Force majeure clauses are everywhere in Indian commercial contracts and almost universally toothless when actually invoked. The Supreme Court's 2017 decision in Energy Watchdog v. Central Electricity Regulatory Commission narrowed the doctrine substantially, and COVID-era rulings narrowed it further. The clauses most businesses sign would not survive contested invocation today.
For a force majeure invocation to succeed: the event must be objectively unforeseeable at the contract date; it must make performance impossible (not merely more expensive); it must be expressly covered by the contract's force majeure clause; and the affected party must have taken reasonable steps to mitigate. The Energy Watchdog case itself: Indonesian coal price hike was held NOT a force majeure event. Increased cost is not impossibility.
The Bombay High Court in Standard Retail v. G.S. Global (April 2020) refused force majeure relief in a steel-import dispute despite the pandemic — holding that the government lockdown order was not retrospective, the buyer's commercial inconvenience was not impossibility, and general hardship is not force majeure. The Delhi High Court in Halliburton v. Vedanta (May 2020) DID grant relief — but only because the contract specifically named 'epidemic' in its force majeure clause.
- 'Acts of God or any other event beyond reasonable control' — too vague.
- 'Including but not limited to...' with a generic list — courts read the open-ended phrase narrowly.
- 'Force majeure' without further definition — reliance on Section 56 ICA only, very limited scope.
- No notice requirement — invocation may be too late.
- No mitigation duty — invocation may be premature.
Specific enumeration: pandemic, epidemic, government-imposed lockdown, transportation blockade, war, civil disturbance, fire, earthquake, flood. Explicit notice requirement (typically 7-15 days). Explicit mitigation obligation. Explicit consequences (suspension vs termination vs renegotiation). Time limit for invocation (typically 60-90 days). The 2023 Bombay HC decision in MEP Infrastructure noted that vague clauses are interpreted contra proferentem against the party invoking them.
Six clause failure patterns that kill force majeure invocations
Patterns observed across post-COVID Indian commercial litigation. A clause with any two of these failures rarely survives contested invocation in 2026.
When the force majeure clause fails or doesn't exist, parties fall back on Section 56 of the Indian Contract Act 1872 — the doctrine of frustration. Performance must be impossible or unlawful due to a supervening event. Threshold higher than a well-drafted force majeure clause. Result: the contract becomes void from the event date under Section 56 second paragraph. Energy Watchdog effectively said Section 56 won't apply where the contract remains performable, just more expensive.
Force majeure invocation in India is far more limited than commercial parties assume. A well-drafted clause with specific enumeration, notice, mitigation, and consequences will survive most challenges. A boilerplate clause won't. Post-COVID, courts are particularly strict — invoking force majeure for genuine impossibility works; invoking it because performance has become commercially undesirable does not.