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

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

TABLE OF CONTENTS
S.no.
1

CONTENT
INTRODUCTION

PAGE
3

DOCTRINE OF PUBLIC POLICY

COMITY V PUBLIC POLICY

SCOPE OF DOTRINE OF PUBLIC POLICY

JUDICIAL INTERPRETATION OF DOCTRINE OF PUBLIC

POLICY, INDIAN CASES

6

CONCLUSION

13

REFERENCES

14

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 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.
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 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;
(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;
(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.

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
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, Hyderabad
4

is regarded as having merely a negative function, that of justifying the non-application of 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 Pipes 6 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 Sheikh 7, 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
5 JJ FAWEEET& PM NORTH, Cheshire & Norths Private International Law, 123,13th Ed. Oxford UniversityPress

6 Oil and Natural Gas Corp Ltd. v Saw Pipes Ltd., AIR 2003 SC 2629
7 Mafizuddin Khan Chaudhary v Habibudin Sheikh, AIR 1951 Cal 336
8 P Rathinam v Union of India, AIR 1994 SC4884
5

different or different approach have been adopted, then the public policy in the matter of LGBT
rights would entirely have been different.

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 Nagpur
10COMITY, available at, http://conflictoflaws.uslegal.com/comity/#sthash.QXWFoH9v.dpuf
7

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
11 AIR 1994 SC 860
12 Private international law in india adequacy of principles in comparison, FE Norohna80
13 Kolaparti Venkattareddy v Kolapartipeda venkatachalam AIR 1964 AP 465
14 Ratanchand Hirachand v Ashok Nawaz Jung, AIR 1976 AP 112
9

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
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

15 Central water inland transport corporation ltd v Brojonath Ganguly, (1986) 60 Comp. Cas 797 (SC)
16 Rastanchand Hirachand v Ashok Nawaz Jung, AIR 1976 AP 112
17 Gulabchand Gambhirmal v Kudilal Govindram, AIR 1959 MP 151
10

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 Holding 20, 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.

18 Kenchava v Girimalappa Channapa, AIR 1924 PC 209

19 ATUL M SETALVAD, Conflict of Laws, P. 113, 2nd Ed., Lexis Nexis Butterworths Wadhwa Nagpur
20 Technip SA v SMS Holding, (2005) 5 SCC 465
11

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
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) Ltd 24 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
21 Raman Chettiar v Raman Chettiar, AIR 1954 Mad 97
22 Delhi clothes & General mills co ltd v Harnam Singh, AIR 1955 SC 590
23 Renusagar power Co. Ltd v General Electronis Co. Ltd.AIR, 1994 SC 860
24 Hakam Singh v. Gammon (India) Ltd, AIR 1971 SC 740
25 British Steam Navigation, 1990 2 Comp LJ1 SC
12

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
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:

26 Pritam Ashok Sadaphule V. Hema Chugh, AIR 2013 DEL 139

27 Important case laws related to NRI Marriage, available at,
http://ncw.nic.in/frmnriimpcaselaws.aspx
13

(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."
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.

14

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.

15

REFERENCES
JJ FAWEEET& PM NORTH, Cheshire & Norths 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-acontract
Important Case Laws related to NRI marriages, NATIONAL COMMISION FOR
WOMEN, available at: http://ncw.nic.in/frmnriimpcaselaws.aspx

16