APPLICATION OF DOCTRINE OF PUBLIC POLICY IN CONFLICT OF

LAWS

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

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ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind

support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to my subject lecturer Asst Prof. 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.

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.

Thank You

Shruti Kamble

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TABLE OF CONTENTS

S.no. CONTENT PAGE

1 INTRODUCTION 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

POLICY, INDIAN CASES

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6 CONCLUSION 13

7 REFERENCES 14

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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. When a foreign

element is involved in a case then the choice of law remains the question of concern. 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. 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. 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. In Indian context the essence of doctrine of public

policy is found in Section 13(f) of the Civil Procedure Code 19081 which suggest that the foreign

judgment is not conclusive where it sustains a claim founded on breach of any law force in India.

The expression ‘any law in force in India includes public policy as one of the factor. 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’.

113. 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 ofthem 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;(c) where it appears on the face of the proceedings to be founded on an incorrect view of international lawor a refusal to recognise the law of India in cases in which such law is applicable;(d) where the proceedings in which the judgment was obtained are opposed to natural justice;(e) where it has been obtained by fraud;(f) where it sustains a claim founded on a breach of any law in force in India.

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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. These laws are the result of the various factors like norms, custom, culture, tradition,

morals, principles etc. 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, which was grown up

gradually with the growth of the nation, necessarily acquires some fixed principles, and if it to

maintain these principles, it must be able on the ground of public policy or some other like

ground to suppress practices which, under every new disguises, seek to weaken or negative

them.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. 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. Anything that hurts collective consensus is against the 'Public Policy.' Hence the Acts in

violation of law shall be considered against the 'Public Policy.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. It is also one of the most important criteria for

acceptance or exclusion of foreign legal proceeding in any country.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. Certain foreign laws and institutions seem so repugnant to English notions and

ideals, that the English views would prevail in proceeding.5 English court would refuse to apply a

law which outrages its sense of justice and decency. Most frequently the doctrine of public

policy is regarded as having merely a negative function, that of justifying the non-application of

2 History of English law, Vol. 111, P.55

3 O.P GUPTA, Laws on Public Policy of India and its Impacts on Arbitration Awards in Construction Industry

4 KB Agrawal & Vandana Singh, Private International Law in India, 78, Aisa Law House, Hyderabad5 JJ FAWEEET& PM NORTH, Cheshire & North’s Private International Law, 123,13th Ed. Oxford UniversityPress

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a "foreign" law, which ought to govern "on principle." Others assign to it also a positive

function, according to which duties may be imposed contrary to those that would result from the

application of the general rule.

Public Policy A Vague Term

In Oil and Natural Gas Corp Ltd. v Saw Pipes6 it was held that public policy connotes some

matter which concerns public good and the public interest. Expression does not admit of precise

definition. Concept of public policy is considered to be vague, susceptible to narrow or wider

meaning depending upon the content in which it is used.

In Mafizuddin Khan Chaudhary v Habibudin Sheikh7, Public policy has been described as an

unruly horse. It is a vague and perhaps an unruly term. Rules of public policy do not belong to a

fixed or customary law; 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, varying

and uncertain, the court described it as untrustworthy guide or unruly horse.

Thus the series of cases which has tried to elaborate or confine the term public policy suggest

that, the concept is subject to the judicial interpretation or how a judge at the time of adjudication

responds to a matter. In the present scenario where the nation and their culture and values cannot

be put into a watertight compartment, even the moral values could be borrowed from the other

state. The moral principles change from time to time and person to person and so as the public

policy. An example could be taken as of the NAZ foundation case which prohibited any LGBT

relationship, where there were conflicts regarding LGBT rights, had the judge who adjudicated

the matter been young or from some different background, might the decision would have been

different or different approach have been adopted, then the public policy in the matter of LGBT

rights would entirely have been different.

