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.
Power to modify, legislative intent and casus omissus
The Arbitration Act of 1940 expressly provided the Court, under Section 15 therein, with the power to modify an award. However, the Act of 1996, based on the UNCITRAL Model Law and Rules, intended to minimize the role of the Courts in the arbitral process. This is further buttressed, in no uncertain terms, by Section 5 of the Act. Section 5 expressly provides that no judicial authority shall intervene ‘except where so provided in Part-I’.
The majority in Gayatri held that the Court has a limited power to modify an arbitral award. In that, it holds that the silence in the Act cannot be construed as a complete prohibition. Justice Viswanathan, in his dissent, very rightly rules to the contrary. His dissent in this regard can be defended on several fronts:
Section 13(5) and Section 16(5) proscribe any intervention by the Courts, until culmination of the arbitral proceedings. This highlights the legislative intent that judicial intervention shall be postponed till the conclusion of the arbitral proceedings, even in the case of a biased arbitrator.
Absence of express powers of modification in the Act, as it existed in the 1940 Act, also points to the legislative intent.
Additionally, Section 28 of the Indian Contract Act enables parties to voluntarily step out of the process of normal legal proceedings and have their disputes resolved by arbitration.
Section 33 provides for the parties and the arbitrator to carry out repairs to the award in the manner set out therein. Hence, when read with Section 34(4), the power to modify is vested in the Arbitral Tribunal itself.
The 7-judge bench in the Re, Interplay judgement (2023), holds that the negative facet of Section 5 restricts judicial authorities from intervening in arbitral proceedings in situations where the tribunal has been bestowed with exclusive jurisdiction. Party autonomy, amongst others, is a hallmark of arbitration. Hence, parties cannot be allowed to cry afoul when the agreed mode of dispute resolution does not suit their needs. Furthermore, in the interest of arbitration, the Supreme Court in Bhaven Construction (2021) rightly curtailed the scope of judicial interference even through writ jurisdiction.
Under the Code of Civil Procedure, an Appellate Court, under the normal judicial process, has powers co-extensive with the original court. Moreover, the Appellate Court has the power to pass any decree and make any order which ought to have been passed. However, this power of wide amplitude is not available to a court under Section 34 as held in Dyna Technologies (2019).
Dr. T.K. Viswanathan’s Expert Committee Report recommended legislative changes to permit modification of the award. However, the Parliament in its wisdom has not yet chosen to incorporate them
It becomes pertinent to note that according to both the majority and dissenting opinion, there exists a distinction between ‘setting aside’ an award and ‘modifying’ an award. The former annuls the award while the latter alters it. Interestingly, the majority recognises that for practical purposes, partially setting aside an award amounts to modifying the award. Hence, the majority rules that a limited power of modification can be located in Section 34.
Justice Viswanathan in his dissent rightly holds that both, the power to set aside and the power to modify, operate in separate spheres, and are not of the same genus. This argument is strengthened by referring to the English Arbitration Act, 1996 and the Singapore Arbitration Act, 2001 which provide for the power to vary and the power to set aside as two distinct orders that a court can pass.
Justice Viswanathan places reliance upon the words “set aside”, “only if” and “recourse” appearing in Section 34 to demonstrate that an arbitral award may be set aside “only if” the party establishes the grounds set out therein. The majority, however, seeks to extrapolate a distinct power by implication, arguing that while the contours for setting aside an award are indeed provided in Section 34, this does not negate the inherent powers of the Court to modify the award. This argument, however, is undermined by Section 5 of the Act.
It is no longer res integra that where there is no casus omissus, the court cannot interpret a statute so as to create one (See Delhi Financial Corporation (2004). Moreover, where the language is plain and clear, the statute has to be interpreted accordingly. However, where casus omissus does really occur, a case must be disposed of according to the law as it existed before such statute. This is inapplicable in the instant context by virtue of the express mandate contained, inter alia, in Section 5 of the Act. Maxwell on Interpretation of Statutes (12th Edn.) also holds that omissions are not to be readily inferred in a statute.
Justice Viswanathan acknowledges that only a legislative sanction can empower the Court to modify or vary the award. This is also in consonance with the principles laid down recently by another Constitution Bench in Supriyo (2023).
Inherent and implied powers
The majority in Gayatri ruled that the Court can modify an award, notwithstanding Sections 33 and 34(4), due to the inherent powers and implied powers of the Court. However, this ought to be done only in cases of absolute certainty.
Per contra, referring to the prohibition of invoking the inherent powers of the Court to modify an award, Justice Viswanathan rightly relies upon Manohar Lal Chopra (1961) to hold that the inherent powers under Section 151 of the Code of Civil Procedure cannot, in any way, be in conflict with what has been expressly provided for by the legislature.
