Non-obstante clause : Ubiquitous in society

   A door that is closed for a class of people

Non-obstante clause : Ubiquitous in society

Non-obstante clause is a phrase used in legislative drafting and can be identified by the use of the word "notwithstanding" in a statute or an act. It basically gives an overriding effect to a law or a provision to the absolute exclusion of anything contrary or otherwise mentioned elsewhere. Thereby it creates a hierarchy amongst the various organs and machineries of the government working simultaneously at their respective places  which is a requirement for proper functioning of the various government machineries.

Now, not going by the most literal interpretation of the word the way and the purpose for which it is used in statutes if we instead go into the inner current of the term it carries a connotation of dominance of a particular group or "class" to the complete exclusion of another co-existing in the same arena. This essence of the "non obstante" or "notwithstanding" clause I feel could be visibly and palpably felt in common parlance as well. If we look around and minutely observe our society we will come across numerous instances of it. A glaring example could be of domination of rich persons resulting in absolute prejudice of poor section of the society. Another citation could be of preferential treatment accorded to a person on account of their age, race, caste, creed, gender or because of any other such reason amounting to total exclusion of another within the social hierarchy of the society. An example may also be extracted from corporate houses where higher management personnel run roughshod over petty workers of the organisation as a matter of common practice, popularly marked by this clichéd phrase, “the boss is always right”.

Although our Constitution expressly confers on us “The Right to Equality” but social reality is still a far cry from such conferment. So, with not much effort we can find and quote manifold cases where overriding rights are bestowed on a particular class of people but, unlike our Constitution, they are not based on any rationale or a well-founded claim. 

Moreover, it is even more unfortunate that unlike the Constitution and/or interpretation of statutes in common parlance we have seldom felt a need to develop, recognize and most importantly practise any doctrine, rule or custom which would come to substantial dilution of these draconian and essentially discriminative practices. Consequently, the clause is so well entrenched and pervasive that by now it has become an inalienable and inevitable part of our society or let me better say the very trait of it.

Despite all the woes, I can see a very gradual change in our societal set-up. I can see a feeble and flickering light emerging from very behind the darkness and I hope to see my optimism turning into reality someday !

     A light emerging from behind the darkness !

©Both the text and photographs are protected works of the author Bibhuti Bhushan Mishra. They can not be published, reproduced, adapted or otherwise dealt with without the prior permission of the author.