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Report No. 65

Chapter 17

Public Policy

I. Introductory

17.1. Introductory.-

Public policy constitutes another possible exception in regard to the recognition of foreign judgments.

17.2. Public policy not a definite expression.-

It must be stated, at the outset, that public policy may not be a very precise ground for non-recognition.1 The expression "public policy" is not a very definite one. In broad terms, however, it may be described as a reflection of the general ideological approach of the legal system.2

Edwin W. Patterson3 points out that "policy", in its etymological significations, refers to plans for governmental action rather than to moral or ethical principles. However, the expression is now familiar, and almost all legal systems have some provision or other for not recognising foreign judgments on the ground of "public policy" or "order public" or some similar concept. The details and names may differ, but the concept is substantially the same.

1. Freud Reflection of Public Policies in the English Conflict of Law, (1954) 39 Transactions of Grotius Society 38, 83.

2. Winfield Public Policy, (1929) 42 Harvard Law Review 76.

3. Patterson Jurisprudence, (Brookyln, 1953), p. 282.

The aspect of public policy was mentioned in Satya v. Teja, AIR 1975 SC 104 (115), para. 38, where the Supreme Court observed-

"38. As we have stated at the outset, these principles of the American and English conflict of laws are not to be adopted blindly by Indian courts. Our notions of a genuine divorce and of substantial justice and the distinctive principles of our public policy must determine the rules of our private international law. But an awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining these rules. We are sovereign within our territory but "it is no derogation of sovereignty to take account of foreign law" and as said by Cardozo J.,

"We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home"; and we shall not brush aside foreign judicial processes unless doing so 'would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.' [Loucks v. Standard Oil Co. of New York, (1918) 224 NY 99 ( 111).]"

The various approaches to public policy have been described more otten than once,1 and we shall also refer to them later2. The concept is essentially elastic. In a case where the matter is not governed by a statute or by clear established principles, the consideration of what is "public policy" must necessarily involve the balancing of advantages against disadvantages,3 to the community at large, in the light of current notions of propriety.

1. (a) Norman March Severance of Illegality, (1948) 64 LQR 230 (347);

(b) Mussbaum Public Policy in Conflict of Laws, (1940) 49 Yale 14 1027;

(c) Knight Public Policy in English Law, 38 LQR 207.

2. Paras. 14.11 to 14.14, infra.

3. Apt. v. Apt., (1947) 2 All ER 677 (Cohen, LJ.).

17.3. Public policy not concerned with the ideal.-

Public policy is not concerned with what ought to be the law. Winfield1 pointed out long ago, that while some ethical standard may be discoverable in judicial legislation, it will not be found in public policy. That doctrine, he said, may answer the question, "What is it that the community wants now?" It is dumb before the question, "What is it that an ideal community ought to want?"-

"A judicial decision on public policy will give us something more subtle that the common place of a Greek tragic chorus, but it will not soar to the ideal of the citizens in Plato's Republic, and, if one may say so without impertinence, nothing but danger and confusion could result if the judges made any such attempt. Our common law is at such a mature age now that the lines of its trunk are settled, whatever may be the direction of its new branches".

1. Winfield Public Policy, (1929) 42 Harvard Law Review 76 (87).

17.4. History of public policy.-

As to public policy, it is not surprising to find contradictory opinions expressed as to its value by different judges, or even by the same judge on different occasions1 In 1824, in the Court of Common Pleas and Court of the King's Beach,2 there are dicta which are not easy to reconcile. In the King's Bench case, Abbott, C.J. not only took public policy as he found it, but carried it a step further than it had gone before him.3 In the Common Pleas case4, on the other hand, Best, C.J. thought that the courts had gone much further than they were warranted on questions of policy, and that where such questions were doubtful, thy ought to be left to the legislature. It was in the same case- Richardson v. Mellish, (1824) 2 Bing 229-that Mr. Justice Burrough took a similar view and used the expression "unruly horse"-a phrase which he is said to have borrowed from Chief Justice Hobart and which has now been quoted times out of number.

1. Winfield Public Policy, (1929) 42 Harvard Law Review 76 (87).

2. See Plumer V.C., and Eldon L.C., in Vauxhall Bridge Co. v. Spencer, (1817) 2 Mad 356 (365), Abbot, C.J. in Card v. Hope, (1824) 2 B&C 661 (670).

3. Card v. Hope, (1824) 2 B&C 661 (676). While public policy is not mentioned in the judgment, it underlines the decision.

4. Richardson v. Mellish, (1824) 2 Bing 229 (242-243, 252).

17.5. Roman law.-

It was a Roman practice to incorporate, in statutes, a saving clause to the effect that it was no purpose of the enactment to abrogate what was sacrosanct or just.1 Public policy achieves some such result.

1. Winfield Public Policy, (1929) 42 Harvard Law Review 76 (159).7. Winfield Public Policy, (1929) 42 Harvard Law Review 76 (159).

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17.6. Public policy in contracts.-

Public policy in the realm of contracts is well-known. It is recognised in section 23 of the Indian Contract Act, 1872. One hears of public policy in contracts in restraint of trade certainly, as early as Elizabeth,1 and, though, in many of the cases, public policy is not mentioned, or is preferred to only as one of the grounds of the decision, one can safely say that it was clearly recognized by the time of Mitchel v. Reynolds2which was decided in 1711 and was, for a long time, a land-mark in this branch of the law. Various shades of this concept are found in judgments reported in the 17th and 18th centuries.

1. Winfield Public Policy, (1929) 42 Harvard Law Review 76, 85.

2. "Against the policy of the common law", I.P. Wms 181, 183 (1711); "against the policy of the law", ibid., at 187. Cf. "Encounter is necessity del commonwealth", Anon, Moore KB 242 (1586); Claygate v. Batchelor, Owen 143 (1600); "contrary to common good", 'Whet v. Broad, Noy 98 (1619).

17.7. Public policy and the perpetuity rule.-

Then, public policy bulks large in that great decision on the rule against perpetuities, the Duke of Norfolk's case, (1681) "Policy of the Kingdom," Ch Cas I, 20 "inconvenience," ibid., 49, 51. To the question, "where will you stop, if you do not stop here?", Lord Nottingham retorted-"I will tell you where I will stop: I will stop wherever any visible inconvenience doth appear."

17.8. "Conflict of Laws and public policy."-

We have, in the above discussion, drawn some examples from other branches of the law. We shall, in due course, deal with the ambit of public policy in the conflict of laws. But, before we do so, its proper scope in general may be conveniently dealt with, with reference to a few cases.

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