project on federalism

PROJECT REPORT

PROJECT ON FEDERALISM

INTERSTATE COMITY DOCTRINE OF FULL FAITH AND CREDIT

SUBMITTED TO

ANN TRESSA MATHEW SUBMITTED BY SONAKSHI CHATURVEDI

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TRIMESTER

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ACKNOWLEDGEMENT I am deeply indebted to Ms. Ann. Tressa Mathew Asst. Professor, MATS Law School, MATS University, Raipur for constantly guiding and encouraging me to undertake and complete this project. I am thankful for his patient disposition. I am also thankful to Dr G.P. Tripathi, Director, and all other staff of the MATS Law School, MATS University, Raipur for giving me opportunity and facility to complete this work.

Sonakshi Chaturvedi 7th Trimester, B.B.A-LLB

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TABLE OF CONTENTS

Introduction………………………………………………………………4 Chapter 1…………………………………………………………………5 A Brief Introduction About The Doctrine Of Full Faith And Credit\ Chapter 2………………………………………………………………….7 Description of The Keywords Chapter 3………………………………………………………………….8 Status in America Status in Australia Status in India Conclusion…………………………………………………………………12

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INTRODUCTION Federalism is a form of government in which the sovereign authority of political power is divided between the various units. This form of government is also called a "federation" or a "federal state" in the common parlance. These units are Centre, state and panchayats or the municipalities. The centre also is called union. The component units of the union are called variously as states (in the United States of America), Can tolls (in Switzerland), Province (in Canada) and Republic (in former Union of Soviet Socialist Republic). Literally, the word 'federal' means contractual. A federal union is a contractual union. A federal state is a state brought into being through a contractual union of sovereign states. The union of states by conquest cannot be called a federal union.

FEDERALISM IN INDIA Federalism in India has some similarities with that of U.S.A. The Constitution of India like the Constitution of U.S.A, which is the oldest federation, no where uses the term "federation” or "federal union". Both countries have dual polity - one for the Central I Union government: and another for the state government.

This federal character was given by the framers of the Constitution primarily for two reasons: 1) A federal state is more effective than a unitary one when the size of its territory is as large as India. 2) A federal state is more effective than a unitary one when diverse groups of its population live in a discrete territorial concentration as in India. Full faith and credit clause in india is adopted from the article IV of the United States constitution. In 1813, the Supreme Court interpreted this federal statute, in the leading case of Mills v. Duryee.

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CHAPTER 1 A Brief Introduction About The Doctrine Of Full Faith And Credit The provisions of Article 261 (1) and (2) are collectively called "full faith and credit clause. Article 261(1) merely establishes a rule of evidence and does not deal with jurisdiction. Subclause (2) empowers the Parliament to lay down the rule of evidence and also the effect of the acts, records and judicial proceedings by legislation. It appears id me that this clause is not an absolute and unqualified constitutional command. It authorises the Parliament to legislate on the subject. It is argued that under this clause it is the bounden duty of every court situated within the territory of India to execute every decree according to its tenor passed by any court in India. It this were so then every legislative enactment of any particular State would also be equally enforceable in every State within India and such a conclusion to my mind renders the provisions of Article 245 wholly inoperative. Our constitution creates legal units with exclusive jurisdiction to legislate on certain matters and this full faith and credit clause cannot be so construed as to compel one State, to yield its own law and policy concerning its exclusive affairs to the laws and policies of the other States. "A judgment rendered without jurisdiction over the person or the subject-matter is not entitled to the protection of the full faith and credit clause. Such a judgment is entitled to no respect in the state whore rendered, and therefore it is not entitled to respect in other states. Jurisdiction over the person in a proceeding in personam can be acquired either by the service of process or by domicile, or by consent, or by doing acts in the state. If a state has no jurisdiction, there is nothing to which full faith and credit can be given. There is a presumption that a state has jurisdiction. When such a judgment is sued on in a sister state, lack of jurisdiction may be pleaded as a defense." "The faith and credit to be accorded does not preclude an inquiry into the jurisdiction of the Court which pronounced the judgment, or its right to bind persons against whom the judgment is sought to be enforced. Whether or not the Court in whom the judgment was originally obtained, 5

