Ordinance on the registered use,r
in respect of the Trademark of whom the proprietor of the Convention country is
the owner.[15]
Thus a non obstante clause is usually used in a
provision to indicate that the provision should prevail despite anything to the
contrary in the provision mentioned in non obstante
clause. In case there is any inconsistency 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.[16]
In some instances non obstante clause is used in
Constitution to protect existing laws even if they may conflict with any of the
provision of the Constitution and in the absence of such protection, would be
declared ultra vires the Constitution.[17] Sometimes the non obstante
clause indicates specially the power of an authority to withdraw the matter at
a time when the matter is being considered by another duly constituted
statutory body.[18]
It is true that a non obstante
clause is used to avoid the operation and effect of all contrary provisions.
But to attract the applicability of the clause, the scheme of the Act and the
objects and reasons for which an enactment is made has to be kept in mind.[19]
For instance, “the effect of the ‘non obstante clause’ in Section 21-A is to override the Central
Act, namely, the Usurious Loans Act, 1918 and any other law relating to
indebtedness in force in any State. Obviously it does not expressly intend to
override the Code of Civil Procedure among the Central statutes. It is now well
settled that the scope and width of the non obstante
clause is to be decided on the basis of what is contained in the enacting part
of the provision”.[20] Yet,
from a different angle “it is settled legislative device to
employ non obstante clause to suitably alter the
pre-existing law consistent with the legislative policy under the new Act to
provide the remedy for the mischief, the legislature felt most acute”.[21]
The usage of non obstante clause has been constant
from the 1300s to the present day.[22] The Courts in
One may ask, is it beneficial and advantageous for a
legislature to employ non-obstante clause sometimes
discretely and sometimes indiscreetly? This is a very difficult question and it
would be inappropriate to attribute motive to the legislature. Nevertheless the
fact remains that the non obstante clause does
provide a tool for the drafters to avoid ambiguous and embarrassing situations.
But looking from a different angle its excessive use in any legislative
instrument, may point out the inadequate and inept knowledge and skills of
drafters. The word notwithstanding can be avoided and can be replaced by ‘either’,
‘although’ or ‘even if’. [23]
Conclusion
Having
gone through the above, it is quiet apparent that the interpretation of the non
obstante clause shall continue to develop in
different situations and will continue to depict the legislative intent. Besides,
the interpretation could also provide an opportunity to the legislators or the
drafters to employ non obstante clause in a manner
which is more conducive and more profound. Further the above judgments or the
like may help the legislators to increase or decrease the use of non obstante clause. The courts on the other hand will continue
to interpret the non obstante clause whenever they
are confronted with the need to interpret the existing or new legislative
instruments. However 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, the parliament intended and not beyond the same.
[1] The author is working as Assistant Professor of Law, University
law College, University of the
[2] Trade Mark Ordinance 2001,
Sections 16(1), 63, 81(2), 87(5), 90(2), 104(2),109(4);Copyright Ordinance,
1962, Sections 6(1), 47(1), 62(1), 71(2); Patents Ordinance 2000, Sections
8(3), 16(7), 32(1),38, 58(11), 59(2), 67(1), 78(2), 106(2), 106(4); Registered
Designs Ordinance 2000, Sections 2(m)(ii).
[3] The Constitution of Islamic
Republic of Pakistan 1973 Arts 8(4), 41(7)(b), 41(9), Proviso to 44(1),
47(1),48(2), 58(2), 67(1), 73(1), 85, 86, 91(2a), 125, 126, 130(2a), 146(1),
146(2), 147, 155(5), 159(2), 160(4), 161(1), 164, 165A(2), 203A, 212(1),
212(2), 232(2), 232(8), 234(4), 235(2), 247(4), 247(5), 252(1), 268(6), 269(1),
269(2), 270(2), 270(3), 270(4), 270A(1) 270A(2), 270AA(1), 270AA(2), 270B,
[4]
[5] Income Tax Officer vs. Gwalior
Rayon Silk Manufacturing Co. Ltd: AIR 1976 SC 43
[6] South India Corporation Vs.
Secretary Board of Revenue
[7]
Habibul Wahab El-Kheri vs. Ch. Saeed Ahmad 1979 SCMR 545.
[8]Microfinance Institutions Ordinance
2001.
[9] Azhar Salam vs. Federation of
[10]
[11]
[12]
[13] Mst Zaibun Nisa vs. Muhammad
Mozammil: PLD 1972 Kar 410.
[14]
Barnett, Hilaire Constitutional
and Administrative Law (New Delhi: Lawman India Private Ltd 1996) Pp.701,
726, 749-766.
[15] Trade Marks Ordinance 2001:
Section 90(2)
[16] M/S E.F.U General Insurance
Company Ltd vs. The federation of
[17] State of
[18] M/S Baho Film corporation vs.
Islamic
[19] Vishin N. Khanchandani and another
vs. Vidya Lachmandas Khanchandani and another AIR 2000 SC 2747.
[20] N.M. Veerappa vs. Canara Bank AIR 1998 SC 1101 (relying upon Aswini Kumar Ghosh vs.
Arabinde Bose 1953 SCR 1)
[21] Pannalal Bansilal Pitti and
Others. Etc vs. State of
[22] Garner, Bryan A; A dictionary of
Modern legal Usage 2nd Ed (
[23] ibid