Justice Indu Malhotra Criticizes Justice Bhuyan’s Remarks on Arbitration

In a rare instance of introspection within the judiciary, Justice Indu Malhotra, a retired Supreme Court judge, has openly discussed the conduct of her former colleagues and the institutions they represent. Her comments come in light of recent remarks by Justice Ujjal Bhuyan of the Supreme Court, who has been notably critical of the Court’s arbitration jurisprudence, specifically questioning its intervention in the Delhi Metro Rail Corporation (DMRC) case.

In a conversation with Debayan Roy from Bar & Bench, Justice Malhotra provides her perspective on a sitting judge’s public critique of the judiciary’s record. This discussion also revisits the Sri Krishna Committee’s reform blueprint, which Justice Malhotra contributed to, including her views on judicial delays, the Gayatri Balasamy decision on award modifications, and why retired judges should not lead India’s arbitration bodies.

Reflecting on her elevation directly to the Supreme Court after nearly 30 years at the Bar, Justice Malhotra describes the transition as seamless due to her extensive experience in the Supreme Court procedures. She underscores the importance of vigilance and caution in the top court to avoid precedent-setting irrelevant remarks.

Upon retirement, Justice Malhotra returned to arbitration, noting significant changes since 2015, including the introduction of Section 29A for timely award completion and amendments addressing conflict of interest. She points out the stagnation at the Section 34 stage, where court delays impede arbitration processes, suggesting the establishment of specialized arbitration benches to mitigate such issues.

Justice Malhotra critically assesses the Justice Srikrishna Committee’s framework, advocating for dynamic leadership in arbitration centers rather than retired judges. She highlights the inefficacy of the India International Arbitration Centre due to inadequate infrastructure, suggesting that younger, energetic individuals should helm these institutions with government support.

Discussing the DMRC case, Justice Malhotra supports the Supreme Court’s rare use of curative jurisdiction due to the extraordinary circumstances involving public funds and crucial evidence overlooked by arbitrators. While expressing reservations about the recent trend of judges making public criticisms, she emphasizes that such remarks can harm India’s international arbitration reputation, suggesting greater circumspection is needed.

On the topic of arbitration’s potential, Justice Malhotra observes a growing interest among young lawyers, particularly in Mumbai, while noting that Delhi’s arbitration bar is still developing. She identifies court delays at the Section 34 and 37 stages as major bottlenecks in enforcement, suggesting the use of AI to manage the voluminous paperwork involved in cases.

Justice Malhotra also touches on the evolving role of experts in arbitration, advocating for independent experts appointed by tribunals to ensure impartiality. She acknowledges the complexity of construction arbitration and the need for specialized training to match international standards.

Concluding, Justice Malhotra reflects on her pioneering role as the first woman directly elevated to the Supreme Court and the growing pool of female arbitrators today. She hopes for a future where young women in law encounter fewer barriers and greater opportunities than she did.