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Judges Not Responsible for Foreign Investment: Justice Oka Defends Justice Bhuyan's Delhi Metro Criticism
In a significant intervention that has reignited debate over and arbitration policy, former judge Justice Abhay Oka has publicly defended sitting judge Justice Ujjal Bhuyan's sharp criticism of the 's 2024 judgment in the Delhi Metro arbitration case. Speaking at an event in New Delhi, Justice Oka asserted that judges have a constitutional duty to state what they consider legally correct, and that concerns about foreign investment must not influence judicial reasoning. His remarks come amid a deepening rift within the legal fraternity over the proper scope of and the in India.
Background: The Delhi Metro Arbitration Judgment
The controversy centers on the 's decision in , which allowed a curative petition filed by and set aside an arbitral award of approximately ₹2,800 crore in favor of . The award had already survived challenges under , an appeal under , and a review petition. The 's three-judge bench—comprising then-Chief Justice D.Y. Chandrachud, Justice B.R. Gavai, and Justice Surya Kant—held that the award suffered from and that its earlier restoration by the Court in 2021 had resulted in a .
The judgment invoked the extraordinary established in , raising fundamental questions about how far the Court can go to correct its own errors without undermining the finality that arbitration law is designed to achieve.
Justice Bhuyan's Critique and the Institutional Backlash
In , Justice Ujjal Bhuyan publicly criticized the 2024 judgment during a lecture on arbitration reform. He argued that the exercise of in this case was an "unprecedented move" that had caused extensive damage to arbitration in India. He pointed out that the award had passed through five layers of judicial scrutiny—arbitration, Section 34, Section 37, Article 136, and review—before being overturned in curative proceedings. He also linked the judgment to a subsequent Finance Ministry policy discouraging arbitration in high-value government contracts, describing it as a retreat from India's ambition to become a global arbitration hub.
Justice Bhuyan's remarks drew immediate criticism from former judge Justice Indu Malhotra, who described the criticism as an "act of indiscretion." She warned that strong adverse comments by a sitting judge could be used by foreign treaty investors against India in investment arbitration. Chief Justice Surya Kant also made a veiled response, emphasizing the need for in public commentary.
Justice Oka's Defence: Judicial Duty Over Economic Consequences
Speaking on , at an event organized by the , Justice Oka robustly defended Justice Bhuyan's right to express his views. He noted that instead of addressing the legal reasoning behind Justice Bhuyan's criticism, some had labeled it "irresponsible" and suggested it could harm foreign investment. Justice Oka countered:
"I personally feel that it is not the job of judges to secure foreign investment to our country. Our duty is to say and to do what we feel is constitutionally and legally correct."
He further praised Justice Bhuyan as one of the few members of the legal fraternity willing to take a strong stand on issues, stating that
"in an era when members of the legal fraternity hesitate to take stand on issues, there are very few exceptions. One of them is Justice Bhuyan."
The Core Legal Tension: vs. Arbitration Finality
Justice Oka's intervention shifts the debate from the merits of the 2024 judgment to a deeper constitutional question: Should a sitting judge be permitted to publicly criticize an earlier judgment of the same court? Justice Oka's answer is a clear yes, provided the criticism is grounded in constitutional and legal principles.
But the underlying arbitration issue remains unresolved. The 2024 judgment relied on the standard under , which permits setting aside an award if it is vitiated by appearing on the face of the award. However, the proviso to that section expressly bars setting aside an award merely for erroneous application of law or reappreciation of evidence. Critics argue that the 's detailed re-examination of evidence—including the CMRS certification and contractual interpretation—crossed the line into .
Supporters of the judgment contend that the tribunal had ignored vital evidence and adopted a legally impossible interpretation of the contract, thus satisfying the high threshold of . They also emphasize that exists precisely to prevent a when all other remedies have failed.
Impact on India's Arbitration Landscape
The controversy has had tangible consequences. On , the issued guidelines discouraging arbitration in government procurement contracts above ₹10 crore, citing concerns about expense, delay, and lack of finality. Justice Bhuyan has publicly linked this policy to the Delhi Metro judgment, though the causal connection remains debated.
Subsequent decisions in 2025 and 2026, including and , have reaffirmed that Section 34 and Section 37 do not permit routine . These rulings suggest that the Delhi Metro case should be treated as an exceptional exercise of , not a precedent for broader judicial intervention.
Nevertheless, the debate has exposed a fragility in India's arbitration ecosystem. Commercial parties require predictability, and the perception that a final decision can be reopened through curative proceedings may deter foreign investors and encourage litigants to exhaust every possible forum.
A Clash of Institutional Visions
Justice Oka's defense of Justice Bhuyan underscores a fundamental division within the judiciary. On one side stands the view that judges must prioritize legal correctness over economic consequences, even if that means publicly challenging a coordinate bench's decision. On the other side is the concern that such public dissent undermines institutional authority and exposes the country to international legal risks.
Justice Malhotra's warning about treaty arbitration is not unfounded. Under bilateral investment treaties, a host state's judicial decisions can sometimes be challenged as a . A sitting judge's criticism of a judgment could be cited as evidence of . Yet Justice Oka's retort—that judges are not responsible for securing foreign investment—raises the equally important principle that cannot be held hostage to commercial diplomacy.
Conclusion: The Unresolved Balance
The Delhi Metro controversy is far from settled. The curative petition remains an exceptional remedy, but its use in this case has opened a fissure in arbitration law that will take years to repair. Justice Oka's intervention serves as a reminder that the judiciary's primary allegiance is to the , not to market sentiment. As India strives to become an arbitration-friendly jurisdiction, it must navigate the delicate balance between correcting grave injustice and preserving the finality that makes arbitration commercially viable. The coming months will reveal whether subsequent benches will follow the Delhi Metro path or reassert a stricter boundary between judicial review and arbitration autonomy.