By extending this principle of law, Section 5, which begins with a non-obstante clause, clearly prevents the invocation of the inherent powers of the Court. By relying upon the case of Savitri (1985), Justice Viswanathan puts forth the point that the doctrine of implied powers is invoked only to effectuate the final power. Hence, since there is no impediment to exercise the final power under Section 34, the doctrine of implied powers cannot be invoked by a Court to modify an award.
Severability of awards
Both the opinions agree that “invalid” portions of the award can be severed vide Section 34(2)(a)(iv) of the Act. In addition to this, the majority reasons that the greater power of setting aside includes the lesser power of setting aside in part. While Justice Viswanathan provides similar reasoning and opines that the power to set aside will include the power to partially set aside and sever the portions of the award which fall foul of Section 34, provided that it is capable of being severed without affecting the other parts of the award.
Correction of clerical, computational and typographical errors etc.
On the issue of computation, clerical, typographical errors etc., the author does not, with respect, agree with the majority and dissenting opinion. According to the majority, the Court can correct any clerical, computational and typographical errors which appear to be erroneous on the face of the record. Justice Viswanathan also holds that the Court can invoke the power and correct such errors without modifying, altering or adding to the original award.
In Hakeem (2021), it was held that courts could not modify an award. Courts could either set it aside or remand the case back to the tribunal. A literal interpretation in this manner, it was argued, was causing hardship to the parties. Justice Viswanathan, while rightly holding that Hakeem is not per incurium, creates a limited exception to the principle of finality of arbitral awards under Section 35. The author would submit, with respect, that this too runs contrary to the principle enshrined under Section 5.
Justice Viswanathan rebuffs the plea of hardship caused to the parties by a strict interpretation, emphasising that through their contractual agreement, the parties have voluntarily and consciously ousted themselves from the jurisdiction of the conventional judicial process. Moreover, if the arbitral award is set aside, that in and of itself does not affect the continued validity and force of the arbitration agreement, unless the agreement itself is held to be void. Hence, as held in McDermott International (2006), the Court can only quash the award, leaving the parties free to begin the arbitration again if they so desire.
Safety valve under Section 34(4)
Both the majority and dissenting opinions appear to agree on the applicability and purpose of the ‘safety valve’ under Section 34(4) of the Act—namely, that the power to remit a matter under this provision may be exercised to allow the arbitral tribunal to cure curable defects in the award.
The majority holds that the Court has the power to modify post-award interest in certain contingencies. But here again, Justice Viswanathan opines that the correct course of action to be adopted is to remit the matter back to the Tribunal.
Section 34(4) also demonstrates the acutely circumscribed nature of the power in the Section 34 Court. Moreover, both hold Kinnari Mullick (2017) to be bad law insofar as it holds that an application or request under Section 34(4) must be made by a party in writing. Justice Viswanathan even holds that the Court is suo moto empowered to invoke powers under Section 34(4).
Article 142 of the Constitution of India
The majority holds that the Supreme Court may invoke Article 142 to conclusively resolve disputes, but only in alignment with the fundamental principles of the Act of 1996, and without altering the award on merits. But the fundamental principle, as enshrined under Section 5, itself discourages such an action.
Justice Viswanathan, citing the Constitution Bench decision in Supreme Court Bar Association (1998), stresses that Article 142 cannot override substantive law, as doing so would enable parties to bypass statutory restrictions, especially where specific public policy discourages judicial intervention. Allowing such use would effectively permit the parties to achieve indirectly what it is prohibited from doing directly.
The Supreme Court in Bharat Sewa Sansthan (2007) echoed this, affirming that Article 142 must not be used to circumvent the Act of 1996. Although constitutional powers cannot be limited by a statute, using Article 142 contrary to substantive law risks undermining legal certainty and encourages misuse.
New York Convention
Another point of divergence between the majority and the dissent lies in their interpretation of the New York Convention, particularly regarding the implication of modifying arbitral awards.
Justice Viswanathan acknowledges the concern that enforcement efforts in foreign jurisdictions may face hurdles, as the party resisting enforcement could argue that what is being enforced is not the original arbitral award, but rather the judgment of a court. However, the majority convincingly counters this by referring to Section 48(1)(e), which provides that an award may be denied enforcement if it has not become “binding on the parties” under the law of the seat of arbitration.
Accordingly, the majority concludes that once an award is modified by a competent Court’s judgment or order, it is that modified version which becomes “binding on the parties” and, therefore, qualifies for enforcement under the Convention.
Therefore, in complex and evolving domains such as arbitration law, Justice Viswanathan’s well-reasoned dissent aptly highlights the perils of judicial overreach and reaffirms the core principles at stake—namely, finality and party autonomy—while duly respecting Parliament’s intent to limit judicial interference.
The constitutional mandate to amend the law and permit modifications rests squarely with the Parliament. In the absence of such legislative intervention, the majority opinion in Gayatri, with due respect, warrants reconsideration.
