Non-Obstante & Force Majeure Clauses & Their Interpretation & Uses in India

Across both public and private law, the Indian legal system relies on certain mechanisms to manage disruption, inconsistency, and impossibility. Two key mechanisms are non-obstante clauses, which are used in statutes and contracts to give certain provisions an overriding effect in case of conflict, and force majeure clauses, which allow temporary suspension of contractual obligations during unforeseen events like pandemics, wars, or natural disasters. Though they emerge from different legal contexts, both enable the temporary suspension, modification, or prioritisation of obligations in exceptional circumstances.

Alongside these, the constitutional doctrine of eclipse which originally applied to pre-Constitutional laws rendered temporarily inoperative due to conflict with fundamental rights has found renewed relevance as a metaphor for how force majeure clauses work in contracts. Just as the constitutional doctrine of eclipse renders conflicting laws dormant but not void, force majeure clauses suspend contractual obligations without extinguishing them until normalcy is restored. Courts, especially during the COVID-19 pandemic, have drawn this comparison to explain how contractual duties may be suspended but not entirely cancelled. This article explores how Indian courts and legislatures have interpreted these doctrines over time and how they are now being used in today’s commercial world.

I.          Non-Obstante Clauses: Origins and Evolution

Non-obstante clauses, often introduced with the phrase “notwithstanding anything contained in…”, have become a staple in both Indian legislative and commercial drafting. These clauses are designed to give overriding effect to specific provisions, ensuring that they prevail over any conflicting statutory or contractual language. However, the courts have consistently clarified that this overriding effect is not absolute. Over time, Indian courts have developed a more careful approach to interpret non-obstante clauses, consistently holding that although these clauses are meant to override inconsistencies, they must be applied carefully and understood in terms of the context in which they appear.

The Supreme Court in Aswini Kumar Ghose v. Arabinda Bose[1], laid the foundation for this interpretive approach by holding that a non-obstante clause must be confined to the specific area of conflict they are intended to address and should not be interpreted broadly so as to nullify other provisions. This view was reiterated in ICICI Bank Ltd. v. Sidco Leathers Ltd[2], where the Supreme Court emphasised that a non-obstante clause cannot be read in isolation and must be interpreted in light of broader statutory purpose and context. Most recently, in Paschimanchal Vidyut Vitran Nigam Ltd. v. Raman Ispat Pvt. Ltd [3], the judiciary reaffirmed its approach, clarifying that non-obstante clauses cannot be interpreted as blanket overrides and must operate within the statutory framework, without undermining legislative intent.

Reflecting this careful judicial approach, modern legislatures have increasingly relied on non-obstante clauses to manage the growing complexity of statutory overlaps. These clauses are now frequently used in different areas of law such as insolvency, taxation laws etc where it is necessary to prioritise new statutory laws over pre-existing laws which may be inconsistent.

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 are now routinely included to resolve internal inconsistencies and ensure that certain provisions especially those related to indemnity, dispute resolution, limitation of liability, or termination prevail in case of conflict. In complex agreements such as joint ventures, shareholder agreements, or financial contracts, where multiple rights and obligations may overlap, non-obstante clauses serve to clarify which provisions take priority over others.

Typically introduced with the phrase “Notwithstanding anything to the contrary contained elsewhere in this Agreement…”, these clauses are meant to override conflicting terms within the same document. However, courts have repeatedly cautioned that using multiple non-obstante clauses without a clear hierarchy or conflict-resolution mechanism can lead to confusion and legal disputes. To avoid interpretational challenges, contracts should be carefully drafted especially when several interrelated documents are involved.

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 commercial deals involving multiple parties and interconnected documents like lending agreements, shareholder agreements, joint ventures or cross border transactions. 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. The challenge increases in large deals with multiple related documents such as side letters, investment agreements and governance related documents where non-obstante clauses are scattered across such documents without harmonisation or co-ordination. In these cases, courts are left to infer parties’ intent, often resulting in legal disputes, delays, and problems in enforcing the contract. The situation gets more complicated when the contracts are amended or novated later, without corresponding updates to the non-obstante provisions.

