Privy Council An Overview

INTRODUCTION

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.

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Origin and establishment of Privy Council

As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was  the judicial body, which heard appeals from various courts of the British colonies including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the formation of two different Common Law Courts in England. They are:

1.      King-in-Parliament i.e. Court of House of Lords

2.      King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy Council was established during the middle of 16th century. It thus acted as the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were implemented through the means of royal proclamations, orders, instructions etc.

Composition of Privy Council

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system of committees and sub-committees. However, the committees did not have permanent existence and membership and mostly members were the persons with little judicial experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was extended. It also empowered His majesty to appoint certain members not exceeding two. These were nothing but the judges of High Court in British India. Thus some of the members of the Privy Council were the persons versed in Indian Laws.

Appeals from Courts in India to the Privy Council

This can be discussed under following sub-headings.

a)    Charters of 1726 and 1753

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to the Privy Council in England. Where as the Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

b)     The Regulating Act, 1773

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed;

i.            Where the amount involved exceed 1000 pagodas

ii.             Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

c)     Appeals to Privy Council from High Courts

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to Privy Council from all of its judgments except in Criminal matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be so certified by the High Courts.

d)    Appeals from Federal Court in India to Privy Council

The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court was essential.

e)     Abolition of jurisdiction of Privy Council

In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court and also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has been established and is serving as the Apex Court for all purposes in India. It hears appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy Council finally came to an end.

Role of Privy Council

The Privy Council has contributed a lot in development of Indian Legal System. It served a cause of justice for more than two hundred years for Indian Courts before independence. As far as the judicial institution is concerned, the Privy Council was a unique and unparallel among all the Courts round the world. It set the task of ascertaining the law, formulating legal principles, molding and shaping the substantive laws in India. It also helped in introduction of the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of Common Law in India, which forms the basis almost all present Indian laws.

The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which English legal concepts came to be assimilated with the body and fabric of the Indian law. it always insisted on the maintenance of the highest standards of just and judicial procedure, especially in the field if criminal justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a unique contribution to Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as well as Indian public as the highest judicial institution. Some of the principles laid down by the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy Council is binding on the High Courts in India till the Supreme Court has decided otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the contribution of Privy Council is considered as remarkable for the development of Indian Legal System and Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in India.

Drawbacks of Privy Council

In spite this contribution of Privy Council, it suffered from following drawbacks: –

1)      For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2)       The location of the Privy Council was in England far away for common man in India making it disadvantageous.

3)       The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was considered as a symbol of slavery.

4)       All this put the poor man in India in difficult situations for seeking justice.

CONCLUSION

From the above discussion, it reveals that the Privy Council has rendered a meritorious contribution in the development of Indian legal system and judicial institutions. It introduced many fundamental legal principles in Indian legal system. It shaped the judicial institutions in India. As a whole its role is very significant in developing the legal system in India as it exists presently.

Understanding the Law of Sedition

The Famous American Judge ,Justice Oliver Wendell Holmes had declared in 1929 that “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” Our Constitution too accommodates a hateful thought under article 19 (1) (a) subject to the restrictions mentioned therein.  Sedition forms one such restriction. However the lack of understanding of the concept of sedition has several misgivings and has the tendency to color an expression of political dissent as sedition. This coloring is attributable to the definition of sedition under section 124A which makes any expression of disaffection towards existing government seditious . Therefore it becomes pertinent  to dispel the doubts about the situation under which  the law may become applicable  and procedural changes it requires in a developing democratic society to eliminate the fear of prosecution for smooth exercise of the free speech right.

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The offence of sedition in India

The first judicial interpretation of section 124A was rendered in the case of Queen Empress v Jogendra Chunder Bose (1892) wherein the Court defined the offence in the following terms ” If a person uses either spoken or written words calculated to create in the minds of persons to whom they are addressed a disposition not to obey the lawful authority of the government, or to subvert or resist that authority if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers mind, he will be guilty of the offence of attempt to excite disaffection within the section.” The Constituent assembly deliberately removed the word “sedition” from the constitution in the light of the prevailing section 124A and its interpretation relatable to the restriction “in the interest of security of state ”  present in article 19 (2).

Thereafter in the year 1950, the Supreme Court while considering the constitutionality of the laws prohibiting  circulation of certain magazines  in the interest of  maintenance of public order in two cases, Romesh Thapar v State of Madras and Brij Bhushan v Delhi , ruled that “unless a law restricting free speech is directed solely against the undermining of the security of state or overthrow of it,  a law cannot be a restriction on free speech.” However Justice Fazal Ali, dissenting in both cases observed that even speeches or words calculated to breach public tranquility and leading to public disorder be termed as seditious and should be curtailed. The dissenting view was later reflected in the first amendment to Constitution as the words “reasonable” and “public order” were added in the article 19(2).

