Non-obstante clause-
Many statutes use the terms ‘notwithstanding anything’. This is famously known as non obstante clause. It is used in the beginning of the provision and indicates the overriding effect of the provision over others. [It is also used in between the provision like, sec 78 of IPC which has similar impact but they are not frequent. A control F search indicates that in IPC it is used three times]. In the Constitution of India this term is used more than hundred times. In the provisions of citizenship, article 31A, article 136, article 226, article 256, article 368 etc. Non-obstante clauses have the tendency of providing additional power to the authorities in comparison to other provisions. The draftsman had primarily in mind those Provisions which stood in the way of the provision containing non obstante clause.
Article 31A deals with “Saving of laws providing for acquisition of estates.” clause (1) says “Notwithstanding anything contained in article 13…”. This means in case of any conflict between article 13 and 31A, article 31A will prevail. Similarly article 35 deals with “Legislation to give effect to the provisions of this Part.” It states that “Notwithstanding anything in this Constitution,...” The purpose of this provision is to make it clear that in case of any inconsistency between article 35 and any provision of the Constitution, the priority should be given to article 35. Article 136 makes provision for “Special leave to appeal by the Supreme Court.” Clause (1) states “Notwithstanding anything in this Chapter,...”. This conveys that in case any provision in this chapter (not the whole constitution) comes in the way of article 136, later will prevail. Article 368 provides for the “Power of Parliament to amend the Constitution and procedure therefore.” Clause (1) says that “Notwithstanding anything in this Constitution,...”. Article 368 will prevail over other provisions of the Constitution. But one sd not make any sweeping generaisation as if this clause trumps all other clause.
Table -overriding effect and limitation
Lesson from the table
This table indicates that the non obstante clause makes us understand the intention of our forefathers in the constituent assembly. The judiciary should interpret keeping in mind this internal aid of non obstante clause. But we should not rush to any conclusion that non-obstante clause makes it all powerful. The non obstante clause is not a free elephant without a hook. It is subject to principles of law (like separation of power, federal principle, rule of law, constitutionalism, sovereignty etc) and basic rules of interpretation. The intention of Indian Parliament is different from those of the UK Parliament because in the UK the Parliament is sovereign and there is no written constitution while in India the Parliament is not sovereign. It is subject to the Constitution of India. This is the main reason why the Supreme Court has introduced the doctrine of basic structure theory while interpreting article 368, though it begins with “notwithstanding anything in the Constitution.” The rule of interpretation suggests that the Court ought to make a harmonious construction. It should be careful that the alleged inconsistency is real and not imaginary. An additional condition is not necessarily an inconsistency. Chief Information Commissioner v. High Court of Gujarat [2020 (4) SCC 702] presents this with clarity which is discussed below.
Limitation of non obstante clause : Overriding but not repealing
What is the scope of the words “notwithstanding anything”. It is well known that a non obstante clause has overriding effect over other provisions mentioned in the non obstante clause. It may override that provision or it may override other provisions or it may override the chapter or may have an overriding effect over the whole enactment. Does it mean the non obstante clause neutralises the effect of other provisions of law or does it mean overriding effect in case of any inconsistency.
In the matter of Chief Information Commissioner v. High Court of Gujarat [2020 (4) SCC 702] the issue was interpretation of Right to Information Act, 2005 vis a vis the HC (Gujrat) rules. The HC (Gujrat) rules provided that any third party information can be obtained under an affidavit narrating the reason why the information is required.On the other hand, the RTI Act does not require any affidavit and reason. The RTI Act contains a non obstante clause. The argument was that the non obstante clause overrides other laws. Therefore, if the information is sought under RTI Act, the provision of RTI Act will prevail over the HC (Gujrat) rules. As RTI Act does not require any reason for an information, any other law like HC (Gujrat) rules cannot require it. It is an inconsistency and non obstante clause is meant to override any other law. However, the full bench of the Supreme Court refused to accept this argument. It has made a distinction between an inconsistent provision and an additional requirement as under:
The non-obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and Orders framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause, unless there is clear inconsistency between the two legislations.
In other words the Court held that there is no inconsistency. The HC (Gujrat) rules do not prohibit or deny information. It provides additional conditions. An additional condition cannot be termed as inconsistency between the two laws.