Courts have repeatedly warned against the risks of such careless drafting. In Paschimanchal Vidyut Vitran Nigam Ltd.(Supra), the Allahabad High Court held that such clauses must be interpreted narrowly and not as blanket overrides that could undermine basic principles such as natural justice. Courts also regularly apply the maxim “generalia specialibus non derogant” meaning that specific provisions override general ones. As a result, clauses that are more precisely worded and context specific are often upheld, even when both provisions use non-obstante language.

The key takeaway for drafting these clauses in any contract is that when multiple non-obstante clauses are used, the contract should include clear conflict-resolution mechanisms, such as an order of precedence clause or a master interpretation clause that applies across related documents. It is equally important to maintain internal consistency and avoid inserting standard non-obstante language without checking for overlaps. These steps are essential to ensure that contracts remain enforceable and reflect the parties’ commercial intent.

Which Clause Prevails? Judicial Treatment of Conflicting Non-Obstante Clauses in Contracts

When two or more non-obstante clauses coexist, either within the same agreement or across related documents, Indian courts have identified a set of interpretative principles to resolve such conflicts. The first is usually to analyse the underlying intent and the specific context in which each clause was drafted. In Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd[4], the Bombay High Court was faced with two arbitration clauses found in interconnected agreements, one providing for arbitration in London under English law, and the other for arbitration in India. The Court gave effect to the clause that was more specific and directly governed the performance in question, applying the maxim generalia specialibus non derogant i.e., specific provisions prevail over general ones

Another principle courts usually apply is that when two clauses within the same agreement are inconsistent and cannot be reconciled, the clause that appears later in the contract may prevail, as it likely reflects the final intention of the parties. This principle was reiterated in Apsara Buildtech Pvt. Ltd. v. Paramount Golf Foreste Buyers Association[5], where the Supreme Court held that in the absence of an express hierarchy clause, a subsequent provision may override an earlier one if it clearly indicates a departure in language or purpose.

These interpretational challenges highlight the importance of precise and careful contract drafting. Non-obstante clauses should be used selectively and not as routine boilerplate. Drafters must clearly establish a hierarchy of provisions within the contract, ideally through a clause which gives order of precedence to manage potential overlaps, especially in complex, multi-party, cross border transactions or transactions involving multiple documents. Where several interrelated documents are involved such as a shareholders’ agreement, joint venture agreement and accompanying investment, governance related documents, parties should consider incorporating a master interpretation clause that explicitly states which document will prevail in the event of a conflict. These measures are essential to reduce the legal ambiguity and ensuring that the parties’ true commercial intent is accurately captured and is enforceable.

Over the years, non-obstante clauses have evolved from simple override tools to key mechanisms for ensuring legal and contractual consistency. While they are critical in addressing overlaps or inconsistencies, their power is not unrestrained. Indian courts favour context-sensitive, harmonised interpretation and caution against sweeping applications that disturb contractual balance. As legal and commercial arrangements become increasingly complex, non-obstante clauses will continue to play a central role in ensuring clarity. However, to be effective, they must be used precisely, supported by thoughtful drafting and structural safeguards such as hierarchy clauses, master interpretation provisions, and consistent language across related documents.

II. Interplay of Eclipse Clauses and Force Majeure

The doctrine of eclipse, originally rooted in constitutional law, has gained renewed relevance in the interpretation of force majeure clauses in commercial contracts. Traditionally, the doctrine was used to describe the temporary dormancy of pre-Constitutional statutes that conflicted with fundamental rights under Article 13(1) of the Constitution of India. As clarified in landmark cases such as Keshavan Madhava Menon v. State of Bombay [6] and Bhikaji Narain Dhakras v. State of Madhya Pradesh[7], such laws are not void ab initio but merely rendered inoperative until the inconsistency is cured. This concept of temporary dormancy has proven to be a useful metaphor for understanding modern force majeure clauses in contracts, which similarly suspend obligations during uncontrollable and unforeseeable 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. These clauses often operate in a manner akin to eclipse clauses by pausing performance without permanently extinguishing obligations. The Delhi High Court in Airports Authority of India v. Delhi International Airport Ltd[8]. made this analogy explicit, observing that “a force majeure clause in a contract is generally an exception or an eclipse provision,” which suspends obligations only for as long as the force majeure condition persists. This analogy illustrates how constitutional doctrine can inform contractual reasoning, especially during periods of global disruption like the COVID-19 pandemic.

