The Doctrine Of Judicial Comity In India: Challenges And The Need For A Consistent Approach

However, despite its frequent invocation, the application of judicial comity in Indian jurisprudence lacks clarity. While the principle is well-recognized, there are no universally established thresholds or clear guidelines for when and how it should be applied, leading to varied interpretations across different cases. Additionally, not all aspects of judicial comity are codified within the CPC, further contributing to the need for a more refined understanding and consistent application of this important doctrine.

The Doctrine Of Judicial Comity And Its Theoretical Foundations

The doctrine of judicial comity, also known as 'comity of courts,' or simply 'comity', began to take shape in Europe alongside the development of the Westphalian system. This period marked the solidification of concepts such as the territorial and internal sovereignty of nations and the principle of non-interference.[1] As interactions between nations increased, various transnational issues arose, implicating the legal jurisdictions of multiple countries. In response, the doctrine of judicial comity emerged as a principle of mutual respect and obligation between the courts of different nations. It was essentially developed to address the challenges posed by uncertainties over multiple jurisdictions and to prevent the abuse of judicial processes.

The most widely accepted definition and theoretical foundation for comity was provided by Justice Gray in the landmark case of Hilton v. Guyot (159 U.S. 113, 143 (1895)). He described comity as neither an absolute obligation nor merely an act of courtesy or goodwill. Instead, he explained that comity involves a nation's recognition, within its own borders, of the legislative, executive, or judicial acts of another nation. This recognition is granted with due consideration for international duty, convenience, and the rights of the nation's own citizens or those under its legal protection.

With the end of the Cold War and the rapid pace of globalization, the concept of comity expanded. It evolved into a broad principle of deference, serving as a rationale for restricting domestic jurisdiction in matters of legislation, adjudication, and enforcement.[2]

Definition of the Doctrine and its Contemporary Applications

Doctrine of judicial comity has a very wide understanding. It is generally believed that this doctrine has as many meanings as the notion of sovereignty demands.[3] According to Merriam-Webster's definition, “comity refers to the recognition by courts of one jurisdiction of the laws and judicial decisions of another.” Though this doctrine does not have a precise definition or any threshold of its application, over time, the principle of comity has been utilized by numerous jurists, national courts, and international tribunals in various contexts. Among its applications are the limitation of the scope of municipal law, the recognition of foreign and international judicial decisions, the issuance of anti-suit injunctions, and, the avoidance of adjudicating disputes when parallel proceedings are present.[4] Based on the contemporary understanding of this doctrine, its application can be outlined as follows:

Firstly, domestic courts are obligated not to litigate matters that involve the same cause of action already settled by a foreign court. This application is grounded in the common law principle of res judicata.

Secondly, domestic courts must stay proceedings if a matter with the same cause of action is pending in a foreign court, to avoid parallel litigation.

Thirdly, domestic courts are required to recognize and enforce legal questions or facts that have already been settled by a foreign court. This obligation ensures that judgments from foreign courts are effectuated in the interests of justice, equity, and good conscience.

Fourthly, when considering anti-suit injunctions, courts should respect the principle of comity by carefully evaluating the necessity of such injunctions against the potential disruption of foreign legal proceedings. This approach aims to prevent jurisdictional conflicts, foster international judicial cooperation, and ensure that litigants are not unfairly denied access to appropriate foreign forums.

Comity In Indian Jurisprudence

When it comes to the recognition of this doctrine in Indian jurisprudence, not all of its aspects have been codified in the Civil Procedure Code (CPC). Some sections of the CPC reflect certain principles of judicial comity, while others are plainly restricted or remain uncodified. For instance, the principle aimed at avoiding re-litigation, which is essentially a principle of res judicata, has been codified under Sections 13 and 14 of the CPC. These sections empower Indian courts to presume a foreign judgment to be conclusive in order to avoid re-litigation, unless it falls under specific exceptions such as lack of jurisdiction, absence of a decision on the merits, errors in applying international or Indian law, violation of natural justice, fraud, or support of a claim contrary to Indian law.

