Law4u - Made in India

What Is The Public Policy Exception Under Section 48 Of The Arbitration Act?

Answer By law4u team

Section 48 of the Arbitration and Conciliation Act, 1996 sets out limited grounds on which enforcement of a foreign arbitral award may be refused by Indian courts. Among these, the public policy exception acts as a crucial safeguard, preventing enforcement of awards that are fundamentally opposed to Indian legal principles, morality, or sovereignty. Given India’s pro-arbitration stance and its obligations under the New York Convention, courts have consistently interpreted this exception narrowly to avoid misuse while ensuring justice and fairness.

Detailed Explanation of the Public Policy Exception

1. Legal Text and Framework

Section 48(2)(b) of the Arbitration and Conciliation Act, 1996 states that enforcement may be refused if it is contrary to the public policy of India.

This clause incorporates the public policy exception recognized under the New York Convention (Article V(2)(b)).

2. Judicial Interpretation and Key Case Laws

  • Renusagar Power Co. Ltd. v. General Electric Co. (1994) 1 SCC 644
    The Supreme Court held that public policy refers to awards that are patently illegal or opposed to the fundamental policy of Indian law, the interests of India, justice, or morality. Mere procedural irregularities or disagreements with the award’s findings are insufficient.
  • ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705
    The Court expanded the scope to include awards obtained by fraud, corruption, or violation of natural justice. If any of these elements are proven, the award is contrary to public policy.
  • BALCO (Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc.) (2012) 9 SCC 552
    This case clarified the applicability of Part I and Part II of the Arbitration Act and reinforced the limited scope of public policy for foreign awards under Section 48.
  • Indian Oil Corporation Ltd. v. Greenstone Shipping & Logistics Pvt. Ltd. (2021)
    Recent judgments emphasize that the public policy exception should not be used as a backdoor to re-examine merits but only to address fundamental violations.

3. Scope of ‘Public Policy’

  • Fundamental Policy of Indian Law: Enforcement cannot violate core principles like contractual freedom, procedural fairness, or sovereignty.
  • Fraud and Corruption: Awards procured by fraudulent means or corruption are voidable.
  • Violation of Natural Justice: Denial of a fair hearing, lack of opportunity to present the case.
  • Violation of Indian Sovereignty or Security: Awards that affect national interest or public order.
  • Offending Morality: Awards that shock the conscience or offend community morals.
  • Non-Arbitrability: Awards concerning disputes that are not arbitrable under Indian law (e.g., certain family, criminal or insolvency matters).

4. Limitations and Safeguards

  • The exception is not a tool for appellate review; courts do not re-assess evidence or merits.
  • It acts as a safety valve to prevent gross injustice.
  • Courts avoid expansive interpretations to maintain India’s reputation as a pro-arbitration jurisdiction.

Example

Scenario:

An international company obtains a foreign arbitral award against an Indian party. The Indian party contests enforcement, alleging the award was procured through fraudulent misrepresentations and they were denied a chance to present critical evidence.

Outcome:

  • The Indian courts investigate the claims of fraud and breach of natural justice.
  • Upon establishing these, enforcement is refused under the public policy exception.
  • If claims are unsubstantiated, the award is enforced.

Key Takeaway:

The public policy exception is a narrow but powerful safeguard ensuring that only awards violating core justice principles or procured by misconduct are denied enforcement.

Our Verified Advocates

Get expert legal advice instantly.

Advocate Prasoon Vashistha

Advocate Prasoon Vashistha

Anticipatory Bail, Cheque Bounce, Consumer Court, Criminal, Divorce, Domestic Violence, Family, Succession Certificate, Cyber Crime

Get Advice
Advocate Hiteshkumar D Parmar

Advocate Hiteshkumar D Parmar

Bankruptcy & Insolvency, Breach of Contract, Cheque Bounce, Civil, Consumer Court, Criminal, Cyber Crime, High Court, RERA, Succession Certificate, Revenue, Anticipatory Bail

Get Advice
Advocate Sulochana Sahu

Advocate Sulochana Sahu

Anticipatory Bail, Breach of Contract, Cheque Bounce, Child Custody, Civil, Court Marriage, Criminal, Divorce, Documentation, Domestic Violence, Family, High Court, Motor Accident, Property, R.T.I, Recovery, RERA, Startup, Trademark & Copyright

Get Advice
Advocate Prabu

Advocate Prabu

Civil, Cheque Bounce, Divorce, Criminal, Property

Get Advice
Advocate Ganesh Kakarwal

Advocate Ganesh Kakarwal

Anticipatory Bail, Banking & Finance, Breach of Contract, Cheque Bounce, Child Custody, Civil, Consumer Court, Corporate, Criminal, Divorce, Domestic Violence, Family, Insurance, Landlord & Tenant, Motor Accident, Property, R.T.I, Recovery, Succession Certificate, Revenue, Medical Negligence, High Court, Court Marriage, Trademark & Copyright, Documentation, Cyber Crime, RERA

Get Advice
Advocate Rajnish Sharma

Advocate Rajnish Sharma

Anticipatory Bail, Armed Forces Tribunal, Cheque Bounce, Child Custody, Civil, Consumer Court, Criminal, Court Marriage, Corporate, Divorce, Cyber Crime, Domestic Violence, Family, Medical Negligence, Motor Accident, Media and Entertainment, Landlord & Tenant, Insurance, Recovery, Breach of Contract

Get Advice
Advocate Praveen Kumar

Advocate Praveen Kumar

Divorce, Criminal, Cyber Crime, Family, Motor Accident, Documentation

Get Advice
Advocate Kunal Kumar Singh

Advocate Kunal Kumar Singh

Anticipatory Bail, Arbitration, Armed Forces Tribunal, Bankruptcy & Insolvency, Banking & Finance, Breach of Contract, Cheque Bounce, Child Custody, Civil, Consumer Court, Corporate, Court Marriage, Customs & Central Excise, Criminal, Cyber Crime, Divorce, Documentation, GST, Domestic Violence, Family, High Court, Immigration, Insurance, International Law, Labour & Service, Landlord & Tenant, Media and Entertainment, Medical Negligence, Motor Accident, Muslim Law, NCLT, Patent, Property, R.T.I, Recovery, RERA, Startup, Succession Certificate, Supreme Court, Tax, Trademark & Copyright, Wills Trusts, Revenue

Get Advice

public international law Related Questions

Discover clear and detailed answers to common questions about public international law. Learn about procedures and more in straightforward language.