India's Judicial Impasse On Hague Evidence Convention

A Brief Introduction Of The Hague Evidence Convention

The Convention was enacted to assist signatory countries to obtain evidence located in foreign countries. The Convention provides for three methods of taking evidence abroad: submission of letters of request, inquiries by diplomatic officers and consular agents, and inquiries by specially appointed commissioners. Letters of request is the principal method of taking evidence abroad. India joined and became a party to the Convention in 2007.

Chapter I of the Convention deals with Letters of Request. Article 3 is very important as it states what a Letter of Request shall specify. Clause (d) of Article 3 states that a Letter of Request shall specify the evidence to be obtained or other Judicial Act to be performed. Clause (g) states that a Letter of Request, where appropriate, shall specify the documents or other property, real or personal to be inspected.

Article 9 permits a judicial authority that executes a Letter of Request to apply its own municipal laws. In India the enabling power to execute a Letter of Request issued by a Foreign Court is under Order 26 Rule 19-22 r/w Section 78 of the Code of Civil Procedure, 1908. Article 23 provides that a contracting State may at the time of signature, ratification or accession, declare that it will not execute a Letter of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

India in its declaration has stated:

'The Republic of India will not execute Letters of Request issued in pursuance of Article 23 of the Convention for the purpose of obtaining pre-trial discovery of documents, which requires a person to produce any documents other than particular documents specified in the Letter of Request, which are likely to be in his possession, custody or power.

^[2]Interpretation And Analysis Of Law

When evidence of a witness residing in India has to be taken in a civil proceeding pending before a foreign court, a commission is issued by the High Court to obtain evidence of a witness under Order 26 Rule 19 r/w Section 78 of the Code of civil procedure, 1908. If the ingredients of the said Rule 19 are fulfilled, the High Court will issue a commission for the purpose of obtaining evidence/testimony of witnesses in accordance with the Letter of Request issued by the Foreign Court.

The High Court will issue a commission under Rule 19 upon an application (usually a miscellaneous civil application-original side) preferred by a party to the proceedings before the Foreign Court. Under Rule 19, if the High Court on perusal of the application finds that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it, that the proceeding is of civil nature and the witness is residing within the High Court's local jurisdiction, it must issue a commission in furtherance of and to execute the Letter of Request. The High Court will not go into the proprietary of the Letter of Request or the questions of relevance of admissibility of evidence which is an exclusive prerogative of the Foreign Court which has issued the Letter of Request.^[3]

After going through the above provisions of Code of Civil Procedure, 1908 and the definition of 'Evidence' in the Indian Evidence Act, 1872, it can be construed that the commission appointed by a High Court on request of a Foreign Court on the basis of a Letter of Request issued by a Foreign Court under the Convention under Order 26 Rule 19 r/w Section 78 of the Code of Civil Procedure, 1908 would be for obtaining both oral as well as documentary evidence.

The word evidence cannot be narrowly construed in isolation ignoring the meaning and definition of the term 'evidence' under the Indian Evidence Act. Any other interpretation that limits the evidence to be obtained under Order 26 Rule 19 is arbitrary and contrary to Order 26 Rule 19-22 of the Code of Civil Procedure, 1908. Such a narrow construction of the term 'evidence' used in order 26 Rule 19 of the Code of Civil Procedure, 1908 defeats the very purpose of obtaining evidence if the same cannot be backed by documentary evidence. There is no provision in the Code of Civil Procedure, 1908 that would limit or not permit documentary evidence to be obtained at the behest and request of a Foreign Court under Order 26 Rule 19 r/w Section 78 of the Code of Civil Procedure, 1908.

There is an inherent contradiction within Order 26 Rule 19 of the Code of Civil Procedure, 1908 which widens the scope of evidence that can be obtained under the above-mentioned Rule. Rule 19 uses phrase 'High Court may issue to examine witnesses and 'wishes to obtain evidence of a witness... '. When two interpretations are possible, the more liberal interpretation which is in consonance with The Convention needs to be adhered to. Therefore, Rule 19, has to be liberally construed and a High Court may issue a commission to obtain both oral as well as documentary evidence.

Can A Request For Inspection Of Property By A Foreign Court Be Granted Under Indian Law?

Article 3 (g) of the Convention states that a Letter of Request may specify the documents or the property to be inspected. The Convention does not define the term 'inspection'. However, 'inspection of documents or a property' has to be understood and read along with Article 1 of The Convention. The inspection has be to for the purpose of the obtaining evidence which the judicial authority of a contracting State has requested the competent authority of another contracting State. Article 1 of the Convention also uses the phrase 'perform some other judicial act' which would include inspection or investigation of a local property in India within the jurisdiction of the commission.

