APPLICATION OF DOCTRINE OF PUBLIC POLICY IN CONFLICT OFLAWS Subject title- Conflict of Laws Submitted to- Asst. Prof. Akash Kumar Submitted by- Shruti Kamble Student Id: MU12BALLB001 Class- BA. LLB Year- 3rd Semester- 6th MATS University MATS Law School 0 I would like to extend my sincere thanks to all of them. I am highly indebted to my subject lecturer Asst Prof. Thank You Shruti Kamble 1 . Akash Kumar for his guidance and constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project. I would like to express my gratitude towards my parents for their kind co-operation and encouragement which help me in completion of this project. I would like to express my special gratitude and thanks to my subject lecturer for giving me such attention and time.ACKNOWLEDGEMENT I have taken efforts in this project. My thanks and appreciations also go to my friends and sister in developing the project and people who have willingly helped me out with their abilities. However. it would not have been possible without the kind support and help of many individuals. TABLE OF CONTENTS S. 1 CONTENT INTRODUCTION PAGE 3 2 DOCTRINE OF PUBLIC POLICY 4 3 COMITY V PUBLIC POLICY 6 4 SCOPE OF DOTRINE OF PUBLIC POLICY 7 5 JUDICIAL INTERPRETATION OF DOCTRINE OF PUBLIC 9 POLICY.no. INDIAN CASES 6 CONCLUSION 13 7 REFERENCES 14 2 . But the term public policy is subject to the vision of the judge and time to time the judges have tried to determine the scope of the application of the ‘doctrine of public policy’. The expression ‘any law in force in India includes public policy as one of the factor. Deciding over such critical issue which is directly related to the ‘justice’ it is very important to determine the factors over which the compromise of the foreign laws or domestic law depends. When a foreign element is involved in a case then the choice of law remains the question of concern. In Indian context the essence of doctrine of public policy is found in Section 13(f) of the Civil Procedure Code 1908 1 which suggest that the foreign judgment is not conclusive where it sustains a claim founded on breach of any law force in India. 3 . (f) where it sustains a claim founded on a breach of any law in force in India. When foreign judgment not conclusive? A foreign judgment shall be conclusive as to any matterthereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except? (a) where it has not been pronounced by a Court of competent jurisdiction. (b) where it has not been given on the merits of the case. 113. (d) where the proceedings in which the judgment was obtained are opposed to natural justice. At the same time when decree granted by the foreign court then the question of execution and enforcement of the decree arises. Such enforcement turns into a matter of justice and fair treatment where the rights of the parties under dispute are at stake.I INTRODUCTION Private International law or Conflict of law is a branch of international interstate laws and international law that controls all proceedings concerning a foreign law factor. (e) where it has been obtained by fraud. (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable. On one side the foreign laws are meant to be respected for the sake of maintaining harmonious relation among the states on the other side are disregarded on certain grounds of which the public policy is the strongest factor to set aside a foreign decree or to overlook a foreign law. that the English views would prevail in proceeding. It is also one of the most important criteria for acceptance or exclusion of foreign legal proceeding in any country. tradition.' Hence the Acts in violation of law shall be considered against the 'Public Policy. which was grown up gradually with the growth of the nation. 4 Under English law it is a well established principle that any action brought in the country is subject to English doctrine of public policy. custom. Private International Law in India. These laws are the result of the various factors like norms. 111. The concept of the 'Public Policy' denotes that what is good for the public or in public Interest or what would be injurious or harmful from time to time. Most frequently the doctrine of public policy 2 History of English law. 78. morals. P.II DOCTRINE OF PUBLIC POLICY Each state has its own set of law which may be same or may differ from the laws of the other states. Vol. Laws on Public Policy of India and its Impacts on Arbitration Awards in Construction Industry 4 KB Agrawal & Vandana Singh. seek to weaken or negative them. Certain foreign laws and institutions seem so repugnant to English notions and ideals. it must be able on the ground of public policy or some other like ground to suppress practices which.2 While determining the correctness of application of a particular in the case involving conflict of laws it is focused that during application of laws it should not be derogatory to what the people at large is following. necessarily acquires some fixed principles.3 Public policy is one of the most important factors for all countries that regulates the acceptance and application of the general as well as particular rule of conflict of laws. principles etc. culture. These factors play very important role and are always been kept at the prominent while determining which should be applied in the case of conflict of laws between the states and even the conflict of laws within the state. It is a body of