Provisos, exceptions, explanations, illustrations, saving and non-obstante clauses, schedules

1. Provisos

A proviso is introduced by “Provided that” and carves something out of the main enactment. The classic statement is in CIT v. Indo Mercantile Bank Ltd., 1959 INSC 16, AIR 1959 SC 713: the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.

Rules that follow:

• A proviso is read with the main provision and in relation to the subject matter of that provision, not as a general rule for the whole Act.
• It does not ordinarily enlarge the main enactment or create a right not found there.
• Where the main provision is clear, the proviso cannot be used to cut it down beyond its own terms; where the main provision is ambiguous, the proviso may throw light on it.
• Sometimes, despite its form, a proviso is a substantive provision in its own right; the form does not conclude the question.

S. Sundaram Pillai v. V.R. Pattabiraman, 1985 INSC 13, (1985) 1 SCC 591, summarised four uses of a proviso: to qualify or except something from the main enactment; to entail mandatory conditions to be fulfilled for the main enactment to work; to act as an independent provision where it is so framed; and to serve as an explanation or addendum to the main provision.

2. Exceptions

An exception, like a proviso, takes out of the main rule something that would otherwise fall within it. The best-known exceptions are in criminal law: Chapter III (General Exceptions) of the Bharatiya Nyaya Sanhita, 2023, and the exceptions attached to particular offences such as those to murder.

• An exception presupposes that the case would fall within the main rule but for the exception; it cannot be used to widen the main rule.
• The burden of bringing a case within an exception lies on the person who claims it. Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (section 105 of the Evidence Act, 1872) places on the accused the burden of proving circumstances bringing the case within the General Exceptions or any special exception or proviso, and the court presumes their absence.
• An exception in a taxing or exemption notification is read in the context of the main provision; in Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, 1990 INSC 164, (1990) 3 SCC 447, the word “coated paper” in an exception was read with its companions and confined to industrial paper (see the note on noscitur a sociis).

3. Explanations

An explanation is added to clarify the meaning of the main provision, to remove doubt, or to include or exclude something from its scope. According to Sundaram Pillai, an explanation may explain the meaning of the Act where there is obscurity; fill a gap; clarify so as to make it consistent with the object of the Act; and suppress a mischief. But it cannot take away a statutory right, and it does not ordinarily enlarge the main section beyond its scope.

An explanation can, however, be drafted to extend the meaning, and where the legislature uses deeming words (“shall be deemed to include”) the extension is given effect.

4. Illustrations

Illustrations appear chiefly in older codes: the Bharatiya Nyaya Sanhita, the Bharatiya Sakshya Adhiniyam and the Transfer of Property Act. They show how the section applies to facts. The rule is that illustrations are of relevance and value and should be accepted if possible; but they do not modify the language of the section, and cannot curtail or expand it. Where an illustration is repugnant to the section, the section prevails: Jumma Masjid, Mercara v. Kodimaniandra Deviah, 1962 INSC 3, AIR 1962 SC 847, on an illustration to section 43 of the Transfer of Property Act, 1882.

In Shambu Nath Mehra v. State of Ajmer, 1956 INSC 15, AIR 1956 SC 404, the Court read illustration (b) to section 106 of the Evidence Act (railway ticket) with the section and held that the section does not relieve the prosecution of the burden of proving its case; it applies only to facts pre-eminently or exceptionally within the knowledge of the accused. The same provision and illustration are now section 109 of the Bharatiya Sakshya Adhiniyam, 2023.

5. Saving clauses

A saving clause preserves something from the operation of the enactment: existing rights, pending proceedings, things already done, or the operation of another law. It usually appears in a repealing provision, to preserve what was done under the old Act. Section 6 of the General Clauses Act, 1897 is a general saving clause for all Central repeals; particular Acts carry their own, such as section 536 of the Income-tax Act, 2025 and section 97 of the Food Safety and Standards Act, 2006.

• A saving clause is construed to preserve only what it names; it does not create new rights.
• Where the saving clause and the main enactment conflict, the main enactment prevails, except as far as the saving is clear.
• A saving clause differs from a proviso: a proviso cuts down the main enactment; a saving clause preserves something outside it from being affected.

6. Non-obstante clauses

A non-obstante clause begins “Notwithstanding anything contained in …” and gives the provision overriding effect over the provisions or laws it mentions, in case of conflict. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, 1986 INSC 199, (1986) 4 SCC 447, the Court explained that the clause is used to give the enacting part an overriding effect over the provisions referred to; that it is appended to a section to avoid the operation of other provisions which might otherwise come in the way; and that the enacting part must still be read first to see what it covers.

• The clause operates only where there is a real conflict. If the two provisions can be read together, the non-obstante clause is not called upon.
• It is not always co-extensive with the enacting part; the enacting part determines the scope (Aswini Kumar Ghosh v. Arabinda Bose, 1952 INSC 49, AIR 1952 SC 369).
• Where two statutes each have a non-obstante clause, the court looks at the object and the dates; ordinarily the later special Act prevails: Solidaire India Ltd. v. Fairgrowth Financial Services Ltd., 2001 INSC 76, (2001) 3 SCC 71, preferring the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 over the earlier Sick Industrial Companies (Special Provisions) Act, 1985.

7. Schedules

Schedules are attached at the end of an Act and are part of it. They contain detail that would clutter the sections: lists of enactments repealed, forms, rates, entries, tables. They are read with the sections that refer to them. Where a schedule and a section are in clear conflict, the section prevails, but every effort is made to reconcile them. In Aphali Pharmaceuticals Ltd. v. State of Maharashtra, 1989 INSC 282, (1989) 4 SCC 378, the Court construed an Explanation added to the Schedule of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 together with the Schedule's entries in deciding whether an Ayurvedic preparation was dutiable.

How this is examined

For the 10-mark non-obstante and saving question: define each, give its function, the rules (Chandavarkar, Aswini Kumar Ghosh, Solidaire; section 6 of the General Clauses Act as the general saving clause), and close with the contrast between them. For the 6-mark notes: proviso (Indo Mercantile, Sundaram Pillai), exception (burden under section 108 of the Sakshya Adhiniyam), explanation (Sundaram Pillai), illustration (Jumma Masjid).