Difference between ‘non-obstante’ clause and ‘subject to’ other provisions

Difference between: (a) ‘non-obstante’ clause and (b) ‘subject to’ other provisions

The effect of any provision containing non-obstante clause and the ambit and scope of a provision which has been made ‘subject to’ some other provision or enactment and distinction between the two, is well established. When a provision of any enactment is made ‘subject to’ some other provision, it conveys the idea that such provision shall yield to another provision to which it is made subject. Whereas a non-obstante clause is a legislative device 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 the operation and effect of all contrary provisions, to which such non-obstante provision has been given over-riding effect.[1] The Hon’ble Supreme Court in Chandavarkar S.R. Rao v. Ashalata S. Guram[2] stated- “A clause beginning with the expression ‘notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract’ is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned in the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment.”

[1]Jawahar Sons Enterprises Pvt. Ltd. vs. State and Ors., 2002(2)WLN565 at para 17

[2] 1986 4 SCC 447

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    On the first blush, the above write-up is noted to sum up fairly the difference between the concepts of, – ‘non-obstinate” and ”subject to, ‘made use of in legislative enactments.
    And, if diligently searched for, one will also find copious literature dealing with similar but subtle differences between, –
    ‘interpretation’ and ‘construction’;
    interpretation of provisions, – of ‘constitutional law” ( the “basic charter’)’ and
    of “stautes’, of both central and state governments (the so called legislative enactments).

    Be that as it may, in own perspective, there is yet another area of difference between interpretation / construction of ‘’common law principles’ on one hand and of legislative enactments on the other.

    Any eminent professional in law practice having independent thoughts and incisive viewpoints is welcome to explore , spare and share !

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