The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention) establishes methods of co-operation for the taking of evidence abroad in civil or commercial matters. The Hague Convention was concluded on 18 March 1970, and came into force on 7 October 1972. India ratified the Hague Convention on 7 February 2007.
The Hague Convention’s preamble speaks in non-mandatory terms, specifying that it is intended to ‘facilitate’ discovery and to ‘improve mutual judicial co-operation’. The Hague Convention does not provide exclusive or mandatory procedures for obtaining documents and information located in a foreign signatory’s territory. It uses permissive language, and does not expressly modify the law of contracting states or require them to use the specified procedures or change their own procedures.
The Hague Convention, which applies only between state parties, provides for the taking of evidence:
- by means of letters of request; and
- by diplomatic or consular agents and commissioners.
In this article, our focus is on letters of request.
LETTER OF REQUEST
Article 1 of the Hague Convention authorises a judicial authority of one state party (the requesting state) to request the central authority (constituted under Article 2) of another state party (the state addressed), by means of a letter of request, to obtain evidence, or to perform some other judicial act that is intended for use in judicial proceedings in the requesting state.
Article 2 requires each state party to nominate a central authority in accordance with its own law. India has designated the Indian Ministry of Law and Justice, and the high courts in all states and union territory as central authorities to receive letters of request from judicial authorities of contracting states.
Article 3 sets out the material particulars that need to be specified in the letter of request. In order to expedite and facilitate execution, the Hague Convention provides an option to allow the participation of members of the judicial personnel of the requesting state, the parties and/or their representatives in executing the letter of request (Article 8). The requesting authority may also request the use of a special method or procedure for execution of the letter of request, provided that it is not incompatible with the law of the state addressed or impossible to perform (Article 9).
EXECUTION OF LETTER OF REQUEST: REFUSAL
A letter of request has to be executed ‘expeditiously’ and can be refused only in specific cases as provided under Article 11 and 12 of the Hague Convention, which broadly covers three instances:
- when the person to be questioned or who is asked to disclose documents asserts a privilege or duty to refuse to give evidence under either the law of the requesting state or the law of the state addressed;
- when the execution of the letter of request does not fall within the functions of the judiciary of the state addressed; and
- when the state addressed considers that its sovereignty or security would be prejudiced.
INDIA AND THE HAGUE CONVENTION
Even though India only ratified the Hague Convention in 2007, Indian civil laws even prior to this contemplated Indian courts entertaining requests from foreign courts for evidence of witnesses residing within the jurisdiction of courts in India.
INDIAN CIVIL PROCEDURE CODE AND LETTER OF REQUEST
The provisions in Indian law that relate to ‘letters of request issued by foreign courts’ are incorporated in s78 and Order 26, Rule 19 to 22 of the Code of Civil Procedure (CPC). Section 78 read with Rule 19 of Order 26 of the CPC provides for three conditions that are required to be satisfied for execution of letters of request from foreign courts, which conditions are that:
- a foreign court should wish to obtain evidence of a witness in any proceeding of civil nature before it; and
- the witness should be residing within the appellate jurisdiction of the High Court before which the request is placed.
Rule 20 of Order 26, deals with the application for issuance of commission. Rule 21 of Order 26 provides that a commission under Rule 19 may be issued to any court within the local limits of whose jurisdiction the witness resides or where the witness resides within the local limits of ordinary original jurisdiction of the High Court to any person to whom the court thinks fit to execute the commission. Lastly, Rule 22 of Order 26 deals with issuance, execution and return of commissions and transmission of evidence to foreign courts.
One of the first reported case in which Indian courts dealt with the request of a foreign court for obtaining evidence from witnesses in India was the matter of Wooster Products Inc v Magna Tek Inc & ors  before the High Court of Delhi. In this case, a letter of request was issued by a court in Ohio, US. The petitioner in the matter presented the letter of request to the High Court of Delhi by way of a petition under Order 26, Rule 18 of the CPC for obtaining evidence from witnesses located within the High Court of Delhi’s jurisdiction. The High Court, after due consideration of the relevant provision of the CPC, appointed a commission for examination of witnesses as sought by the petitioner.
After India’s ratification of the Hague Convention, two Indian High Courts were presented with petitions for the execution of letters of request issued pursuance to the Hague Convention. These were the matters of Aventis Pharmaceuticals Ind & Aettersm Technology v Dr Reddy Laboratories  and Upaid Systems Ltd v Satyam Computer Services & anor , which were presented before the High Court of Andhra Pradesh and the High Court of Delhi respectively.
In both these matters the Indian courts entertained the letters of request presented to them, and appointed commissioners for execution of the letters of request. These orders were passed by the courts under Order 26 of the CPC, dehors the application of the Hague Convention.
Arguments were raised before the courts that, in the absence of a municipal law facilitating obligations under the Hague Convention, courts could not give effect to its terms. The enforcement of the letters of request issued pursuant to the Hague Convention was resisted on the basis that no law has been enacted by parliament to give effect to the Hague Convention. It was further argued that, in the absence of such legislation, by virtue of Article 253 of the constitution of India (which empowers parliament to make any law for implementing any treaty, agreement or convention with any other country or countries, or any decision made at any international conference, association or any other body) Indian courts could not act on the Hague Convention.
The courts did not disregard these arguments, and the High Court of Delhi specifically opined that treaties do not have force of law and cannot, without legislative sanction, be enforced by courts. However, the Court was also of the view that, in light of the provisions of Order 26 of the CPC, the absence of a special law would not fetter courts’ powers to entertain letters of request from foreign courts. Under the CPC, both the High Court of Andhra Pradesh and High Court of Delhi duly allowed the petitions.
DOMESTIC IMPLEMENTATION OF HAGUE CONVENTION
While the Andhra Pradesh High Court and the High Court of Delhi proceeded on the basis that municipal law had not been enacted in India to give effect to the Hague Convention, the Indian government has, in the response to a questionnaire relating to the Hague Convention (published in May 2009), taken the position that the domestic implemention of the convention in India would be through s78 and Order 26, Rule 19 to 22 of CPC.
This fact appears not to have been brought to the notice of the High Court in Upaid and would require due consideration by Indian courts.
With globalisation, India is witnessing an increase in cross-border disputes, necessitating taking abroad evidence required for effective determination of such disputes. In this scenario, the judiciary’s forward-looking approach in developing and implementing an international treaty facilitating the cross-border disclosure of documents and information located in a foreign signatory’s territory is imperative and necessary.
The internationalisation of disputes in Indian courts requires the transformation of civil processes consistent with international conventions, to bring about greater stability in the applicable procedural law. A liberal and constructive approach by Indian courts would strengthen the reciprocity in taking evidence. As there are limited reported cases of requests received by Indian courts under the Hague Convention, the law on the applicability of the Hague Convention is still at the stage of infancy. However, the attitude of Indian courts in the judgments discussed supra clearly indicates that Indian courts are positively looking to entertain requests from foreign courts for collection of evidence in India. Moreover, the ratification of the Hague Convention, together with the position taken by India in response to the Hague questionnaire in 2009, is likely to lead to a flood of requests under the Hague Convention via the Order 26 route.