In an unusually candid and institutionally significant address, Supreme Court Judge Justice Ujjal Bhuyan has reignited one of the most consequential debates in Indian commercial jurisprudence by observing that the Supreme Court’s 2024 decision in the Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd. (DAMEPL) case caused “the most extensive damage to arbitration in India.” Speaking at a lecture titled “Arbitration in India: Reform, Relevance & the Road Ahead”, organised by The Law Forum, Justice Bhuyan expressed concern that excessive judicial intervention in arbitral awards, coupled with subsequent policy decisions discouraging arbitration in government contracts, has undermined years of legislative reform aimed at transforming India into a preferred global arbitration destination. His remarks, though delivered in an academic forum rather than a courtroom, have acquired exceptional legal significance because they originate from a sitting judge of the Supreme Court and directly engage with the evolving relationship between judicial review and party autonomy under the Arbitration and Conciliation Act, 1996.
Justice Bhuyan’s observations centred upon the Supreme Court’s April 10, 2024 curative judgment in the Delhi Metro arbitration dispute. That decision, delivered by a three-judge Bench headed by the then Chief Justice of India D.Y. Chandrachud, set aside a high-value arbitral award in favour of Delhi Airport Metro Express Private Limited (DAMEPL) after concluding that the award suffered from patent illegality and that allowing it to stand would result in a grave miscarriage of justice. The arbitral award, involving liability running into several thousand crores of rupees, had previously survived scrutiny before the arbitral tribunal, challenges under Sections 34 and 37 of the Arbitration and Conciliation Act, proceedings under Article 136 before the Supreme Court and even a review petition. The Court nevertheless exercised its extraordinary curative jurisdiction to reopen the dispute and invalidate the award.
It was this extraordinary procedural journey that became the focal point of Justice Bhuyan’s criticism. According to him, the Delhi Metro judgment represented an “unprecedented move”, not because courts lack the power to exercise curative jurisdiction, but because that jurisdiction was employed to undertake what effectively amounted to a fresh merits review of an arbitral award after multiple layers of judicial scrutiny had already concluded. Justice Bhuyan observed that while the judgment itself cautioned against expanding judicial intervention in arbitration, the Court ultimately did precisely that by reopening factual appreciation and reassessing the arbitral tribunal’s conclusions during curative proceedings. In his view, the decision transformed curative jurisdiction into what effectively became a fifth round of challenge to the arbitral award, raising serious concerns regarding the finality that arbitration is designed to achieve.
The remarks are significant because they engage with one of the central philosophies underlying the Arbitration and Conciliation Act, 1996 minimal judicial interference. Inspired substantially by the UNCITRAL Model Law, the 1996 legislation consciously departed from the interventionist framework that characterised earlier arbitration law in India. Parliament sought to ensure that arbitral tribunals, rather than conventional courts, would become the primary forum for resolving commercial disputes. Judicial review was deliberately confined to narrowly defined statutory grounds under Section 34, such as patent illegality, jurisdictional error, violation of natural justice or conflict with public policy. Courts were repeatedly reminded that they were not appellate forums entitled to reassess evidence merely because another interpretation appeared possible.
This philosophy has been consistently reinforced through landmark Supreme Court precedents. In Associate Builders v. Delhi Development Authority (2015), the Court clarified that Section 34 does not permit reassessment of factual findings by arbitrators. Later, in Ssangyong Engineering & Construction Co. Ltd. v. NHAI (2019), the Court further narrowed the scope of judicial interference by holding that courts cannot substitute their own interpretation of contractual terms for that adopted by the arbitral tribunal unless the award falls within the narrowly defined statutory grounds. These decisions collectively established that arbitration succeeds only when judicial intervention remains exceptional rather than routine.
Justice Bhuyan’s criticism therefore extends beyond a single judgment. His larger concern is institutional. If arbitral awards remain vulnerable to repeated judicial scrutiny through successive statutory challenges, appeals, review petitions and eventually curative proceedings, the very commercial certainty that arbitration seeks to provide begins to erode. International investors generally choose arbitration because it promises speed, expertise, confidentiality and finality. Where disputes continue through multiple rounds of litigation over several years, arbitration risks becoming merely an additional procedural stage before eventual judicial determination rather than a genuine alternative dispute resolution mechanism.
Perhaps the most striking aspect of Justice Bhuyan’s address was his attempt to connect judicial developments with subsequent executive policy decisions. Referring to the Finance Ministry’s Office Memorandum dated 3 June 2024, he observed that the Delhi Metro judgment appeared to have triggered a broader governmental reassessment of arbitration involving public authorities. The Memorandum discouraged government departments and public sector undertakings from routinely incorporating arbitration clauses in contracts involving disputes exceeding ₹10 crore, suggesting mediation or conventional litigation as preferable alternatives in such cases. Justice Bhuyan described this as a sharp, sudden and controversial policy shift against arbitration, arguing that it contradicted years of governmental efforts aimed at promoting institutional arbitration in India.