law.55 3 O. and if it to maintain these principles. Anything that hurts collective consensus is against the 'Public Policy.P GUPTA.5 English court would refuse to apply a law which outrages its sense of justice and decency. Aisa Law House. Hyderabad 4 . under every new disguises. might the decision would have been 5 JJ FAWEEET& PM NORTH. even the moral values could be borrowed from the other state. the concept is subject to the judicial interpretation or how a judge at the time of adjudication responds to a matter. Cheshire & North’s Private International Law. The moral principles change from time to time and person to person and so as the public policy. the court described it as untrustworthy guide or unruly horse. An example could be taken as of the NAZ foundation case which prohibited any LGBT relationship.13th Ed. In the present scenario where the nation and their culture and values cannot be put into a watertight compartment. AIR 2003 SC 2629 7 Mafizuddin Khan Chaudhary v Habibudin Sheikh. AIR 1951 Cal 336 8 P Rathinam v Union of India. Oxford UniversityPress 6 Oil and Natural Gas Corp Ltd. had the judge who adjudicated the matter been young or from some different background. Expression does not admit of precise definition. AIR 1994 SC4884 5 . where there were conflicts regarding LGBT rights. Public Policy A Vague Term In Oil and Natural Gas Corp Ltd. which ought to govern "on principle." Others assign to it also a positive function. In Mafizuddin Khan Chaudhary v Habibudin Sheikh 7. susceptible to narrow or wider meaning depending upon the content in which it is used. they are capable on proper occasions of expansion and modification. In P Rathinam v Union of India8 it was the Court stated the term Public policy as illusive.. 123. varying and uncertain. v Saw Pipes Ltd. Public policy has been described as an unruly horse. v Saw Pipes 6 it was held that public policy connotes some matter which concerns public good and the public interest.is regarded as having merely a negative function. Thus the series of cases which has tried to elaborate or confine the term public policy suggest that. Concept of public policy is considered to be vague. that of justifying the non-application of a "foreign" law. Rules of public policy do not belong to a fixed or customary law. according to which duties may be imposed contrary to those that would result from the application of the general rule. It is a vague and perhaps an unruly term. then the public policy in the matter of LGBT rights would entirely have been different.different or different approach have been adopted. 6 . legislative.. Comity specifically refers to legal reciprocity. 9 ATUL M SETALVAD. or other jurisdictions within the same nation. doctrine of public policy is an exception to it. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum.com/comity/#sthash. But such compromise cannot be done overlooking the matter of public policy. A presumption that other jurisdictions will reciprocate the courtesy shown to them is a part of comity.10 Where the doctrine of comity of nations puts and obligation over the nations to respect the laws of other nations. available at. the better view appears to be that the basis is the need to do justice to the parties.III COMITY V PUBLIC POLICY The whole idea of domestic rule of conflict of laws is to establish the criteria to resolve the dispute involving the elements of two or more different judicial systems.QXWFoH9v. Comity means the accepted rules of mutual conduct between the State and the State which each state adopts in relation to the other States and expects other States to adopt in relation itself. Thus Policy is kept at the higher place as compared to any other matter.uslegal. Conflict of Laws. the principle that one jurisdiction will extend certain courtesies to other nations. Nothing can be adopted by a State which is derogatory to the principles formulated and adopted by it since time immemorial.dpuf 7 . laws.9 This is particularly done by recognizing the validity and effect of their executive. Lexis Nexis Butterworths Wadhwa Nagpur 10COMITY. http://conflictoflaws. The object of doctrine of comity is to give the party under dispute justice which would not be possible without application of the law related to the foreign element. 2nd Ed. The term refers to the idea that courts should not act in a way that demeans the jurisdiction. or judicial decisions of another jurisdiction. Doctrine of Comity of nations is the basis for applying the principles of conflict of laws. and judicial acts. Nothing can be accepted and executed by the State which opposes its principles. which extends to application of foreign laws in matter involving foreign element to the execution of a foreign judgment. p5. 8 . FE Norohna80 13 Kolaparti Venkattareddy v Kolapartipeda venkatachalam AIR 1964 AP 465 14 Ratanchand Hirachand v Ashok Nawaz Jung. Ltd11. It has also been accepted that the public policy is not a static concept. restrain of liberty. If the interpretation is liberalized then it would undermine the principle of comity of nation as it would turn widely inclusive. 12 Public policy does not have any specific definition. commerce or natural right or legal rights whatever tends to the obstruction of justice or to the violation of the statue and whatever is against the moral standards when made the object of contract is against the public policy and therefore void not susceptible to enforcement. 