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Report No. 69

V. Constitutionality of Foreign Law

The difficulties which face the courts and the parties when seeking to ascertain and to prove foreign law are well known, but a special problem which may arise in the course of this process has attracted little attention, especially in Anglo-American law1.

The special problem has its basis in the hierarchical structure of rules in certain legal system. According to English law and according to a number of other legal systems, a rule once established, cannot be challenged as to its validity. According to a few other legal systems. However, such as those of India, Canada, Germany, Italy and the United States, the process of ascertaining the rule applicable in a particular case may present two separate questions, which must be examined consecutively. The first concerns the content of the rule which applies in the circumstances. The second is whether the rule so ascertained is valid or invalid according to the overriding principles of the foreign constitution within the framework of which the relevant rule of foreign law operates2.

Thus, for example, in a case involving matrimonial property relations, if may be found that the law of country X applies. The relevant rule of that country is clear. Yet, one of the parties may argue that it violates the principle of the equality of the sexes as laid down by the constitution (of the foreign country) the law of which is applicable and has been proved, and that the rule itself is accordingly, invalid. In these circumstances, the question arises whether the courts of the country where the action is brought may take it upon themselves to pass upon the validity of the rule of foreign law in the light of foreign constitutional law. On a lower level, the same problem is posed, if the rule of foreign law is to be found in a delegated legislation and if it is contended that such legislation contravenes an enabling Act of the lex causa of the foreign country3.

Finally, it may be contended that the applicable rule of foreign law violates a precept of public international law and that the constitution of the foreign country concerned, by an express provision, invalidates all provisions of its domestic law which are contrary to principles of public international law accepted by the State4. This is, in broad terms, the problem that could arise. Dr. Mann, after discussing the authorities, observes5 in this connection-

"The sound method is to put a judge who has to apply foreign law in the position of his foreign opposite number and therefore to allow him to inquire into the validity of foreign legislation within the limits set by the foreign law. There are countries where the privilege to examine the constitutional validity of legislation is reserved to special courts whose decisions are binding on all courts of ordinary jurisdiction; in such cases the English Judge cannot, of course, assume the task of that special court, but must treat the statute in the same way as the regular judge of the foreign country would do.

On the other hand, the fact that the lex fori precludes the judge from examining the constitutional validity of his own country's legislation does not put him under a disability to do so in a case where foreign law applies; where such rule exists, e.g. in this country (England) on in France, it has its foundation in the municipal constitutional law of the country, but cannot be described as having a procedural character so as to impose itself even where foreign law is applicable. Attention may be drawn to the fact that the validity of Russian decrees was to some extent examined in Hussian Commercial and Industrial Bank v. Comptoir D' Escompte do Mulhouse, 1925 AC 112 (125) per Lord Cave; Princess Paley Olga v. Weisz, (1929) 1 KB 718 (731) per Sankey L.J., page 735 per Russell L.J., page 735 and counsel's argument on page 720."

We do not suggest any change in the law in this regard. The above discussion lerely describes the position.

1. See Dr. K. Lipstein in (1967) British Year Book of International Law 265.

2. Dr. K. Lipstein in (1967) British Year Book of International Law 265.

3. Dr. K. Lipstein in (1967) British Year Book of International Law 265.

4. See, e.g. the Constitutions of the German Federal Republic, Art. 100; Constitution of Italy, Arts. 134, 136; Constitution of Austria, Arts. 89, 140.

5. Mann Sacrosanctity of Foreign Act of State, 59 LQR 155, 157.

VI. British Statutes as to Evidence of Foreign Law

One of the modes of ascertaining foreign law may now be dealt with. We may note that in a previous Report of the Law Commission1 dealing with British statutes applicable to India, the Commission made a recommendation that the question of incorporating in our law the provisions of the British statutes, should be considered. The substance of the recommendation was that the provisions as to ascertainment of British law and foreign law, contained in the two British statutes, could be engrafted in our law. The two British statutes were the British Law ascertainment Act, 1859 and the Foreign Law Ascertainment Act, 1861. The former meant for British Dominions; the latter is meant for foreign countries, and is Winded on international conventions between U.K. and foreign countries.

Under the statutes cited above, an Indian Court can refer a question of British or foreign law to a superior Court outside India. In order that our Courts may easily understand that they possess this power, the Evidence Act, it was 'commended, should refer to the statutes cited. It was also pointed out that so ET as the statute of 1861 is concerned, a fresh arrangement between India and the )reign countries would be necessary, if we want to enact a similar law of our own.

Now, the statutes cited have not been repealed by the British Statutes (Application to India) Repeal Act.2 Therefore, it is desirable to adopt the relevant provisions, with such modifications as are appropriate. We are of the view that the provisions of these statutes are useful, and should be adopted in substance Whether they should be incorporated in the Evidence Act or elsewhere, is matter of detail, which we leave to the draftsman. Our own view is, that separate legislation would be more convenient, having regard to the detailed nature of the provisions that may have to be incorporated.

1. Fifth Report (British Statutes Applicable to India).

2. The British Statutes (Application to India Act, 1960) (58 of 1960).

VII. Power of the Court

We have another suggestion to make with reference to foreign law, which concerns the power of the court. Foreign law is usually proved by experts, but the Evidence Act is silent as to the power of the court to investigate the question. Such a power appears to be needed, in the interests of justice. It need not be a duty) but there should be a power exercisable in appropriate cases. The rule in the U.S.A. on the subject may be usefully cited.1

The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under rule 43. The court's determination shall be treated as a ruling on a question2of law.

1. Rule 44.1, (latter half) (Federal Rules of Civil Procedure); 34 Lawyers' Edn. 2d, p. ccvi.

2. Rule 43, refers to testimony.

VIII. Recommendation

In the light of the above discussion, we recommend-

(a) insertion of a provision requiring that notice to be given where a party in a civil case desires to raise a question of foreign law;

(b) incorporation of the substance of the British Statutes of 1859 and 1861, into our statute law;

(c) insertion of a provision enabling the court to look at the relevant material relating to foreign law, where it considers such a course necessary in the interests of justice.

The second point mentioned above1 may be preferably inserted in a separate law. The first and third could be inserted in the Evidence Act, as section 45. somewhat on the following lines:-

(1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country shall give notice in his pleading or other reasonable written notice.

(2) The court, in determining a question of foreign law, in any case may, after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decision of the court shall be treated as a decision on a question of law.

1. Para. 18.33, supra.

Indian Evidence Act, 1872 Back

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