According to Justice Bhuyan, the consequences did not end there. He pointed to subsequent policy decisions by entities such as Oil India Limited (OIL), Oil and Natural Gas Corporation (ONGC) and certain government departments that reportedly moved away from arbitration clauses in high-value contracts. These developments, he argued, collectively represent a departure from India’s declared aspiration of emerging as a global arbitration hub. Successive governments have repeatedly projected arbitration as an important component of India’s ease-of-doing-business framework. Legislative amendments in 2015, 2019 and 2021 progressively reduced judicial intervention, introduced strict timelines, strengthened institutional arbitration and attempted to improve enforcement of arbitral awards. Justice Bhuyan’s central argument is that inconsistent judicial approaches and policy reversals risk undoing these painstaking legislative reforms.
The lecture also engaged with another recent constitutional development the Constitution Bench decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd. Justice Bhuyan expressed reservations regarding the recognition of limited judicial powers to modify arbitral awards, cautioning that such developments may create additional opportunities for courts to intervene beyond the statutory framework originally contemplated by Parliament. He similarly voiced concern regarding proposals to establish Appellate Arbitral Tribunals, observing that creating yet another forum for reviewing arbitral awards may inadvertently increase rather than reduce judicial involvement. Instead of simplifying dispute resolution, additional appellate mechanisms could prolong litigation and undermine the objective of speedy commercial justice.
From a constitutional perspective, Justice Bhuyan’s observations raise an enduring institutional question concerning the balance between judicial supervision and arbitral autonomy. Courts unquestionably possess an essential role in protecting parties against fraudulent awards, jurisdictional excesses and violations of natural justice. Complete judicial abstinence would itself undermine confidence in arbitration. Equally, excessive judicial intervention transforms arbitration into ordinary litigation by another name. The challenge therefore lies in maintaining equilibrium between these competing objectives. Justice Bhuyan’s lecture does not advocate absolute immunity for arbitral awards; rather, it questions whether the current trajectory has gradually expanded judicial review beyond the legislative design of the 1996 Act.
His remarks also invite reflection upon the constitutional nature of curative jurisdiction itself. Curative petitions occupy a unique position within Indian constitutional jurisprudence. Conceived in Rupa Ashok Hurra v. Ashok Hurra (2002), curative jurisdiction was intended as an extraordinary constitutional safeguard available only in the rarest circumstances to prevent gross miscarriage of justice after dismissal of review petitions. By design, it was never intended to become another appellate stage for reconsidering factual findings. Justice Bhuyan’s criticism implicitly raises the question whether frequent or expansive reliance upon curative jurisdiction in commercial disputes may inadvertently weaken the finality essential to arbitration.
At a broader level, the lecture reflects a larger debate about India’s ambition to become an international commercial dispute resolution centre. Countries such as Singapore, United Kingdom, France and Switzerland have developed thriving arbitration ecosystems largely because commercial parties possess confidence that arbitral awards will ordinarily attain finality with minimal judicial interference. India has invested substantial legislative and institutional effort towards achieving a comparable position. Justice Bhuyan’s warning suggests that investor confidence ultimately depends not only upon statutory reform but equally upon judicial consistency and administrative policy. Arbitration-friendly legislation alone cannot produce an arbitration-friendly jurisdiction if parties remain uncertain regarding the enforceability and finality of arbitral awards.
Importantly, Justice Bhuyan’s remarks should not be understood as diminishing the authority of the Delhi Metro judgment itself. The 2024 decision remains binding law unless reconsidered by an appropriate Bench. Rather, the significance of the lecture lies in its contribution to an ongoing jurisprudential conversation regarding the future direction of arbitration law in India. Judicial discourse has always evolved through reasoned institutional debate, academic engagement and principled differences of opinion. In that sense, Justice Bhuyan’s address exemplifies a mature constitutional tradition in which important legal questions continue to be examined even after authoritative judgments have been delivered.
Ultimately, the lecture serves as a timely reminder that arbitration is not merely a procedural alternative to litigation but an economic institution central to commercial confidence, infrastructure development and cross-border investment. Every additional layer of judicial scrutiny, every uncertainty regarding enforcement and every policy reversal has consequences extending beyond individual disputes to India’s overall credibility as a destination for commercial investment. By questioning whether a system that permits repeated judicial reconsideration of arbitral awards can truly claim to be arbitration-friendly, Justice Ujjal Bhuyan has reopened a conversation that extends far beyond the Delhi Metro dispute. His observations compel policymakers, practitioners and constitutional courts alike to reconsider a fundamental question at the heart of modern commercial law: Can arbitration remain meaningful if finality itself becomes negotiable?