The full bench proceeded with the similar logic as under:
Section 22 of the RTI Act lays down that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than RTI Act. Learned Senior counsel for the appellant has submitted that since the requirement under Rule 151 of the Gujarat High Court Rules of filing an affidavit stating the grounds for seeking the information is directly contrary to Section 6(2) of the RTI Act and there is direct inconsistency between the provisions of the RTI Act and the Gujarat High Court Rules and in the event of conflict between the provisions of the RTI Act and any other law made by the Parliament or a State Legislature or any other authority, the RTI Act must prevail.
Comments on this case
Non obstante clauses do not have a repealing effect though they have an overriding effect. The judgement may not be in tune with the requirement of transparency in judicial governance but the modification in law cannot be made by judicial interpretation. It may amount to judicial legislation which should be resorted to only if it is essential. Just because something is good for democracy does not mean the judiciary should do it. The Parliament has to make necessary amendments in the light of this judgement so that the common mass is not required to give reasons and devoid of information in the Courts. This interpretation may be used by other wings of State to frustrate the purpose of the RTI Act, 2005.
One aspect of the judgement needs to be noticed by the judicial officers. It provides a conclusion. Many judges write a conclusion but many do not write and they only provide operative part of the judgement, of course after discussion. A conclusion let the readers, the lawyers and the judicial officers understand the take home from the pronouncements. It restricts further interpretation. If conclusion is not given, we draw it from the whole judgement and in that process we draw other conclusion also. This creates confusion and may lead to further litigation. All judicial decisions should contain a conclusion and the law laid down. It will help reducing inconsistency in judicial process. The code of conduct of judges or rules regarding judgement writing may include these things. In certain judgements the HC have not mentioned the facts.
Minimum content of a judicial decision : Sangeeta Agrawal case
What should be the minimum content of a judgement on section 482 of CrPC 1973? Is it necessary to narrate facts in brief and to examine facts? Is it not enough if a decision states the laws laid down through various precedents and then decides the case. Sangeeta Agrawal v. State of Uttar Pradesh [MANU 2018 SC 1377] is a case where charges were framed by sessions court under sections 498A, 304B of the Indian Penal Code, 1860 and section 3/4 of the Dowry Prohibition Act, 1961. The charges were challenged in the High Court with the prayer to quash it under section 482 of CrPC 1973 which the High Court refused to do. The Supreme Court quashed the order of the High Court making following observation:
"On perusal of the impugned order, we find that the Single Judge has only quoted the principles of law laid down by this Court in several decisions relating to powers of the High Court to interfere in the cases filed under Section 482 of the Code from Para 2 to the concluding para but has failed to even refer to the facts of the case with a view to appreciate the factual controversy, such as, what is the nature of the complaint/FIR filed against the appellants, the allegations on which it is filed, who filed it, the grounds on which the complaint/FIR/proceedings is challenged by the appellants, why such grounds are not made out under Section 482 of the Code etc. We are, therefore, at a loss to know the factual matrix of the case much less to appreciate except to read the legal principles laid down by this Court in several decisions." The Supreme court laid down the minimum contour of a judicial decision as under: "In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this Court and then recorded his finding as to on what basis and reasons, a case is made out for any interference or not. In our view, this is the least that is required in every order to support the conclusion reached for disposal of the case. It enables the Higher Court to examine the question as to whether the reasoning given by the Court below is factually and legally sustainable." Judgement writing is one of the big problems of the judicial process in India. It has two aspects. Form of the judgement and content of the judgement. There is no uniformity in writing judgements. Some judges write with heads and sub heads. Some begin with issues while others begin with facts. Some write philosophical introductory notes. As it is a subjective matter it is unwise to suggest any set pattern, form or the content of a judgement. But certain things are too basic to explain. Facts and all significant arguments of both sides should be recorded because they make everyone aware of the case and precedents. Issues should be mentioned preferably in the beginning because issues determine the relevance of judgement. Major heads and subheads help like issues, facts, arguments, principles of law, decision, summary, operative part etc makes the judgement more readable, organised and meaningful. A few orders of the Supreme Court on section 304B are not well reasoned orders, for example Archana Mishra v. State of U.P, 2017(4) RCR (CR.)736, Sarada Prasanna Dalai v. Inspector General of Police, Crime Branch, Odisha, (2017) 5 SCC 381. and Ananda Bapu Punde v. Balasaheb Anna Koli, (2017) 4 SCC 642. In the same case during various hearings on various dates reasons are given but the final hearing order does not contain the reasons. Many times it is difficult to discover reasons of acquittal, conviction, or reduction of punishment etc. The judiciary needs to improve its judgement writings. To begin with all pronouncements must contain a conclusion.
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