Eleven year after the first amendment,  the question pertaining to constitutional validity of section 124A came up before the Supreme Court in the case of Kedarnath v State of Bihar (1962). The Court while declaring the law to be valid cautioned that the section shall not be misused to muzzle free speech which is the life of the liberty. The Court while balancing free speech and section 124A stated that only such activities which are intended, or have a tendency to create disorder or disturbance of public peace by resort to violence can be termed as seditious.  The distinction was  further elucidated in the recent case of Shreya Singhal v Union of India which distinguished advocacy and incitement holding that only later could be punished.

Required Changes

The procedural compliance in making an arrest on  mere filing of complaint under section 124A is inevitable and carries the effect of causing “chilling effect” on the right of free expression. We must remember that procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice. If the procedure has the potential of being misused and abused, then it is the responsibility of the legislature and the judiciary to mould it to bring it in consonance with the constitutionally guaranteed rights. The Supreme Court in 2014  in the case of Arnesh Kumar v State of Bihar has issued the guidelines to be followed before making an arrest under section 498A of IPC due to the misuse of the section. Similar guidelines may also be provided in the light of judicial interpretation of section 124A making it obligatory to establish a prima facie case and obtaining of Courts permission before arresting a person under section 124A.

Conclusion

The application of section 124A is subject to  article 19 (2) i.e a speech may be prosecuted for  sedition when it either affects the security of state or carries the effect of stirring people blood to violently overthrow the existing government. The procedural stringency must be reduced to protect bonafide speeches. In absence of incitement, no speech can be curtailed. To know the law is not merely to understand the words, but as well their force and effect. Let arms yield to the gown and Court decide the nature of speeches. It is our duty to protect our fellow citizens right to speak though we may not agree with them. Most problems will be solved if we start believing that people are not wrong but different.

An Amendment to the United States Constitution

Introduction
The United States constitution of America is a system of basic laws as well as principles that describes the rights of American citizens and sets limitations on what government can do and cannot do. The constitution provides the framework for national (federal) government as well as establishes a federal system, whereby duties are divided between the national government, as well as the states’ governments.

One of the central doctrines on which the constitution is created is the separation of powers, which separates the power between three branches of the federal government. The legislative branch (Congress) which has the powers to make laws, the executive branch (which is represented by president, as well as his advisors,) of which has the power to apply the laws, and lastly the judiciary branch (i.e. the supreme as well as other federal courts) which has the power to reverse or dismiss laws that it decides are unconstitutional.

Need for a new Constitution
Immediately after America won independence from Great Britain with its victory in 1783, during the American Revolution, it became evident that the newly formed nation was in need of a strong central government to remain stable. In 1786, a lawyer as well as a politician from New York by the names of Alexander Hamilton called for a discussion on the matter of a constitutional convention. In February 1787, the legislative body of the confederation supported the idea and invited all the 13 states to have their delegates meet in Philadelphia. However, after the creation of the new constitution, it remained vague because that was the main intention of the constitution, so that with time the constitution would grow which in turn would solve many of United States’ current problems that the forefathers could not predict.

Bill of rights
The constitution’s first ten amendments are collectively referred to as the Bill of rights. The bill of rights ranks alongside the declaration of Independence as well as the constitution as one of America’s most treasured documents. The bill of rights was projected in order to appease the fears of the anti-federalists who opposed the constitutional approval.

The bill of rights was created specifically to guarantee the individual rights and freedoms of citizens under the constitution of which included the first 10 amendments. The bill of rights was also reserved for certain powers to the states as well as the public, and limited the governments authority in judicial and other proceedings. In addition, while the amendments were only initially applicable to the federal government, majority of their provisions had stretched to the states by means of the 14th amendment, a process referred to as incorporation. The drafters of the constitution felt it important to put in writing the constitution because they wanted the constitution to reflect their vision and define the most fundamental freedom rights of the people. The constitution they designed was a meant to endure, address specific challenges that would be faced by the nation, establish sustainable foundational principles that would guide the U.S nation into unclear futures.

James Madison pioneered the amendments to the initial United States congress as a succession of articles of legislation. The House of Representatives later on adopted the articles formally on 21 August 1789 and proposed by the joint resolution of congress on 25 September 1789 and became affected on 15 December 1791 as constitutional amendments through the method of approval by three-quarters of the states. Whereas 12 of the amendments were proposed through congress, 10 were only ratified originally by the states. Furthermore, of the two remaining amendments, one was adopted over 200 years later as the 27th amendment, while the other amendment technically remains unresolved before the states.

