Across both public and private law, the Indian legal system uses certain mechanisms to manage disruption, inconsistency, and impossibility. Non-obstante clauses, give certain provisions overriding effect in case of conflict, while force majeure clauses allow temporary suspension of contractual obligations during unforeseen events like pandemics, wars, or natural disasters. Though arising from different legal contexts, both enable temporary suspension, modification, or prioritisation of obligations in exceptional circumstances.
This article explores how Indian courts and legislatures interpret these doctrines and their use in today’s commercial world.
Traditionally introduced with the phrase “notwithstanding anything contained in…”, non-obstante clauses have become a staple in legislative and contractual drafting, conferring certain provisions with an overriding effect over conflicting statutory or contractual language. However, Indian courts have clarified, in the context of statutes, that this overriding power is not absolute and must be applied carefully, in the specific context for which it is intended.
In Aswini Kumar Ghose v. Arabinda Bose , the Supreme Court (“SC”) laid the foundation for this approach by holding that such clauses should be confined to the conflicts they are intended to address and not be interpreted broadly. In ICICI Bank Ltd. v. Sidco Leathers Ltd the SC reiterated that they cannot be read in isolation but must align with the statute’s broader purpose. Most recently, Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd reaffirmed that they cannot act as blanket overrides and must operate within the statutory framework, without undermining legislative intent.
Commercial Usage and Contractual Interpretation
Although non-obstante clauses were traditionally used in statutory drafting, their application has significantly expanded into commercial contracts. These clauses help to resolve internal inconsistencies, ensuring provisions, especially those related to indemnity, dispute resolution, liability limitation, or termination prevail, when interpretive conflicts arise.
Typically beginning with “Notwithstanding anything to the contrary…”, these clauses override conflicting terms within the same document. While these clauses help reduce confusion, using too many non-obstante clauses or applying them inconsistently within the same contract can cause more uncertainty and lead to legal disputes. This issue is especially common in complex deals involving multiple parties and interconnected documents. In such situations, different agreements may each contain multiple non-obstante clauses across documents, and if there’s no clear rule about which one should take priority, it can become difficult to figure out what the parties intended, leading to disputes and delays. The situation gets more complicated when the contracts are amended or novated later, without corresponding updates to the non-obstante provisions.
Courts, including in Paschimanchal Vidyut Vitran Nigam Ltd. (supra), have held that such clauses must be interpreted narrowly and not as blanket overrides that undermine the intention of the parties. They often apply the maxim generalia specialibus non derogant, meaning that specific provisions override general ones, and tend to uphold clauses that are precise and context specific.
The key takeaway is that when multiple non-obstante clauses exist, contracts should include an order of precedence or master interpretation clause, maintain internal consistency, and avoid inserting standard non-obstante language without checking for overlaps, to ensure enforceability and reflect the parties’ intent.
Which clause prevails? Judicial treatment of conflicting non-obstante clauses
When multiple non-obstante clauses conflict, courts generally apply two key principles. First, specific provisions prevail over general ones, as seen in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd., where conflicting arbitration clauses were resolved in favour of the clause more directly governing the performance in question. Second, in the absence of an express hierarchy clause, a later clause may override an earlier one if it reflects a change in intent, as held in Apsara Buildtech Pvt. Ltd. v. Paramount Golf Foreste Buyers Association. These principles highlight the importance of precise drafting, establishing clear hierarchy provisions, and using coordinated interpretation clauses, particularly in complex multi-party or cross-border transactions. Over time, such clauses have evolved from simple overrides to essential tools for contractual clarity, but their effectiveness depends on context-sensitive interpretation, structural safeguards, and consistent drafting across related documents.
The doctrine of eclipse, originally rooted in constitutional law, describes how pre-Constitutional statutes conflicting with fundamental rights under Article 13(1) of the Indian Constitution are not void but dormant until the inconsistency is removed (Keshavan Madhava Menon; Bhikaji Narain Dhakras). This concept is analogous to force majeure in contracts, which suspends rather than extinguishes obligations during unforeseen events.
Force majeure clauses, now central to most commercial agreements, are designed to excuse performance temporarily when unforeseen events such as natural disasters, war, strikes, pandemics, or government action make it impossible or impracticable for parties to fulfil their contractual duties. The Delhi High Court in Airports Authority of India v. Delhi International Airport Ltd explicitly likened force majeure to an eclipse provision, suspending obligations only while the event persists.
Judicial approach during COVID-19
In Energy Watchdog v. CERC, the Supreme Court clarified that if a contract includes a force majeure clause, parties must rely on it rather than fall back on Section 56 of the Indian Contract Act, 1872 (“Contract Act”), which deals with frustration. The Court drew a sharp distinction between a temporary suspension (akin to eclipse) and complete discharge of obligations, emphasizing that inconvenience or rising costs do not constitute force majeure unless the clause expressly says so.
In Standard Retail Pvt. Ltd. v. G.S. Global Corp, the Bombay High Court held that government imposed lockdowns may qualify as force majeure only if the contract specifically includes such events, otherwise, performance is not automatically excused.
During the pandemic, courts examined a range of commercial disputes to determine whether force majeure could be invoked. In Halliburton Offshore Services Inc. v. Vedanta Ltd, the Delhi High Court held that financial distress or commercial difficulty alone cannot justify invoking force majeure unless such grounds are clearly covered by the clause. Courts were careful not to let parties misuse force majeure clauses as an excuse to avoid their obligations. Importantly, the courts also clarified that force majeure clauses usually do not terminate the contract unless the clause clearly says so. Instead, they only suspend the obligations for a temporary period, similar to how the doctrine of eclipse works.
These rulings offer key lessons for commercial drafting. Force majeure clauses should be clearly worded and comprehensive, covering events such as pandemics, cyberattacks, regulatory changes with a general language to cover events beyond the parties’ control. They must define what qualifies as force majeure, its consequences, whether suspension, modification, or termination and any notice or mitigation requirements. Where relevant, “sunset provisions” should specify when prolonged force majeure entitles either party to exit the agreement. Without such clarity, parties risk disputes over interpretation, which can delay enforcement or even undermine the commercial purpose of the contract.
The evolving judicial approach to non-obstante and force majeure clauses highlights a common takeaway: clarity and precision in drafting are of prime importance. As business uncertainties become more frequent, these clauses should be tailored to the transaction, harmonised across related documents, and supported by clear conflict-resolution mechanisms. Thoughtful drafting not only minimises disputes but also ensures that agreements remain workable and enforceable when unforeseen events arise.
About the authors: Siddhi Ghatlia is a Partner and Palak Shah is an Associate at ALMT Legal.
Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.
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