6 Oil and Natural Gas Corp Ltd. v Saw Pipes Ltd., AIR 2003 SC 26297 Mafizuddin Khan Chaudhary v Habibudin Sheikh, AIR 1951 Cal 3368 P Rathinam v Union of India, AIR 1994 SC4884

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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. Comity specifically

refers to legal reciprocity, the principle that one jurisdiction will extend certain courtesies to

other nations, or other jurisdictions within the same nation.  Doctrine of Comity of nations is the

basis for applying the principles of conflict of laws, the better view appears to be that the basis is

the need to do justice to the parties. 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.9 This is particularly done by recognizing the validity and effect

of their executive, legislative, and judicial acts.  The term refers to the idea that courts should not

act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. A

presumption that other jurisdictions will reciprocate the courtesy shown to them is a part of

comity.  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.10

Where the doctrine of comity of nations puts and obligation over the nations to respect the laws

of other nations, which extends to application of foreign laws in matter involving foreign

element to the execution of a foreign judgment, doctrine of public policy is an exception to it.

Nothing can be adopted by a State which is derogatory to the principles formulated and adopted

by it since time immemorial. 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.

But such compromise cannot be done overlooking the matter of public policy. Nothing can be

accepted and executed by the State which opposes its principles. Thus Policy is kept at the higher

place as compared to any other matter.

9 ATUL M SETALVAD, Conflict of Laws, p5, 2nd Ed., Lexis Nexis Butterworths Wadhwa Nagpur10COMITY, available at, http://conflictoflaws.uslegal.com/comity/#sthash.QXWFoH9v.dpuf

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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. If the interpretation is liberalized then it would

undermine the principle of comity of nation as it would turn widely inclusive. In Renusagar

Power Co Ltd. v General Electric Co. Ltd11, 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. The court suggested that the application of doctrine of public policy in the field of

conflict of laws is more limited. 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. 12 Public policy

does not have any specific definition. Whatever tends to result in injustice of operation, restrain

of liberty, 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,’ 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.’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. It has also been

accepted that the public policy is not a static concept. Public policy connotes some matter that

concerns public good or is in public interest, also what would be harmful or injurious to the

public good or public interest has varied from time to time.15 The SC has added that going by

prevailing social circumstances, an agreement having tendency to injure public interest or public

11 AIR 1994 SC 86012 Private international law in india adequacy of principles in comparison, FE Norohna8013 Kolaparti Venkattareddy v Kolapartipeda venkatachalam AIR 1964 AP 46514 Ratanchand Hirachand v Ashok Nawaz Jung, AIR 1976 AP 11215 Central water inland transport corporation ltd v Brojonath Ganguly, (1986) 60 Comp. Cas 797 (SC)

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welfare is opposed to public policy.16 The courts have come to regard the doctrine of public

policy as extending also to harmful tendencies. If the object of any contract has harmful

tendencies, the contract would be void as contrary to public policy.17

16 Rastanchand Hirachand v Ashok Nawaz Jung, AIR 1976 AP 11217 Gulabchand Gambhirmal v Kudilal Govindram, AIR 1959 MP 151

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V

JUDICIAL INTERPRETATION OF DOCTRINE OF PUBLIC POLICY,

INDIAN CASES

Succession:

It is a settled rule in Indian domestic law that no person can benefit from a crime committed by

him, consequently no person can inherit from a person whose death he has caused, this is a rule

of justice, equity and good conscience.18 The question does not seem to have arisen in conflict of

laws situation, but prima facie, where an Indian court is applying a foreign law in a case of

succession of a person, it would not, it is submitted, 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.19

Foreign Takeover regulations

In Technip SA v SMS Holding20, where an Indian company was the subsidiary of French

Company, the question was to be decided was whether another French company had taken over

the French Company on a given date. 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, that French law and regulations were as rigorious as those

of India and differed only marginally, 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. The court therefore applied French Laws.

In Raman Chettiar v Raman chettiar21 it has been held that where the proper law of debt was

Burmese law, a Burmese law enacted to relive debtors would be enforced as it was just and

18 Kenchava v Girimalappa Channapa, AIR 1924 PC 20919 ATUL M SETALVAD, Conflict of Laws, P. 113, 2nd Ed., Lexis Nexis Butterworths Wadhwa Nagpur20 Technip SA v SMS Holding, (2005) 5 SCC 46521 Raman Chettiar v Raman Chettiar, AIR 1954 Mad 97

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equitable. Further in Delhi clothes & General mills co ltd v Harnam Singh 22 the Supreme Court

held that the evacuee property law passed in Pakistan, which governed the debt, could not be

regarded as opposed to public policy as India has enacted similar legislation. Further in

Renusagar power Co. Ltd v General Electronis Co. Ltd.23, 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, 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. 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.