Originally, the bill of rights included the legal protection for white men owning land, and did not provide similar protection for African Americans and women. In addition, the bill of rights is very significant to the American law and government, and to this day remains a vital symbol of American freedoms.

Evolution of the 2 amendment over time
The second amendment guards the rights to have as well as carry arms. The right to possess arms precedes the bill of rights; the second amendment was established in part, on the right to possess arms within the English common law as well as influenced by the 1689 English bill of rights. The description of this right by Sir William Blackstone was as a supplementary right that supported the natural self-defense rights, oppression resistance, and the civic obligation to act within concert in state defenses. Academic inquest into the scope, purpose, as well as effect concerning the second amendment, has been contentious and has been subject to much analysis. In other words, the bill has not changed through the years since its ratification only the analysis.

The 2nd amendment impetus on social or political movements
The second amendment in other words can be referred to as politics of guns of which has been the impetus of social and political movements. The issue of gun politics in America politics is very controversial. For the last couple of decades, the discussion concerning the availability of firearms in the United States has been described by concerns over the right to have and carry arms of which is found in the second change of the constitution, and the duties of government in preventing crime, as well as death. Strict supporters of gun control cause that wide gun rights stop the government from fulfilling that duty. Supports of gun rights promote firearms for sporting activities, hunting and self-defense. An added motivation is tyranny defense.

Advocates for gun control claim that keeping guns away from the hands of criminals results in communities being safer, while advocates for gun rights claim ownership for firearm by law abiding citizens will reduce crime. Meanwhile, there is an ongoing unresolved debate concerning the relationship between violence and guns. For example, a study in 2003 by CDC (centers for disease control) called for more studies, reason being there was the lack of sufficient evidence to conclude the effectiveness of firearms laws or law combinations reviewed concerning violent results. In addition, with the movement uprising that was in America, of which some resorted to using firearms, the second amendment was in favor of some of the movement groups and hence the misuse and misinterpretation of the second amendment.

The 2nd amendment as a subject of litigation
Since the Supremes’ Court decision in Columbia District v Heller in 2008, the court declared that the second amendment gives an individual the right to have and carry firearms; several hundred cases of the second amendment have been litigated in the federal as well as state courts. The litigation pace has seemingly increased since the 2010 court decision in McDonald v. Chicago city. Despite all the court decisions made, the debate continues between gun control as well as gun rights movements and organizations that are related to it. Furthermore, some of the outcomes have left unanswered issues including whether the 2nd amendment restricts state regulations of firearms, as well as standard for evaluation of constitutionality of laws as well as regulations that impact the right of the second amendment. These issues are going to be subject of future litigation.

Below are several litigation cases

• Cruikshank v. U.S., 92 U.S. 542 (1875)

The first, second amendment court case to reach the Supreme Court was that of Cruishark. This particular case is on occasions misrepresented as showing that the second amendment fails protect a person’s right to have and carry arms. Archetypally, Cruishank is cited out of context by appealing the court held the second amendment is not a right the constitution grants.

• Presser v. IIIinois, 116 U.S. 252 (1886)

In the case, Herman Presser was found guilty of exhibiting armed men without permission from the Illinois state. The court’s ruling was that the states had the power to control as well as regulating military organs including parading activities, and the court further re-affirmed the application of the second amendment as limitation on only the national government.

• Texas v. Miller, 153 U.S. 535 (1894)

Franklin Miller on appeal was convicted of murder claiming that his second, as well as fourth amendment rights, were violated under the fourteenth amendment. Put differently, the court did not take into consideration whether Miller’s rights were violated under the fourteenth amendment, reason being he had not filed such a claim during his initial trial.

• Robertson v. Baldwin, 165 U.S. 275 (1897)

In this case, the court stated in dicta that the laws regulating masked arms had not interfered with the rights to have and carry arms and, therefore, were not in desecration of the second amendment.

• Eisentrager v. Johnson, 339 U.S. 763, 784 (1950)

In this case, the court announced that the fifth amendment due process rights were not an entitlement for enemy combatants because if it was so, then they would be entitled to freedoms of assembly, press, and speech as in the first, second, fourth, fifth, as well as sixth amendments.

• Heller v. Columbia District, 554U.S. 570 (2008)

In this case, the court announced that the second amendment defends a person’s right to have a firearm of which is unconnected with militia service. The citizen can use it in cases like self-protection within the home.