had obtained jurisdiction is to be determined by the Court in which enforcement of the judgment is sought according to generally accepted principles of jurisprudence."1 It is, therefore, clear from these extracts that in America it is always open to a Court enforcing a judgment of another State to examine the competency of the Court rendering it in spite of. the full faith and credit clause.2 In our country conflict of laws on tin's subject has no relevancy in view of the statutory provisions. The American doctrine of due process of law has not been adopted by our Constitution makers and therefore, it cannot be imported into Indian Law. Consequently, the opinion of Willis expressed on the basis of these two principles cannot be adopted in this country. There is no reason why the position adopted in America on the full faith and credit clause be not adopted in this country, particularly when the statutory provisions enforced in various States of India under the Central as well as under the State laws on the relevant date are in consonance with that position.3 When you leave for vacation to another state, you don't worry about whether your driver's license is valid in the state you're heading to, right? You know your valid license gives you driving privileges in every other state. You may not have thought about it in this way, but the same idea works with a divorce So long as certain rules were followed in getting a divorce, the courts in every other state will honor the divorce, either because the US Constitution requires them to honor, or because of a legal principle known as "comity."

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Willoughby , Constitution of the United States http://www.indiankanoon.org/doc/1724478/ Firm Gauri Lal Gurdev Das vs Jugal Kishore Sharma And Another, AIR 1959 P H 265

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CHAPTER 2

DESCRIPTION OF THE KEYWORDS

Full Faith and Credit The Full Faith and Credit Clause of the US Constitution requires each state to honor the public acts, records and judicial proceedings of every other state. So long as the court follows the laws and constitutional requirements of its state, and so long as the decree doesn't violate the laws or public policies of other states, the decree must be recognized and enforced in every other state. For example, a state that doesn't recognize same-sex marriages isn't required to give full faith and credit to such marriages, even if the marriages are legal in another state.

Comity Even if the Full Faith and Credit Clause doesn't apply to a divorce case, a state court may honor the divorce as a matter of comity. Comity is where a court recognizes another court's order or judgment as a matter of courtesy, even though the court isn't legally required to do so. Comity is used most commonly used when it comes to divorces granted in foreign countries. US state courts often honor divorces granted in foreign countries. Comity may come into play between state courts, too, however. For example, a state that doesn't allow for same-sex marriages may honor and enforce a same-sex divorce decree from another state. Likewise, the same court may, out of comity, recognize the marriage so that it can enter a divorce decree and end the same-sex marriage. It's up to the court to decide if a decree will be honored out of comity. A decree given recognition as a matter of comity can have the same effect as one given full faith and credit.

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CHAPTER 3

STATUS IN UNITED STATES OF AMERICA ARTICLE IV SECTION 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

SOURCES AND EFFECT OF THIS PROVISION Private International Law The historical background of this section is furnished by that branch of private law which is variously termed „„private international law,‟‟ „„conflict of laws,‟‟ „„comity,‟‟ This comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country, or „„jurisdiction,‟‟ will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or „„jurisdiction.‟‟ 4 Most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country where performed ( lex loci ) is good elsewhere; the rule that contracts are to be interpreted in accordance with the laws of the country where entered into ( lex loci contractus ) unless the parties clearly intended otherwise; the rule that immovables may be disposed of only in accordance with the law of the country where situated ( lex rei sitae ); 1 the converse rule that chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile ( lex domicilii ); the rule that regardless of where the cause arose, the courts of any country where personal service of the defendant can be effected will take jurisdiction of certain types of personal actions, hence termed „„transitory,‟‟ and accord such remedy as the lex fori affords. Still other rules, of first importance in the present connection, determine the recognition which the judgments of the courts of one country shall receive from those of another country.5

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http://www.gpoaccess.gov/constitution/pdf/con007.pdf ibid

