Non Obstante Clauses and Legal Fictions

Two drafting devices appear constantly in Indian statutes. The non obstante clause, beginning 'notwithstanding anything contained in', gives a provision priority over other law. The deeming provision, or legal fiction, requires something to be treated as what it is not. Both can change the result of a case decisively, and both have settled rules about how far they reach. This note explains each device, its effect, and its limits.

1. The Non Obstante Clause

A non obstante clause is a phrase such as 'notwithstanding anything contained in this Act' or 'notwithstanding anything contained in any other law for the time being in force'. It is used to give the provision in which it appears overriding effect over the provisions or laws it names, in case of conflict.

Figure 1: How a non obstante clause operates

• Overriding effect. In Aswini Kumar Ghosh v Arabinda Bose (1952) the Supreme Court described the non obstante clause as appended to a provision to give it overriding effect over the provisions referred to, where there is a conflict.
• Meaning. In Chandavarkar Sita Ratna Rao v Ashalata S. Guram (1986) the Court explained that 'notwithstanding' means in spite of or despite: the provision prevails despite anything to the contrary in the named law.
• Only in conflict. The clause comes into play only where there is a real inconsistency; it does not override provisions that can stand together.
• Enacting part governs. The scope of the provision is found in its enacting words; the non obstante clause does not by itself enlarge or cut down that scope.

2. Non Obstante and 'Subject To'

• Notwithstanding. The provision prevails over the law named.
• Subject to. The provision yields to the law named; it operates only so far as consistent with it.
• Read together. Where one provision says 'notwithstanding' and the other says 'subject to', the result is clear; the provision with the non obstante clause prevails.

3. Conflict Between Two Non Obstante Clauses

• The general rule. Where two statutes each contain a non obstante clause, the court looks to the object and purpose of each. Ordinarily the later statute prevails, as the Supreme Court held in Solidaire India v Fairgrowth Financial Services (2001), since the legislature is aware of the earlier law when enacting the later.
• Special over general. A special statute may prevail over a later general one, applying generalia specialibus non derogant (Topic 16)
• Harmonise first. Courts first try to harmonise the two provisions before deciding which prevails (Topic 7)

4. Legal Fictions and Deeming Provisions

A legal fiction requires the court to treat as real something that is not, usually through the word 'deemed'. The legislature uses fictions to extend a provision to cases that would not otherwise fall within it, to remove doubt, or to give a word an artificial meaning.

Figure 2: How far a legal fiction extends

• Follow the fiction through. In East End Dwellings Co v Finsbury Borough Council (1952) Lord Asquith said that if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents that inevitably flow from it, and must not allow your imagination to boggle at its inevitable corollaries.
• Adopted in India. The Supreme Court applied this approach in State of Bombay v Pandurang Vinayak (1953)
• Confined to its purpose. In Bengal Immunity Co v State of Bihar (1955) the Court held that legal fictions are created for a definite purpose and must be limited to that purpose; they are not to be extended beyond it.
• Uses of 'deemed'. 'Deemed' may create a fiction, make conclusive what is otherwise uncertain, or include what is doubtful within a definition; the context shows which.

5. Frequently Asked Questions

What is a non obstante clause?

A non obstante clause is a phrase such as 'notwithstanding anything contained in this Act or any other law' that gives the provision in which it appears overriding effect over the provisions or laws mentioned, where there is a conflict. In Aswini Kumar Ghosh v Arabinda Bose (1952) the Supreme Court described it as appended to a section to give it overriding effect over the provisions referred to.

Which prevails when two statutes both have non obstante clauses?

The court first tries to harmonise them. If that is not possible, it considers the object of each Act. Ordinarily the later statute prevails, as held in Solidaire India v Fairgrowth Financial Services (2001), because the legislature enacted it with knowledge of the earlier law. A special statute may, however, prevail over a later general one.

How far does a legal fiction extend?

A legal fiction must be carried to its logical conclusion: as Lord Asquith said in East End Dwellings (1952), the court must imagine as real the consequences that inevitably flow from the imagined state of affairs. But the fiction is confined to the purpose for which it was created, as the Supreme Court held in Bengal Immunity (1955), and cannot be extended to other matters.

6. Related Topics

• Topic 12: Internal Aids to Interpretation. Provisos, explanations and definitions.
• Topic 16: Other Maxims of Interpretation. Generalia specialibus and later laws.