However, the second aspect of judicial comity, concerning matters that are sub judice before a foreign court, is explicitly not permitted under Section 10 of the CPC. The explanation to Section 10 allows an Indian court to try a suit even if another suit with the same cause of action is pending in a foreign court. Regarding the recognition and enforcement of foreign judgments, this is permitted under Section 44A of the CPC, with the restriction that the foreign court must be situated in a reciprocating country. This section authorizes a district court to enforce a 'decree' from any superior court of a foreign reciprocating country. Currently, India has bilateral treaties with 13 countries for the reciprocal enforcement of judicial decrees.

In light of these statutory provisions, it is essential to examine how consistently the Indian judiciary has applied the principle of judicial comity. The following analysis of recent Supreme Court and High Court rulings from the past few years aims to assess this consistency.

Indian courts have frequently engaged with cross-jurisdictional cases, thereby inviting the application of judicial comity. Recently, the Calcutta High Court, in the case of Uphealth Holdings, INC. v. Dr. Syed Sabahat Azim and Ors. (2024 SCC OnLine Cal 6311), held that the moratorium order of the U.S. bankruptcy court, which is still ongoing and not yet finally settled, would not prevent an Indian court from staying the proceedings before it on the same cause of action. The court applied Section 44A of the CPC and observed that since the U.S. is not a reciprocating country, the application of the doctrine of judicial comity could be exempted.

Apart from the miscellaneous cases, Indian courts have dealt with judicial comity mainly with respect to child custody cases hanging between 2 jurisdictions, and cases relating to anti- suit injunction.

Judicial comity and cross-jurisdictional child custody matters

In a recent judgment by the Bombay High Court in the case of X v. Y (2024 SCC OnLine Bom 447), the court held that in cross-jurisdictional matters involving the custody of a child, where the child is a foreign citizen and the case is pending in a foreign court, the domestic court should prioritize the best interests of the child over the doctrine of judicial comity. This means that, even at the cost of parallel proceedings, the domestic court should proceed with adjudicating the case to determine which jurisdiction would better serve the child's interests. This is an exception carved out to so as to balance the interests of child and judicial comity. Similar view was also taken by the Telangana HC recently in Tarannum Naz v. State of Telangana (2023 SCC OnLine TS 2712).

In India, cross-jurisdictional child custody cases often conflicted with the doctrine of comity, as the welfare of the child was seen as being at odds with this doctrine. There was a clear need for guidelines to help courts navigate these issues. The Supreme Court addressed this in the case of Surya Vadanan v. State of Tamil Nadu ((2015) 5 SCC 450) that in cross-jurisdictional child custody matters, the 'welfare of the child' should take precedence. The doctrine of comity may be set aside if compelling reasons exist, as was the case in this particular situation.

Judicial comity and anti-suit injunction matters

Courts have also dealt with judicial comity when dealing with cases related to grant of anti-suit injunction. Anti-suit injunction is an injunction which authorises a court to restrain a party to institute a suit in another jurisdiction. This kind of injunction essentially interferes with jurisdiction of a foreign country, but with the aim to restrict parallel proceeding. Thus, while granting this, courts should intend to meet the ends of justice while simultaneously complying with judicial comity.

In this context, the Delhi High Court, in the case of X v. Y (2024: DHC: 2-DB) denied the husband's request for an anti-suit injunction against his wife, thereby allowing her to proceed with her case in the Judicial Circuit Probate Court of the State of Michigan. The court reasoned that the proceedings initiated by the wife in the U.S. were neither vexatious nor would the husband suffer grave injustice if the anti-suit injunction were not granted, both of which are essential conditions for such an injunction. The court further emphasized that when exercising the power to issue an anti-suit injunction, due regard must be given to the doctrine of comity of courts. In making its decision, the court relied on the Supreme Court ruling in Modi Entertainment Network and Another v. W.S.G. Cricket Pte. Ltd. ((2003) 4 SCC 34) which observed that respect must be afforded to the forum where the case was originally registered and is ongoing, in compliance with the principles of judicial comity.