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Hampton v. McConnell6, Chief Justice Marshall went even further, using language which seems to show that he regarded the judgment of a state court as constitutionally entitled to be accorded in the courts of sister States not simply the faith and credit on conclusive evidence but the validity of final judgment. Sistare v. Sistare7 A judgment enforceable in the State where rendered must be given effect in another State, notwithstanding that the modes of procedure to enforce its collection may not be the same in both States. Finally, the clause has been interpreted in the light of the „„incontrovertible maxim‟‟ that „„the courts of no country execute the penal laws of another.8‟‟

STATUS IN AUSTRALIA The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia. The Constitution was approved in referendums held over 1898– 1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom. Section 118 of the Constitution which provides: “Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

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3 Wheat. (16 U.S.) 234 (1818). 218 U.S. 1 (1910). Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888)

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STATUS IN INDIA Article 261 in The Constitution Of India 261. Public acts, records and judicial proceedings Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State (2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause ( 1 ) shall be proved and the effect thereof determined shall be as provided by law made by Parliament (3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law Disputes relating to Waters In the case of gaubi singh v.Jugal Kishore9 hon‟ble court stated- In the provisions of articles 261 (1) and (2) are collectively called “full faith and credit” clause. Clause (1) establishes a rule of evidence and does not deal with jurisdiction.it declares that full faith and credit shall be given throughout the territory of India to public acts and judicial proceedings of the Union and of every state. The rule applies to the acts which are valid and good and not to those that are void. 10The expressions „public acts‟ will include both executive and legislative acts of the Government. The expression “public record” will include any official book, register or record made by a public servant in the discharge of his official duties or by any person in performance of a duty specially enjoined by the law of the state in which such book, register or record is kept11. Public records of private documents such as registered deeds of conveyance of property ,a re public documents. The general rule laid down in clause (1) is subject to the power of parliament to lay down by law: 9

AIR 1959 Punj 265 Venkataraman v. C.R.T. Board, AIR 1953 TC 392 11 Section 35 of the Indian Evidence Act, 1872 10

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1. The mode of proof 2. The effects of such acts and proceedings in other state.

Clause (3) provides that final judgments or orders of civil courts in any part of the territory of India shall be executable anywhere within the territory without the necessity of a fresh suit upon the judgment. The rule applies only to civil judgments. It does not require the courts of a state to enforce the penal laws of another state. Clause (3) has no retrospective effect and it was held before the Constitution (7th amendment) Act, 1956 that article 261 could not be availed of for the purpose of pressing an application of execution in the territory then forming part of Part B State where the final judgment of which the execution was sought was given by a court in the territory then forming part of Part A state prior to January 26, 1950.12Clause (3) will only apply to those judgments or orders which were made after Jan 26th, 1950, when constitution came into force.13 in the case Pannalal v. Narhari14 high court of goa decided that no condition of clause (3) that the territory in which the decree passed after Jan 26, 1950 by an Indian court is sought to be executed should also have been a part of the Indian territory on the date of decree.

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Loonaji narain v. purshttam charan, AIR 1953 MB 225 Maloji v. Shankar saran, AIR 1962 SC 1737. 14 AIR 1968 Goa 1. 13

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CONCLUSION India takes great pride in describing itself as the world‟s largest democracy. However, this democracy is meaningful significantly because it is encapsulated in a federal structure. While democracy represents the majority opinion, federalism accommodates and links it to the voice of the minority, lending a flavor of social justice. This ensures harmonious functioning of the entire system. Federalism and cultural and ethnic pluralism have given the country‟s political system great flexibility, and therefore the capacity to withstand stress through accommodation. However, continuation of the same requires not simply federalism, but cooperative and constructive federalism The “union model” of Indian federalism, following the initial reluctance of the Government of India during the pre-1989 period, is showing signs of resilience and flexibility. The federal government is strong, but attempts are under way to strengthen the states through various federal mechanisms for the transfer and sharing of powers. Since the 1990s federalism in India has moved from a situation of conflict to reliance upon consensus, working through federal forums such as the Inter-State Council. Federalism is a union without unity in political terms. I11 India this union is n result\ of devolution of power from the central government to the state governments. The Constitution divides legislative, executive and financial powers between the Union and the states with a tilt towards the Union. The Indian judiciary is integrated but the highest court is also the federal court of the country. The state boundaries are not fin11 and there are occasional Union-state and center-state tensions.

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