Open Access Research Article
CONSTITUTIONALISM AND ALTERNATIVE DISPUTE RESOLUTION IN INDIA: EXAMINING THE LEGITIMACY OF ARBITRATION
Abstract
ABSTRACT
Arbitration's
traditional justification rests on private contractual consent: parties,
exercising their autonomy, choose to resolve disputes outside the ordinary
courts, and the resulting award binds them because they agreed it should. Yet
arbitration performs a function structurally indistinguishable from public
adjudication — determining legal rights, applying law to facts, and producing
binding, court-enforceable outcomes — and does so with increasing frequency in
disputes involving the State, State instrumentalities, and parties of starkly
unequal bargaining power. This paper undertakes a critical, doctrinal
examination of whether consent alone can sustain arbitration's legitimacy in
the Indian constitutional order, or whether arbitration, particularly in
public-private and asymmetric-power contexts, must additionally satisfy
constitutional benchmarks ordinarily reserved for public adjudicative bodies.
The paper traces this question through two of the most significant developments
in recent Indian arbitration jurisprudence: the culmination, in Central
Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV) (2024), of a
seven-year doctrinal saga over unilateral arbitrator appointment, in which a
five-judge Constitution Bench held that arbitration clauses permitting one
party unilaterally to appoint or curate the panel of arbitrators violate
Article 14's equality guarantee even in ordinary commercial public-private
contracts, thereby importing constitutional and administrative-law principles
directly into private arbitration agreements; and the Constitution Bench's
subsequent ruling in Gayatri Balasamy v. ISG Novasoft Technologies Ltd. (2025),
which navigated the tension between arbitration's foundational commitment to
finality and the competing imperative of correctability, holding that courts
may sever discrete, severable errors from an arbitral award without converting
Section 34 into an unauthorised appellate jurisdiction. Drawing on
constitutional theory regarding the sources of adjudicative legitimacy, the
paper argues that Indian arbitration jurisprudence has, particularly since
2024, moved decisively towards a hybrid legitimacy model, in which consent
remains necessary but is no longer sufficient, and constitutional principles of
equality, natural justice and proportionate judicial oversight now operate as
independent, non-waivable legitimating constraints. The paper examines the
doctrinal tensions this hybrid model generates, including the strong dissenting
objection that importing public-law principles into private arbitration
agreements erodes party autonomy, and concludes with an assessment of what a
coherent, constitutionally grounded theory of arbitral legitimacy requires
going forward.
Published Paper
Author Details
Authors: SAHIL SEHRAWAT
Registration ID: 1013065 | Published Paper ID: IJLRA13065
Year: Aug-2026 | Volume: 3 | Issue: 5
Approved ISSN: 2582-6433 | Country: Delhi, India
Page No.: 1700-1721
Article Information
CONSTITUTIONALISM AND ALTERNATIVE DISPUTE RESOLUTION IN INDIA: EXAMINING THE LEGITIMACY OF ARBITRATION
Authors: SAHIL SEHRAWAT
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 5
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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