Indian courts, particularly during COVID-19, were called upon to test the strength and scope of force majeure clauses. In Energy Watchdog v. CERC[9], 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.

To clarify, a contract can be voided under Section 56 of the Contract Act, which makes agreements void if performance becomes impossible due to unforeseen and unavoidable events. While this statutory remedy reflects the doctrine of frustration, courts apply it carefully and only when the main purpose of the contract is wholly defeated. It is applicable even without explicit contractual terms and works as a limited fallback, when no force majeure clause exists and the unforeseen events disrupt the contract’s purpose. Relief under Section 56 of the Contract Act is naturally provided in very rare circumstances, as, often the circumstances may arise where one party has already discharged some or all of its obligations, leading to an injustice, as the contract is then treated as void.

Similarly, in Standard Retail Pvt. Ltd. v. G.S. Global Corp[10], 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[11], 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. They emphasised that these clauses should be applied in a way that respects the actual wording of the contract and commercial fairness. 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 carry critical lessons for commercial drafting. First, force majeure clauses must be clearly worded and comprehensive, anticipating a broad range of events from pandemics and cyberattacks to regulatory changes and supply chain disruptions. Often, wording to the effect of “or such other event beyond the control of a party that makes performance of its obligations impossible or illegal” can be added to benefit the party unable to perform. Second, drafters must define not only what qualifies as a force majeure event but also the consequences, whether obligations are suspended, modified, or terminated, and whether notice requirements or mitigation obligations apply. Third, contracts should consider “sunset provisions” that 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.

Ultimately, just as the doctrine of eclipse allows pre-Constitutional laws to revive once the constitutional conflict is removed, force majeure clauses enable contractual obligations to resume once the unforeseen event ends. This reflects a broader legal continuity recognised in the Indian legal system that performance may sometimes pause without ending it. The judiciary’s evolving approach reveals a commercial sensitivity, balancing party autonomy, business unpredictability, and practical realities. In today’s complex and interconnected economy, well-drafted force majeure clauses are no longer mere boilerplate; they are essential tools of risk management.

Conclusion

The doctrines of non-obstante clauses and force majeure, though ostensibly different, show how the Indian legal system deals with legal and commercial complexities. Both play an important role in bringing clarity and ensuring that contracts can be enforced during times of conflict, confusion, or disruption. Non-obstante clauses help prioritise different legal or contract terms when they conflict, while force majeure clauses give temporary relief from obligations when unforeseen events like natural disasters or pandemics make it difficult to perform the contract.

Indian courts have recognised that in today’s world, contracts and laws need to be both reliable and flexible. To meet this need, the courts have taken a practical approach when interpreting non-obstante and force majeure clauses, balancing the freedom of parties to make contracts with the overall purpose of the law and complex business challenges. As companies face increasing uncertainty from events like pandemics or political conflicts, it is more important than ever to draft these clauses with care. Poorly worded or vague clauses can lead to confusion, disputes, and delays. But when clearly and thoughtfully drafted, these clauses help protect deals, reduce legal problems, and keep contracts workable even in difficult times.

Disclaimer

This article has been written for the general interest of clients and professional colleagues and is subject to change. This article is not to be construed as any form of solicitation. It is not intended to be exhaustive or a substitute for legal advice. I cannot assume legal liability for any errors or omissions. Specific advice must be sought before taking any action pursuant to this article.

[1] (1952) 2 SCC 237
[2] AIR 2006 SC 2088
[3] CIVIL APPEAL NOS. 7976 OF 2019, Supreme Court
[4] 2015 SCC OnLine Bom 4515
[5] 2024 SCC OnLine SC 414
[6] AIR 1951 SC 128
[7] AIR 1955 SC 781
[8] O.M.P. (COMM) 186/2024
[9] 2017 SCC 80
[10] 2020 SCC OnLine Bom 783
[11] 2021 SCC OnLine Del 2379