13 The role of judge Justice C Reddy of Andra Pradesh High Court observed. Courts are slower to invoke the public policy in cases involving a foreign element on the ground that ‘transactions containing a foreign element may constitute a less serious threat to municipal institutions than would purely local transactions. the Supreme Court has observed while applying the rule of public policy between a matter governed by domestic law and a matter involving conflict of laws. AIR 1976 AP 112 9 .IV SCOPE OF DOTRINE OF PUBLIC POLICY The term public policy is general in nature and is entirely dependent on its interpretation whether accepted in narrower sense or wider sense. v General Electric Co. Whatever tends to result in injustice of operation.’14 The Indian courts too have specifically determined that any rule or decision of a foreign law cannot be accepted in India if it is against the public policy of the nation.’ The twin touch stone of public policy are advancement of public good and prevention of public mischief and these questions have to be decided by judges not as men of legal learning but experienced and enlightened members of the community respecting the highest common factor of public sentiment and intelligence. In Renusagar Power Co Ltd. Public policy connotes some matter that 11 AIR 1994 SC 860 12 Private international law in india adequacy of principles in comparison. The court suggested that the application of doctrine of public policy in the field of conflict of laws is more limited. Cas 797 (SC) 16 Rastanchand Hirachand v Ashok Nawaz Jung. AIR 1976 AP 112 17 Gulabchand Gambhirmal v Kudilal Govindram. If the object of any contract has harmful tendencies. an agreement having tendency to injure public interest or public welfare is opposed to public policy. AIR 1959 MP 151 10 .17 15 Central water inland transport corporation ltd v Brojonath Ganguly. 15 The SC has added that going by prevailing social circumstances. the contract would be void as contrary to public policy. (1986) 60 Comp. also what would be harmful or injurious to the public good or public interest has varied from time to time.concerns public good or is in public interest.16 The courts have come to regard the doctrine of public policy as extending also to harmful tendencies. the question was to be decided was whether another French company had taken over the French Company on a given date. 113. Lexis Nexis Butterworths Wadhwa Nagpur 20 Technip SA v SMS Holding.. but prima facie. principally in the prescribed limits of shareholding to establish control and the existence of such differences did not make the French provisions opposed to public policy.V JUDICIAL INTERPRETATION OF DOCTRINE OF PUBLIC POLICY. it would not. where an Indian company was the subsidiary of French Company. allow a murderer to succeed to the estate of his victim whatever the rule of that foreign law may be on the grounds of public policy. 2nd Ed. it is submitted.19 Foreign Takeover regulations In Technip SA v SMS Holding 20. that French law and regulations were as rigorious as those of India and differed only marginally. The court therefore applied French Laws. INDIAN CASES Succession: It is a settled rule in Indian domestic law that no person can benefit from a crime committed by him. P. Conflict of Laws. AIR 1924 PC 209 19 ATUL M SETALVAD. consequently no person can inherit from a person whose death he has caused. where an Indian court is applying a foreign law in a case of succession of a person. this is a rule of justice. (2005) 5 SCC 465 11 . 18 Kenchava v Girimalappa Channapa.18 The question does not seem to have arisen in conflict of laws situation. The Supreme court held that whether the French company had been taken over by the other French Company had to be determined by applying French laws and regulations governing takeovers. equity and good conscience. Ltd v General Electronis Co. which governed the debt. However.AIR. Such an agreement does not contravene Section 28 of the Indian Contract Act. English courts would give effect to the exchange control laws of that country and that enforcing such laws is not opposed to the public policy. 1872 (the Act). It held that it is not open to the parties by agreement to confer jurisdiction on a court which it does not possess under the Code. The court also held that an award which was contrary to Indian Exchange control laws would not be enforced in India as being opposed to public policy. The apex court considered that clauses which are in restraint of judicial/ legal 21 Raman Chettiar v Raman Chettiar. Gammon (India) Ltd 24 the Supreme Court of India added legal clarity to the jurisdiction of courts. Ltd. could not be regarded as opposed to public policy as India has enacted similar legislation. it clarified that in a scenario where two courts or more have jurisdiction under the Code to try a suit or proceeding. the Supreme court has cited with approval English decision and set out a rule in a leading English text book that if a contract is governed by a foreign law. AIR 1954 Mad 97 22 Delhi clothes & General mills co ltd v Harnam Singh.In Raman Chettiar v Raman chettiar21 it has been held that where the proper law of debt was Burmese law. Further in Renusagar power Co. an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy. Further in Delhi clothes & General mills co ltd v Harnam Singh 22 the Supreme Court held that the evacuee property law passed in Pakistan. Ltd v General Electronis Co. AIR 1955 SC 590 23 Renusagar power Co. 1990 2 Comp LJ1 SC 12 . AIR 1971 SC 740 25 British Steam Navigation. 