Model Answer
0 min readIntroduction
Public policy, in the realm of law, refers to the principles underlying the state’s governance and the general welfare of society. It’s not a static concept but evolves with societal norms and judicial interpretations. The Indian Contract Act, 1872, recognizes that certain agreements, though not inherently illegal, are unenforceable if they violate public policy. The analogy of an ‘unruly horse’ aptly describes public policy because it’s a broad, evolving, and often unpredictable concept, making it challenging to define with precision and control through rigid legal frameworks. Its application is often determined on a case-by-case basis, leading to complexities in its enforcement.
Understanding Public Policy & Its ‘Unruly’ Nature
The difficulty in controlling public policy stems from its inherent ambiguity. It’s not codified in a single document but is derived from various sources – statutes, judicial precedents, and societal values. What constitutes ‘public policy’ can change over time, reflecting evolving social norms. This fluidity makes it difficult to create laws that comprehensively cover all potential violations. Judges often have to interpret what aligns with the ‘spirit’ of public policy, leading to subjective assessments.
Agreements Opposed to Public Policy
Section 23 of the Indian Contract Act, 1872, explicitly outlines agreements that are void as being against public policy. These can be broadly categorized as follows:
1. Agreements in Restraint of Prosecution of Offenders
Agreements that obstruct legal proceedings or shield criminals from justice are void. For example, an agreement to pay someone to suppress evidence in a criminal case.
2. Agreements to Procure the Office of a Public Servant by Improper Means
Any agreement to influence a public servant through bribery or undue influence to secure a public office is void. This aims to maintain the integrity of the public administration.
3. Agreements that Oust the Jurisdiction of Courts
Agreements that prevent parties from seeking legal recourse through courts are generally void. However, arbitration clauses are an exception, as they provide an alternative dispute resolution mechanism.
4. Agreements in Restraint of Legal Proceedings
Agreements that restrict parties from initiating legal proceedings within a specified timeframe, except for arbitration clauses, are considered against public policy. This ensures access to justice.
5. Agreements in Restraint of Marriage
Agreements that unduly restrict a person’s right to marry are void. This is based on the principle that marriage is a fundamental right and should not be subject to contractual limitations. However, agreements prenuptial agreements are gaining recognition in some jurisdictions, but their validity in India is still debated.
6. Agreements to Trade with the Enemy
During times of war, agreements to trade with enemy nations are considered against public policy, as they can compromise national security.
7. Agreements to Create Interests Against Public Policy
This is a broad category encompassing agreements that are detrimental to the general welfare of society. Examples include:
- Agreements interfering with the administration of justice
- Agreements promoting immoral practices
- Agreements that undermine the stability of the state
8. Agreements to Suppress Evidence of a Crime
Similar to restraining prosecution, agreements to hide evidence of a crime are void.
9. Agreements for unlawful consideration or object
Agreements with an illegal or immoral purpose are void. For example, an agreement to smuggle goods.
Illustrative Examples
Example 1: An agreement between a politician and a businessman where the businessman promises to fund the politician’s election campaign in exchange for a favorable government contract would be considered against public policy, violating the principle of fair competition and potentially constituting bribery.
Example 2: An agreement where a witness is paid to give false testimony in court is void as it obstructs the administration of justice.
| Agreement Type | Rationale for being against Public Policy | Relevant Section (Indian Contract Act, 1872) |
|---|---|---|
| Restraint of Prosecution | Obstructs justice and shields criminals | Section 23(1) |
| Procuring Public Office by Improper Means | Compromises integrity of public administration | Section 23(2) |
| Restraint of Marriage | Infringes upon fundamental right to marry | Section 23(3) |
Conclusion
In conclusion, the concept of public policy, while essential for maintaining societal order and ethical standards, remains inherently complex and ‘unruly’. The Indian Contract Act, 1872, provides a framework for identifying agreements that violate public policy, but its application often requires careful judicial interpretation. As societal values evolve, the scope of public policy will continue to adapt, necessitating a dynamic approach to its enforcement and a constant re-evaluation of what constitutes an agreement contrary to the interests of society.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.