DISSENTING OPINIONS PLAY A SIGNIFICANT ROLE in the evolution of law. Though they do not carry the force of law, dissents often preserve alternative interpretations that may gain traction over time. The Indian Supreme Court has, time and again, recognised the importance of dissenting opinions. The fundamental rights jurisprudence in India has witnessed several landmark dissents. These have pertinently shaped the law as it stands today.
In the realm of arbitration law, recently, a significant dissenting opinion was delivered by Justice K.V. Viswanathan in Gayatri Balasamy v. M/s ISG Nofasoft Technologies Ltd. (‘Gayatri’) (2025).
The Constitution Bench, of which Justice Viswanathan was a part, was called upon to adjudicate and determine, inter alia, whether under the Arbitration and Conciliation Act, 1996 (‘the Act’), the powers of a Court under Section 34 or Section 37 include the power to modify an arbitral award. If yes, what are its contours?
The Constitution Bench, by a 4:1 majority, speaking through Chief Justice Sanjiv Khanna held, inter alia, that the Court has a limited power to modify an arbitral award. In a nutshell it held: if the error in the award is serious, set it aside; if it can be cured, remand it to the Arbitral Tribunal under Section 34(4); if certain, modify it.
Justice K.V. Viswanathan, in his illustrative dissent, with which this author concurs on several fronts, has laid down that the Court has no power to modify an award.
In this piece, I endeavour to defend Justice Viswanathan’s dissenting opinion where tenable, while also undertaking a respectful and critical examination of the correctness of the majority judgment.
