Private International Law And Constitutional Morality In India
- IJLLR Journal
- 5 days ago
- 2 min read
Prem Raj N S B, LLB (Hons), Vinayaka Mission’s Law School, Chennai
Bharaniha A, LLB (Hons), Vinayaka Mission’s Law School, Chennai
Muthusamy E, LLB (Hons), Vinayaka Mission’s Law School, Chennai
ABSTRACT
This research explores the transformative intersection of Private International Law (PIL) and the doctrine of Constitutional Morality, arguing that fundamental values equality, liberty, and dignity should redefine the traditional "public policy" exceptions used in cross-border disputes. While PIL has historically relied on the principles of comity and party autonomy, this study proposes Constitutional Morality as a more objective, value-driven framework that supersedes the vague "heads of public policy" standard. By establishing a fixed set of constitutional imperatives, the research suggests that the legal system can move beyond mere procedural cooperation toward a substantive, value-based approach to international law.
To illustrate this shift, the study analyze landmark Indian judicial decisions, specifically Navtej Singh Johar and Shabnam Hashmi, to demonstrate how Constitutional Morality acts as a "transcendent override." This mechanism empowers domestic courts to invalidate foreign laws or judicial decrees that violate the domestic Grundnorm (foundational legal principles). The investigation focuses on three highfriction areas transnational surrogacy, discriminatory foreign marriage laws, and digital data sovereignty asserting that Articles 14, 15, and 21 of the Indian Constitution necessitate a departure from strict territorialism in favor of protecting individual rights across borders.
Finally, the paper situates India within a global trend where constitutional principles increasingly shape PIL, drawing comparisons with the EU Charter and the Hague system’s refusal standards. It introduces a novel "rights-based renvoi" model: a normative framework designed to safeguard the forum state’s core ethical values while maintaining the flexibility required for modern globalization. Ultimately, the research concludes that integrating Constitutional Morality into PIL fosters a cosmopolitan legal system. By grounding international cooperation in fundamental human rights, it creates a more ethical and robust global legal order.
Keywords: Basic Structure Doctrine - Surrogacy Contracts - Patent Compulsory Licensing - Novartis AG v. Union (2013) - TRIPS Flexibilities - Fair Use Doctrine - Data Privacy Transfers - Digital Personal Data Protection Act (DPDP) - Comity Principle - EU Charter Rights
