In allowing curative plea in DMRC case, how Supreme Court pushes the envelope

In 2002, in Rupa Hurra v Ashok Hurra, the SC allowed curative writs as the last resort to correct judgments that are “oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

However, exercising curative jurisdiction in a commercial case pushes the envelope and raises questions on the finality of a ruling of the highest court in the country.

In November 2021, the Supreme Court had dismissed a review petition against its judgment delivered a month before on the Delhi Metro Arbitration. In doing so, a bench of Justices Nageswara Rao and Ravindra Bhat had underlined the need for judicial restraint in interfering with arbitral awards.

The stretched timelines on the Court’s interference in crucial commercial issues also raises questions on the enforcement of arbitral awards in India.

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award. This approach would lead to corrosion of the object of the 1996 Act and the endeavours made to preserve this object, which is minimal judicial interference with arbitral awards,” the 2021 ruling had said.

Anirudh Krishnan, partner at AK law Chambers, a boutique law firm that specialises in arbitration, told The Indian Express that the SC intervention appears to run contrary to the principle of minimum judicial interference which the Supreme Court has keenly promoted post 2015.

“The interference by the Supreme Court in the curative petition is on two grounds: first on the interpretation of the termination clause in the contract itself and on ostensible ignorance of material evidence. While the SC states that the interpretation of the termination clause by the Tribunal was perverse, it is a slippery subjective slope between a plausible though incorrect interpretation (which cannot be interfered with) and a perverse interpretation. The SC also virtually re-appreciates evidence (the CMRS certificate) which is also contrary to established precedent. To overturn an award on these grounds in a curative petition appears to run contrary to the principle of minimum judicial interference which the Supreme Court has keenly promoted post 2015,” Krishnan said.

The stretched timelines on the Court’s interference in crucial commercial issues also raises questions on the enforcement of arbitral awards in India.

In her 2023 article in the American Review of International Arbitration, professor of law and director of International Programs at Texas A&M University School of Law, Srividhya Raghavan noted that the airport metro case shows “how the delay detrimentally affects dearly required infrastructure projects, deters private investments, dampens India’s ability to manage public-private partnerships, and, finally, showcases how the Indian judiciary can subject investors to a roller coaster ride.”

Even the SC, in its curative writ, flags the perils of its intervention. “…we clarify that the exercise of the curative jurisdiction of this Court should not be adopted as a matter of ordinary course. The curative jurisdiction should not be used to open the floodgates and create a fourth or fifth stage of court intervention in an arbitral award, under this Court’s review jurisdiction or curative jurisdiction, respectively,” the ruling states.