Contracts

In Hakam Singh v. Gammon (India) Ltd24 the Supreme Court of India added legal clarity to the

jurisdiction of courts. 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. However, it clarified that in a scenario

where two courts or more have jurisdiction under the Code to try a suit or proceeding, an

agreement between the parties that the dispute between them shall be tried in one of such courts

is not contrary to public policy. Such an agreement does not contravene Section 28 of the Indian

Contract Act, 1872 (the Act).

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. The apex court considered that clauses which are in restraint of judicial/ legal

proceedings are void only if the restraint is absolute in nature. However, in such a case the

specific court referred to in the contract should have jurisdiction. Since partial restraint of the

party to limit its legal relief to one court is not against public policy, waiver of private rights

under a contract is lawful as long as such waiver is not against public policy, the clause will be

enforceable.

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, then the Indian court would not further 22 Delhi clothes & General mills co ltd v Harnam Singh, AIR 1955 SC 59023 Renusagar power Co. Ltd v General Electronis Co. Ltd.AIR, 1994 SC 86024 Hakam Singh v. Gammon (India) Ltd, AIR 1971 SC 74025 British Steam Navigation, 1990 2 Comp LJ1 SC

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interfere in the matter since the plaintiff still has legal remedy albeit in foreign jurisdiction. The

balance of convenience needs to be looked into by the courts in terms of cross border

transactions and foreign jurisdictions.

Matrimonial disputes

In Pritam Ashok Sadaphule V. Hema Chugh26 the dispute was with respect to this ex-parte

foreign 'decree' that granted divorce on the ground of "irretrievable breakdown" of marriage.

"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. 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, justice, equity and

good conscience, 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. The foreign decree was

dismissed to be executed in this case.

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. The

only three exceptions to this rule were also laid down by the Court itself as follows27:

(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;

(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;

(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."

26 Pritam Ashok Sadaphule V. Hema Chugh, AIR 2013 DEL 13927 Important case laws related to NRI Marriage, available at, http://ncw.nic.in/frmnriimpcaselaws.aspx

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Bringing in the benefit of certainty and predictability of law, the Court said that the aforesaid

rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any

of the parties. 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. 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,

nationality, residence permanent or temporary or ad hoc, forum, proper law etc. and ensuring

certainty in the most vital field of national life and conformity with public policy.

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CONCLUSION

Public Policy could be defined as what is good for the public or in public Interest or what would

be injurious or harmful. 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, where the social

norms, the so called custom, tradition, moral principles are intermixing. In this context the

justifiability of the conflict of law rules is a major issue. 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. The parties of such in such critical dispute then have to be

cautious because the manner of justice by various courts would vary. Various courts have

considered public policy as unruly horse or untrustworthy guide. Surely what would be the

public policy is beyond codification, 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.

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REFERENCES

JJ FAWEEET& PM NORTH, Cheshire & North’s Private International Law, 13th Ed.

Oxford University Press

ATUL M SETALVAD, Conflict of Laws, 2nd Ed., Lexis Nexis Butterworths Wadhwa

Nagpur

KB AGRAWAL & VANDANA SINGH, Private International Law in India, Asia Law

House, Hyderabad

O.P GUPTA, Laws on Public Policy of India and its Impacts on Arbitration Awards in

Construction Industry

C K TAKWANI, Civil Procedure with limitation Act 1963, 7th Ed., Eastern Book

Company

SIDDHARTH SHARNKER & PALLAVI PURI, Determining Governing Law And

Jurisdiction In A Contract, ,available at:

http://barandbench.com/brief/3/3204/determining-governing-law-andjurisdiction-in-a-

contract

Important Case Laws related to NRI marriages, NATIONAL COMMISION FOR

WOMEN, available at: http://ncw.nic.in/frmnriimpcaselaws.aspx

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