However, there have been instances where courts have not adhered to judicial comity when granting anti-suit injunctions. This issue has been further complicated by the recent emergence of anti-anti-suit injunctions, which effectively nullify the anti-suit injunction issued by a foreign court. When a domestic court grants an anti-anti-suit injunction, it asserts its sovereign authority and protects its citizen's interests. Yet, such an injunction, along with any subsequent proceedings, may ultimately hinder justice for both parties involved. This approach undermines the doctrine of judicial comity, where courts in one country respect and give effect to the decisions of courts in another country—not out of obligation, but out of mutual respect and courtesy.

In March 2021, the Delhi High Court issued India's first anti-anti-suit injunction in the case of Interdigital Technology Corporation and Others vs. Xiaomi Corporation (I.A. 8772/2020 in CS(COMM) 295/2020) setting a precedent that could lead to further inconsistency in the application of judicial comity. The court in this case held that if a foreign court's anti-suit injunction unfairly deprives a plaintiff of the right to pursue a legitimate case in their home country, the domestic court has a duty to protect the plaintiff from the harmful consequences of that injunction. The court further observed that 'no consideration of comity of courts can stand in the way of the court protecting such a plaintiff.'

Critical Assessment and Path Forward

Surveying the recent Indian cases, it appears that the Indian jurisprudence's engagement with judicial comity has been inconsistent and evolving. While the principle of comity is recognized, its application varies across different types of cases and courts.

In some areas, Indian courts have shown respect for judicial comity. For instance, in cross-jurisdictional child custody cases, the Supreme Court has provided guidelines that balance the welfare of the child with the principle of comity. The court in Surya Vadanan held that while primacy should be given to the child's welfare, comity should be respected unless there are compelling reasons to deviate from it.

The area of anti-suit injunctions presents a particularly complex picture. While some courts, like the Delhi High Court in X v Y, have emphasized the importance of respecting comity when considering anti-suit injunctions, there are many instances where courts have issued such injunctions without due regard for comity. The emergence of anti-anti-suit injunctions, as seen in the Interdigital Technology Corporation case, further complicates matters, potentially undermining the principle of comity in favour of protecting domestic interests.

Further, provisions like section 10, which completely undermines judicial comity by allowing domestic courts to take up matters sub judice in foreign courts, are problematic. It heightens the risk of conflicting judgments across jurisdictions, leading to legal uncertainty and enforcement challenges. Furthermore, it results in an inefficient allocation of judicial resources, as multiple courts simultaneously adjudicate identical matters. Perhaps most critically, it imposes an onerous burden on litigants, compelling them to mount parallel defences in diverse legal systems, a task both financially and logistically daunting.

Though the tool of anti-suit injunction could potentially solve this, it can be used only at a later stage. Further, these injunctions can be viewed as an aggressive assertion of jurisdiction that may strain international relations and undermine judicial comity. They often lead to reciprocal actions, such as anti-anti-suit injunctions, escalating jurisdictional conflicts rather than resolving them. Moreover, the use of anti-suit injunctions is reactive and case-specific, failing to provide a consistent, predictable framework for handling parallel proceedings.

Thus, a reconsideration of Section 10 of the CPC is imperative. At the very least, the provision could be amended to acknowledge and respect ongoing proceedings in courts of reciprocating countries. A more nuanced approach would involve granting Indian courts discretionary power to stay proceedings based on pertinent factors such as the stage of foreign proceedings, the case's connection to each jurisdiction, and broader considerations of justice and equity.

To conclude, it's essential to emphasize the need for consistency across all aspects of judicial comity. The inconsistencies highlighted in this article, particularly in Indian jurisprudence, demonstrate how varied interpretations and applications of judicial comity can lead to legal uncertainty, conflicts in jurisdiction, and undue burdens on litigants. Ensuring consistency in the application of judicial comity is not merely a matter of adhering to international standards but also of fostering a more predictable and fairer legal environment. This consistency should be reflected in legislative reforms, judicial decisions, and the overall approach of courts to cross-jurisdictional matters. By doing so, the judiciary can better respect the principles of judicial comity while safeguarding the interests of justice, equity, and efficiency within the domestic legal system.

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