An arbitral tribunal has no power to jail anyone. When a party defies a tribunal's order, the sanction of contempt comes not from the tribunal but from a court, and only through the narrow channel that Section 27(5) of the Arbitration and Conciliation Act, 1996 provides. That channel is easy to misdescribe as a tribunal contempt power; it is nothing of the sort. Understanding what Section 27(5) actually requires — a tribunal representation, wilful default, strict construction of a penal provision, and observance of natural justice — is what allows a respondent facing a contempt application to resist it. This piece sets out the statutory mechanism and the defences that flow from it.
What Section 27(5) Actually Says: A Referral, Not a Tribunal Power
Section 27 governs court assistance in taking evidence in an arbitration. Sub-section (5) extends the consequences of default to contempt of the tribunal, but the operative words channel the sanction through the court:
"Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court."
The phrase that decides everything is "by order of the court on the representation of the arbitral tribunal". It establishes a two-step sequence: the tribunal must first make a representation to the court, and only the court — never the tribunal — can pass a contempt order. Section 27(5) is therefore a statutory referral mechanism, not an independent contempt jurisdiction vested in the tribunal. The two-step process is itself a safeguard against the hasty or arbitrary exercise of penal power, and it is the first thing a respondent should test: a Section 27(5) application unsupported by a proper tribunal representation is fatally defective.
The leading authority is Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119, where the Supreme Court rejected the Bombay High Court's restrictive reading that Section 27(5) reached only witnesses who failed to attend. The Court held that the words "guilty of any contempt to the Arbitral Tribunal during the conduct of the Arbitral proceedings" must be given their plain meaning, and that the object of allowing parties to seek interim relief from a tribunal "would be stultified if interim orders passed by such Tribunal are toothless. It is to give teeth to such orders that an express provision is made in Section 27(5)". Crucially, the breadth of scope does not change the procedural nature of the provision: the tribunal refers, the court enforces.
The Wilfulness Requirement
Contempt is not made out by the bare fact of non-compliance. It requires wilful, deliberate and intentional disobedience — a mental element that the applicant must establish and that the respondent can squarely contest. On the analysis relied on in the memo, "wilful" means an act or omission done voluntarily and intentionally, with the specific intent to do what the law forbids or to fail to do what the law requires, or done with a bad purpose to disobey or disregard the law. Mere breach of an order is not enough.
It follows that non-compliance arising from a genuine inability to comply, from inadvertence or mistake, from a bona fide dispute about the scope of the tribunal's order, or from good-faith reliance on legal advice that the order was invalid, cannot ground a contempt finding. There is a further narrowing point: the scope of Section 27(5) has been treated as presently limited to civil contempt, and civil contempt under the Contempt of Courts Act, 1971 is itself defined to require wilful disobedience. The burden of proving that culpable mental state rests on the applicant, and any real doubt about wilfulness works in the respondent's favour.
The Tribunal Must Decide Contempt First — and Even Then the Court Has Discretion
The representation is not a rubber stamp. The tribunal must itself determine and identify the contempt before referring the matter; it is not a conduit for a disgruntled party. In Alka Chandewar, the Supreme Court described the remedy of the aggrieved party as being "to apply to the arbitral tribunal for making a representation to the Court to mete out appropriate punishment", after which "the Court would be competent to deal with such party in default". The exclusivity of that power matters: as one High Court analysis relied on in the memo put it, Section 27(5) contemplates the complaint being initiated "only being initiated by the Arbitral Tribunal in the form of a representation to the Court", the language deliberately omitting the party from the class who may represent.
That exclusivity cuts both ways for a respondent. It means the tribunal's power to represent is itself discretionary — a tribunal may decline to refer a minor or technical breach, or one adequately remedied within the arbitration — and it means the representation can be attacked as defective or overreaching if the tribunal acted as the applicant's agent rather than as an independent arbiter of whether contempt was warranted. Once a representation reaches the court, the court retains its own discretion: it may find the representation improperly made, conclude that the conduct was mischaracterised as contempt, or decline penal consequences even where some default is shown. The practical argument is that lesser remedies — damages, an adverse inference, adjustment reflected in the award — are available and should be preferred over a penal sanction.
Execution Under Section 17(2) Versus Contempt Under Section 27(5)
Since the 2015 Amendment, tribunal interim orders carry their own enforcement route. Section 17(2) provides that any order issued by the tribunal under that section "shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as if it were an order of the Court." A breach of a Section 17 interim order can therefore be enforced by execution proceedings under the CPC, which do not require proof of wilful contumacy.