• McDonald v. Chicago, 561 U.S 3025 (2010)

In this case, the court announced that the amendment was incorporated, meaning that the amendment limits local as well as state governments to the same point that it restricts the federal government.

Current interpretation of the 2nd amendment
The second amendment has the distinct feature of being the only bill of rights amendment that has essentially gone unenforced. The Supreme Court has never put down any piece of legislation on grounds of second amendment, in part because justices have disagreed on the intentions of the amendment to protect the right to carry arms as an individual or as a part of the well-regulated militia. In other words, the second amendment has never affected the sitting of the Supreme Court.

2nd Amendment evolution in the modern era as anticipated by the framers
The United States’ constitution second amendment has not changed. It says the same thing today as it did in 1791 and therefore means the exact same thing. The only probable change is the peoples’ interpretation. This is not what the framers anticipated.

Does the second amendment still empower the people as the framers intended?
Yes it does because the second amendment was made to ensure the continuity and flourishing of state militias as a defense means as well as ensure individual rights to possessing firearms.

Freedom restrictions and balance between societal and individual rights
Question now is, does the amendment today have to be adhered to by both tenets. If the decision is made to put away the individual ownership aspect of the amendment, then reinterpreting the amendment will allow for highly restricted gun ownership which in turn will open up to drastic reinterpretation of other basic parts of the constitution. Then should nothing be done, and hence allow unrestricted ownership of guns, then we create a risk of having a gun society, of which is a risk too great to take. So can we have a constitutional freedom to carry arms and still permit restrictions, as well as regulations?

To create a balance, reasonable restrictions are the way forward, recognizing the amendment, but casting it, as has been done with most of the constitution. In any case, the United States has freedom of speech but a person is not able to freely say what they wish to say. One cannot incite violence with consequences. So why can’t gun ownership be the same, regulated without violating of the constitution.

The trick is finding a balance between restricted freedoms and reasonable regulation, as well as unreasonable unfettered ownership as well as unreasonable prior restraint.

Conflict vs. Consensus theory
In the case of the amendments, envisioned by the farmers as well as the evolution, it seems the framers were more bent towards the consensus theory because the social ideology centers on political or economic social systems and that if they were to be a change, it would occur within the social institutions provided of which was not the case because due to the evolution of the amendments, conflicts arose in the form of movement groups all across America. Therefore, it is in order to say that no particular theory paved way for the American people, but it can be said that both Consensus and Conflict theories were in play.

Conclusion
In summary, we can therefore say, we owe the challenges of the constitution a gratitude debt, for, without their criticisms, there would be no bill of rights, Thomas Jefferson wrote, “There is just enough opposition to enforcing the bill of rights adoption, but not enough force to drain the essential energy of the federal government.” George Washington concurred: ” They have given man the rights to the full as well as fair discussion, and gone on to explain them in a very clear as well as forcible manner that has made a lasting impression. “

That being said, the second amendment of the constitution was created in order to protect the rights of persons to have and carry arms. Fast forward to the 20th and the 21st century, the 20th century had considerable debate pertaining to whether the amendment protects individual rights or collective rights while the second amendment in the 21st century has been focus of renewed academic review as well as judicial interest.

In acknowledgment of the necessitate to arm the public as a militia is no longer a concern, but realizing that firearms are a part of the history as well as the culture of America, and Americans need firearms for both personal defense as well as sport. Ownership of guns is a right indeed – but it is also a huge obligation. With the obligation comes the interest of society to make certain that guns are used safely and are used by individuals who are properly trained and licensed. If a consensus is attained on this simple premise, it then will not be too difficult to iron out the details and to find an appropriate compromise.

Private International Law

Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed great PRIVATE INTERNATIONAL LAW importance in the recent past in view of the world becoming a global village.  The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content.  We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles.  While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating.  As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of either of the partners and constant stress in the marital relationship of spouses/couples living abroad with or without children.  Constant stress and matrimonial discord, invariably leads one of the parties to seek redress within the legal system of the country which they have chosen to pursue their dreams.

In very many cases it is not uncommon to find either the husband or the wife or the live in partner or the spouse, to abscond from the foreign soil in order to escape from the legal clutches of the country where they chose to pursue their dreams.  While absconding from the foreign court’s jurisdiction in most cases we can observe that either one or more children of the couple are taken by the parent who absconds and a whole lot of proceedings are initiated in our country i.e. in India relying on the Guardian and Wards Act and other laws relating to family disputes in India.  The aggrieved person domiciled in the foreign country also resorts to getting remedies legally through such courts having jurisdiction to decide issues like custody, child care, protection of children etc. from the courts of the country of domicile.  Resultant outcome is passing of orders of different nature in both countries favoring either of them.  Most of the times both the spouses decide to remain ex-parte in the foreign jurisdiction and orders are being passed in the absence of either of them.

