R. Vishwanathan v. Syed Abdul Wajid

The first question on this paper is almost always the first question in the syllabus: what is private international law, and what is its nature? The temptation is to answer with a definition borrowed from a jurist and a list of five theories. An Indian answer does better, because the Supreme Court has said in one passage exactly what the subject is and is not, and an examiner reading a paper on an Indian syllabus wants Indian authority for the nature of the subject.

R. Vishwanathan supplies that authority. It is the sentence to open with when the question asks for the definition, the nature, or the distinction between private and public international law, and it is also the sentence that quietly controls three later doctrines — that characterisation is for the lex fori, that procedure is for the lex fori, and that foreign law enters as fact — because all three follow from the subject being municipal law.

This course states the case for the proposition, not for its facts. What it does establish is the setting: the dispute came to the Supreme Court as a private dispute with a foreign element, and the Court used the occasion to state the character of the body of rules it was applying. A second strand of the same litigation, reported under the name R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid, supplies the companion proposition that the competence contemplated by s. 13 of the Code of Civil Procedure is competence in an international sense, and not merely competence by the law of the foreign State in which the court functions.

Do not manufacture facts for this case in an answer. Its examinable content is the passage and what follows from it.

Shah J. stated the nature of the subject in these terms:

"It is not the law governing relations between States. It is simply a branch of the Civil Law of the State evolved to do justice between litigating parties in respect of transactions or personal status involving a foreign element. Its rules in the very nature of things differ from State to State, but by the comity of nations, certain rules have been recognised as common to civilized jurisdictions."

The passage goes on to attribute that convergence also to the work of international conventions.

Read the passage as four propositions, in the order in which they are useful.

One — the subject is municipal, not international. It does not govern relations between States. That disposes of the commonest confusion in the paper, the one produced by the very name private international law, a term coined by Story whose chief drawback is that it invites the reader to treat the subject as a branch of public international law. It is not. There is no supranational source; the rules are the State's own.

Two — it is civil law, and its purpose is corrective. The rules exist "to do justice between litigating parties". That purpose explains why the theory that survives the modern critique is the theory of justice: the practice is grounded not in any formal source for foreign law but in the forum's own duty to do justice in a case with a foreign element.

Three — the trigger is the foreign element. The passage confines the subject to transactions or personal status involving a foreign element. That is the doctrine's entry condition and it is worth saying expressly at the start of a problem answer: identify the foreign element first, because without one the case is an ordinary domestic case.

Four — variation, with convergence. Because each State has its own rules, the content differs from State to State; a Bombay High Court restatement makes the point sharper still, that the principles of private international law "are not universal. They vary from State to State." Convergence nonetheless exists, and the passage names its two engines: the comity of nations, and international conventions. Comity explains the common core; conventions explain the modern unification effort, from the Hague Conference onwards.

The step that earns marks is the fourth, because it lets you show why uniformity of decision is a problem in this subject rather than an assumption. If every State's conflicts rules are its own, the same dispute can be decided differently in two forums, and the doctrines that try to cure that — Savigny's seat of the relationship, renvoi, codification — are all attempts to repair a defect that this passage identifies.

It opens: the definition and nature question; the distinguish private international law from public international law question; any question that asks whether private international law is a separate branch of law. Pair it with the observation that the subject "is not a separate branch of law in the same sense as, say, the law of contract or of tort. It is all-pervading" and may be "sprung like a mine in a plain common law action".

It disposes of: the argument that a foreign rule binds the Indian court of its own force. It does not. The forum's own rule selects, and the foreign rule operates only because the forum's rule directs attention to it. This is the same idea that the course states at its sharpest elsewhere — "The only law applied by the judge is the law of the forum, the only rights enforced by him are those created by laws of the forum" — and it is the seed of the rules that foreign law must be pleaded and proved as fact, that the forum may exclude a foreign rule on public policy, and that a foreign judgment is enforced through a domestic judgment.

Add to it: Y. Narasimha Rao v. Y. Venkatalakshmi for the sources — uncodified and scattered — once you have said what the subject is. The two together answer syllabus heads 1.1 to 1.3 in a single movement.

It does not decide: any choice-of-law rule. It is a statement of nature, not of content. Do not cite it for a proposition about characterisation, renvoi or domicile; cite it for what the subject is, and then let the doctrine follow.