This gives the respondent a structural argument. There are now two routes for a breached tribunal order: non-penal execution under Section 17(2), and penal contempt under Section 27(5), which carries the higher wilfulness threshold. The Law Commission's 246th Report, on which Alka Chandewar drew, regarded the 2015 Amendment as supplying a fuller solution to the enforcement of tribunal orders and reducing reliance on the cumbersome contempt route. Where an applicant has chosen the more severe remedy without justification, a respondent can argue that a penal sanction should be the last resort, not the first — though this is an evolving area, and courts are still working out when contempt is appropriate rather than execution.
Natural Justice: The Right to Be Heard Before a Contempt Finding
Contempt proceedings, being penal, attract the ordinary requirements of natural justice, and audi alteram partem is not suspended merely because contempt is alleged. Before finding contempt and representing the matter to the court, the tribunal must give the respondent a fair opportunity to answer the allegation. In practical terms that means clear notice of the alleged contempt, the facts, and the specific order said to have been breached; a genuine opportunity to file written submissions, affidavits and evidence; a reasoned determination with findings of fact; and no ex parte finding of contempt.
The memo grounds this in the general application of natural justice principles to arbitral proceedings and to findings of tribunal misconduct. Where the tribunal has made its representation without formally hearing the respondent on the contempt allegation, that omission is a complete procedural bar the respondent can raise; a court receiving such a representation may decline to entertain contempt proceedings on procedural grounds alone. Any request for a hearing that was denied or ignored should be documented and put in the front line of the defence.
Strict Construction of a Penal Provision
A cardinal rule of interpretation is that penal provisions are construed strictly in favour of the person against whom they are invoked, and ambiguities are resolved in that person's favour. Section 27(5), being the gateway to penal consequences, is subject to that discipline. Four consequences follow for a respondent. First, "contempt to the arbitral tribunal" is read narrowly and does not stretch to cover mere disagreement, tactical disputes or procedural missteps. Second, the applicant carries the burden of proving contempt by clear and cogent evidence. Third, every element of the Section 27(5) procedure must be satisfied, and failure in any one element defeats the application. Fourth, where adequate non-penal remedies exist, courts have been reluctant to impose contempt sanctions.
The memo is careful here, and the caution should be preserved. Some early High Court language suggested that any deviance from a court order under Section 27 "will be held to be contempt". That mechanical formulation was not endorsed by the Supreme Court as an absolute rule. In Alka Chandewar the Court confirmed only that Section 27(5) could reach tribunal orders more broadly than the Bombay High Court had thought, and it remanded the matter for a factual determination, expressly leaving it open to the respondent "to argue before the High Court that he has, on the facts of the case, not committed any contempt." Strict construction, not automatic liability, remains the governing principle.
Delay, Prejudice and Abuse of Process
Section 27(5) can be weaponised, and several defences guard against its misuse. Delay is one: in Alka Chandewar the Bombay High Court had treated the contempt petition as beyond limitation, and although the Supreme Court's focus was on the jurisdictional question and it left limitation to be reconsidered on remand, undue delay by a tribunal in representing an alleged breach can itself be a bar. Absence of prejudice is another: where any non-compliance was technical and caused no material harm to the arbitral process or the applicant's rights, courts have been slow to impose penal sanctions, drawing on the general distinction under the Contempt of Courts Act, 1971 between gross, egregious breaches and minor or technical ones. Concurrent proceedings, or the fact that the respondent's conduct is already being addressed through the award itself, can render a further contempt application an abuse of process. And ambiguity in the order defeats wilfulness: if the tribunal's direction was reasonably capable of more than one reading, the respondent's reasonable interpretation negates the intent that contempt requires.
Rejoinder Pleadings and Unverified Allegations
A practical trap arises where a contempt allegation surfaces for the first time in a rejoinder. Section 23(4) of the Act allows a tribunal to permit rejoinders as part of the pleadings, but, by analogy to civil procedure, a rejoinder cannot introduce new claims, facts or grounds not already raised, and must be confined to answering points taken in the reply or written statement. On the authority relied on in the memo, rejoinders "are not permitted to introduce entirely new grounds or evidence" and "must be confined to matters necessarily arising out of the reply or written statement." A further point concerns proof: an unverified or unaffirmed pleading is not evidence of the facts stated in it. A rejoinder that raises contempt without an affidavit has no probative value; it is a formal document, not proof.