The following case laws from the Hon’ble Supreme Court and other High Courts has stressed the need to redirect the party approaching Indian courts to their respective country of domicile for pursuing legal remedies such as custody of minor children in the absence of any orders being passed by foreign courts.  However if orders have already been passed by foreign courts the party residing in India where the wife or the husband with or without children are directed to pursue, contest and bring to finality the orders regarding custody of children in the foreign court which is the court of the country where the parties had domiciled foregoing their Indian citizenship.

  • Isabell Singh V. Ram Sing and Anr, reported in AIR 1985 Raj 30, – “I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the Respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorized to take the children to the United States of America.”
  • Elizabeth Dinsha -Vs- Arvand M. Dinshaw & Anr, reported in 1987 (1) SCC 42 – “As already observed by us, quite independently of this consideration, we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan.”
  • V. Ravi Chandran –Vs- Union of India & Ors., (2010) 1 SCC 174 – “However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the Jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspect relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest if the child.”
  • Elizabeth Packiam & Another –Vs- State of Tamil Nadu,. CDJ 2013 MHC 3660, – “Finding the petitioners have approached this court with utmost promptitude, that the minors were ordinarily residents of Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the Country of the minors natural habitat to decide upon custody and related issues this court allows this petition.”

“…………as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia.”

Both the parents are found to use minor children either one of them or all of them to some practical advantage in order to settle personal scores.  While doing so either of the parents are often involved in character assassination of their counter parts.  Prejudicing the tender mind of the minor children courts could cause havoc in the psyche of the young kids who are in the company of a single parent either the mother or the father.  Children are taught the worst things about their father or mother living in separation due to forced circumstances to tarnish the image of their counterpart and to boost and show that the parent with whom the child is currently living is the best in the world. To satisfy their personal egos, to wreck vengeance on the other partner, unmindful of the agonizing effect that is being etched on the delicate mind of the young child such acts are consciously pursued by none other than the parents.  Winning legal battles and teaching a lesson to the life partner takes centre stage and priority and the spouses are not afraid of cleaning up their savings to achieve the said goal. Some single parents are seen working overtime to make money for budgeting the legal expenses likely to be incurred in prosecuting and defending proceedings. Children also take undue advantage and increase their demands and requirements knowing fully well that certain requirements of theirs will be met if the parent with whom they are residing is made happy even by accusing the other parent.  Lot of emotional undesirable changes affecting the character of the child in the long run gets registered, nurtured and projected unknowingly.  The words such as co-parenting, single mother, single father etc., have all gained significance due to the recent globalization and opening of career opportunities throughout the world. Courts have also started to consider foreign judgments as binding on parties and in all the above Supreme Court decisions, we find that due respect for a foreign decree is being canvassed and subscribed with the authority by the Apex Court of our country perhaps to curb malicious prosecution, self serving litigation etc.

Even though prescribed provision of Public International Law requires only signatory countries to the treaty to honour their counterpart judgments and decrees, the Supreme Court is still considering the nuances, and changes in the Private International Law has come to the aid of the spouse who had secured appropriate orders regarding custody of children from the competent court.  The Supreme Court would go on to add a phrase “comity of courts” to bring in a host of other countries who are not signatories to the treaty regarding execution of foreign decrees.

Writ of Habeas Corpus generally considered as a remedy for securing a detenu who is in illegal custody of either the law enforcement agency or individuals, is the writ i.e. being invoked by the aggrieved parent against whose wish and consent the minor child has been withdrawn from the country of their domicile to the country of birth of the other parent. Various guidelines have been framed by the Supreme Court and the High Courts as to when and how the writ jurisdiction can and cannot be invoked and courts have always come to the rescue of the aggrieved parent by directing the return of custody of children along with their passports with a direction to the other parent to participate in any proceedings relating to custody in a competent court in the country of their domicile.  The spheres of 2 courts, the applicability of laws regarding jurisdiction, the management of litigation and the urgent interim measures regarding visitation rights of either of the parents pending litigation and the temporary custody are all aspects for which proper and effective legal remedy can be availed by invoking article 226 of the Constitution of India or Article 32 of the Constitution of India either before the Hon’ble High Courts or before the Apex Court as the case may be.  The above mentioned case laws will give enough insight into the legal topic private international law – custody of children/visitation rights and enforcement of foreign decree.