Patent Illegality As A Ground For Setting Aside Arbitral Awards In India: From 2015-2025 – Do We Need An Amendment?
- IJLLR Journal
- 2 days ago
- 1 min read
Dr. Samina Nahid Baig, Assistant Professor of Law, Karnataka Law Society’s Raja Lakhamgouda Law College, Belagavi*
ABSTRACT
The ground of "patent illegality" has been the single most contested doctrinal battleground in Indian arbitration law since the Supreme Court first read it into the concept of "public policy of India" in Oil & Natural Gas Corporation Ltd v. Saw Pipes Ltd. What began as an interpretive gloss on Section 34(2)(b)(ii) of the Arbitration and Conciliation Act, 1996 was, within a decade, converted by the Arbitration and Conciliation (Amendment) Act, 2015 into an independent statutory ground under the newly inserted Section 34(2A) available only for domestic awards, and expressly excluding "mere" erroneous application of law or reappreciation of evidence. This article traces the doctrinal trajectory of patent illegality from Saw Pipes through ONGC v. Western Geco, Associate Builders v. DDA, and Ssangyong Engineering v. NHAI, to the controversial 2024 curative intervention in Delhi Metro Rail Corporation v. Delhi Airport Metro Express and the 2025 Constitution Bench decision in Gayatri Balasamy v. ISG Nova soft Technologies.
This article argues that despite repeated judicial attempts to narrow the doctrine, the distinction between patent illegality and an erroneous application of law continues to remain uncertain in practice.
Keywords: patent illegality; Section 34(2A); Arbitration and Conciliation Act 1996; public policy; ONGC v. Saw Pipes; Ssangyong; Gayatri Balasamy; judicial review of arbitral awards.