The implications are cumulative. If a contempt allegation is first raised in an unaffirmed rejoinder, the tribunal's authority to consider it at all is doubtful (it may be a new ground beyond the scope of the pleadings), it carries no evidentiary weight, and any finding built on it is exposed to challenge under Section 34 for breach of natural justice, the respondent having had no fair notice or opportunity to meet it. The memo notes candidly that case law on rejoinders specifically in the contempt context is thin, so these arguments proceed largely by analogy from established pleading and evidentiary principles rather than from direct authority on point.
A Reasoned Representation, and the Limits of Cross-Border Reach
Two further points round out the defensive picture. A tribunal's representation must be reasoned: it should identify the order breached, state the facts of non-compliance, explain why the conduct amounts to contempt rather than mere breach, address the respondent's defences, and reach a reasoned conclusion. A bare assertion that "the respondent is in contempt", without this analysis, gives the court no jurisdictional foundation to act upon, drawing on the general requirement that tribunal orders be reasoned. Separately, the reach of Section 27(5) to foreign-seated arbitrations is uncertain. The 2015 Amendment extended Section 27 to foreign-seated arbitrations through the proviso to Section 2(2) where parties have not excluded it, but on the authority cited in the memo a person who disobeys the interim orders of a tribunal seated abroad "cannot be proceeded for the contempt under Section 27 of the Act." The extent of an Indian court's power to punish contempt of a foreign tribunal remains unsettled, and the uncertainty favours a cautious respondent.
Practical Takeaways
A respondent resisting a Section 27(5) application should, in substance:
- Test the threshold: check whether the tribunal made a formal, reasoned representation to the court, or merely oral statements. Without a proper representation, the court lacks jurisdiction.
- Attack wilfulness: document good-faith reliance on advice, genuine inability, or a reasonable interpretation of the order that differed from the tribunal's. The applicant bears the burden of proving deliberate disobedience.
- Raise any natural justice breach: if the tribunal did not formally hear the respondent on the contempt allegation before representing it, treat that as a complete procedural bar.
- Invoke strict construction: argue that the conduct falls outside "contempt to the arbitral tribunal" and that a penal remedy demands clear, cogent proof of every element.
- Point to the less-penal alternative: Section 17(2) allows enforcement by execution under the CPC, and the applicant's choice of contempt over execution requires justification.
- Exploit pleading defects: if the allegation first appears in an unaffirmed rejoinder, argue it is beyond the tribunal's remit, carries no evidentiary value, and taints any finding with a natural justice defect.
- Deploy delay and abuse-of-process arguments where a tribunal sat on the alleged breach, where no material prejudice resulted, or where the same conduct is already being addressed within the award.
The strength of any of these defences turns on the specific facts — the tribunal's reasoning, the nature of the order, and the character of the respondent's conduct. Where a tribunal has made explicit, reasoned findings of wilful breach, the respondent's task is harder, but the defences grounded in strict construction and procedural fairness remain available.
Key Authorities
- Arbitration and Conciliation Act, 1996, Section 27(5) — court punishment of contempt of a tribunal, only "by order of the court on the representation of the arbitral tribunal". Source
- Arbitration and Conciliation Act, 1996, Section 17(2) (as amended 2015) — tribunal interim orders deemed court orders, enforceable under the CPC. Source
- Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119 — foundational Supreme Court authority on Section 27(5): rejects the restrictive reading, confirms the referral mechanism, and leaves the respondent free to contest contempt on the facts. Source
- Anuptech Equipments Private Ltd. v. Ganpati Co-Operative Housing Society Ltd., 1999 SCC OnLine Bom 54 (Bombay High Court) — contempt must be established by clear and cogent evidence of deliberate breach.
- Ambalal Sarabhai Enterprises v. Amrit Lal & Co., (2001) 8 SCC 397 — a party may elect between Section 9 court relief and Section 17 tribunal relief.
- Montana Developers Pvt. Ltd. v. Aditya Developers, 2016 (6) Mah LJ 660 (Bombay High Court) — a court cannot adjudicate the merits of a tribunal order under Section 27, limiting the court's reviewing function.
- Dalmia Family Office Trust v. Getamber Anand, 2024 SCC OnLine Del 7155 (Delhi High Court) — application of natural justice principles to arbitral misconduct findings.
- Ranjit Kumar Paul v. Sanat Kumar Paul, judgment dated 10 January 2024 — rejoinders form part of the pleadings under Section 23(4) only if properly verified and limited in scope; unverified pleadings are not evidence. Source
This analysis reflects the law as at July 2026. It is published for general information and does not constitute legal advice.