1994 SC 860 24 Hakam Singh v. Ltd. Gammon (India) Ltd. 23. The Supreme Court of India in British Steam Navigation25 had further interpreted Section 28 of the Act as applied to cross border transactions. It held that the term “absolutely” in Section 28 is critical. a Burmese law enacted to relive debtors would be enforced as it was just and equitable. Contracts In Hakam Singh v. the clause will be enforceable. 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy. The balance of convenience needs to be looked into by the courts in terms of cross border transactions and foreign jurisdictions. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. http://ncw. The only three exceptions to this rule were also laid down by the Court itself as follows27: 26 Pritam Ashok Sadaphule V. justice. equity and good conscience.in/frmnriimpcaselaws. Hema Chugh26 the dispute was with respect to this ex-parte foreign 'decree' that granted divorce on the ground of "irretrievable breakdown" of marriage. The foreign decree was dismissed to be executed in this case.proceedings are void only if the restraint is absolute in nature. "Irretrievable breakdown" of marriage is a ground for granting divorce wherein such situation exists where both parties or spouses are not in position or are not able to live together thereby destroying the marital relationship beyond repair The court stated that ‘We believe that the relevant provisions of S. In a proceeding before an Indian court. if it is proved as a matter of fact that the other party to the contract has legal remedy in a foreign jurisdiction.aspx 13 . and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Since partial restraint of the party to limit its legal relief to one court is not against public policy. Hema Chugh. AIR 2013 DEL 139 27 Important case laws related to NRI Marriage. waiver of private rights under a contract is lawful as long as such waiver is not against public policy. in such a case the specific court referred to in the contract should have jurisdiction.nic. then the Indian court would not further interfere in the matter since the plaintiff still has legal remedy albeit in foreign jurisdiction. However. Matrimonial disputes In Pritam Ashok Sadaphule V. available at. residence permanent or temporary or ad hoc." Bringing in the benefit of certainty and predictability of law. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. forum. (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. the Court said that the aforesaid rule with its stated exceptions has the merit of being just and equitable.(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married. proper law etc. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile. (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married. and ensuring certainty in the most vital field of national life and conformity with public policy. It does no injustice to any of the parties. 14 . nationality. In this context the justifiability of the conflict of law rules is a major issue. the so called custom. 15 . Various courts have considered public policy as unruly horse or untrustworthy guide. moral principles are intermixing. then it is mere a principle or tool in the hands of the judiciary which has to be carefully used because the fundamental purpose of judiciary is ‘justice’ and want of justice is the rights of the parties under dispute which should not be under mined. In any matter the rules governs the the dispute between the two parties where one of them may have his or her rights in certain state but these rights would be compromised just because certain state does not recognize his or her right on the grounds of public policy. Anything that hurts collective consensus is against the 'Public Policy' or any Act in violation of law shall be considered against the 'Public Policy. Though the term is not well defined the scope of the term is determined by the judicial interpretation but the whole idea of the application of public policy seems to be blur in the present scenario.CONCLUSION Public Policy could be defined as what is good for the public or in public Interest or what would be injurious or harmful. where the social norms. tradition. The parties of such in such critical dispute then have to be cautious because the manner of justice by various courts would vary. Surely what would be the public policy is beyond codification. com/brief/3/3204/determining-governing-law-andjurisdiction-in-acontract Important Case Laws related to NRI marriages.aspx 16 . Laws on Public Policy of India and its Impacts on Arbitration Awards in Construction Industry C K TAKWANI. available at: http://ncw.. Lexis Nexis Butterworths Wadhwa Nagpur KB AGRAWAL & VANDANA SINGH.REFERENCES JJ FAWEEET& PM NORTH. Conflict of Laws.P GUPTA. Civil Procedure with limitation Act 1963.in/frmnriimpcaselaws. Cheshire & North’s Private International Law. 7th Ed. Oxford University Press ATUL M SETALVAD. Eastern Book Company SIDDHARTH SHARNKER & PALLAVI PURI. Asia Law House. NATIONAL COMMISION FOR WOMEN. 13th Ed. . Determining Governing Law And Jurisdiction In A Contract. Hyderabad O. Private International Law in India. 2nd Ed.nic..available at: http://barandbench.
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