Therefore, if inspection of a property is requested for the purpose of taking evidence, there is no restriction or bar on granting or allowing such inspection under the Code of Civil Procedure, 1908. Section 75 of the Code of Civil Procedure, 1908 lays down the power of a Court to issue commissions. Order 26 Rule 16 of the Code of Civil Procedure, 1908 provides for powers of commissioner to be exercised under Order 26 of the Code of Civil Procedure, 1908. Section 75(b) clearly states that a commission may be issued to make a local investigation. Therefore, this provision will apply irrespective of the fact whether the commission has been issued by a Court in India or based on a Letter of Request issued by a Foreign Court under The Convention. Similarly, Rule 16 confers the powers to call for and examine documents and undertake inspection etc. of a property upon any Commissioner who is appointed under this Order 26 of the Code of Civil Procedure, 1908. Therefore, a commission issued by the High Court under Order 26 Rule 19 of the Code of Civil Procedure, 1908 would also have the powers as provided under Rule 16 of the Code of Civil Procedure, 1908.

It would be fair to conclude that a High Court in exercise of its powers under Order 26 Rule 19 r/w Section 75 and 78 of the Code of Civil Procedure, 1908 can issue a commission on a request of a Foreign Court to obtain both oral as well as documentary evidence and also permit inspection of documents and property within the jurisdictional limits of the commission.

Anaylysis Of The Important Court Decisions

There are two important judgments of the Delhi High Court dated 17.7.2009 in the matter between Upaid Systems Ltd. and Satyam Computer Services and Anr.^[4]and Gujarat High Court dated 10.9.2020 in the matter of Carneige Institute of Washington and Fenix Diamonds LLC respectively that governs the execution and implementation of Letter of Request issued by a Foreign Court under The Convention.

The comparison between the two decisions becomes important and interesting since the Gujarat High Court in the matter of Carneige Institute takes a more contracted view of Order 26 Rule 19 r/w Section 78 of the Code of Civil Procedure, 1908. The Gujarat High Courts holds that in execution of a Letter of Request issued by a Foreign Court under The Convention, a commission appointed or issued under Order 26 Rule 19 of the Code of Procedure, 1908 would be confined only to obtain oral evidence/testimony of the witnesses and not for any other purpose such as production of documents, inspection or investigation of property.

In the above-mentioned matter, a Letter of Request was issued by and received from United States District Court for the Southern District of New York under The Convention. Three-fold requests were made in the Letter of Request to examine the witnesses, permit production of documents and permit inspection of facilities. The Hon'ble High Court interpreting the phrase 'to examine witness' used in Order 26 Rule 19 of the Code of Civil Procedure, 1908 held that only oral evidence or testimony could be obtained and the request by the Foreign Court for production of documents and inspection of property could not be granted since the Commission appointed by the High Court under Rule 19 of Order 26 r/w Section 78 of the Code of Civil Procedure, 1908 was only limited to examining witnesses and obtaining oral evidence.

Carneige Institute before the Gujarat High Court placed a strong reliance on the Judgment of the Delhi High Court in Upaid Systems to establish that a commission issued by the High Court under the above-mentioned provisions of the of the Code of Civil Procedure, 1908 had powers to not only obtain oral evidence of the witnesses as per the Letter of Request but also direct production of documents which would be documentary evidence in accordance with the definition of 'Evidence' under the Indian Evidence Act and inspection of property of the witnesses. However, the Gujarat High Court took a different view from the more expansive judgment of the Delhi High Court to narrow down the scope of Order 26 Rule 19 r/w Section 78 of the Code of Civil Procedure, 1908. The decision of the Gujarat High Court needs to be revisited and reviewed in an appropriate proceeding since same drastically limits the scope of The Convention vis-à-vis its implementation in India.

In the matter of Upaid Systems before the Delhi High Court, two requests were made in the Letter of Request received from the United States District Court for Eastern District of Texas Marshall Division for recording deposition of witnesses and for production of documents.

Two questions were framed by the Delhi High Court. The first was whether in absence of a municipal law specially enacted to facilitate obligations under the Convention, can the High Court appoint a Commissioner to execute the Letter of Request received from the Foreign Court under the Convention.

The Court, rightly, answered the question and held that when there is enabling provision and law in the Code of Code of Civil Procedure, 1908 empowering the High Court to issue a commission for the purpose of obtaining evidence on the basis of a Letter of Request issued by a Foreign Court, an absence of specific or special law for implementation of the Convention is not a necessity or a requirement.

The second question with respect to production of documents is correctly answered by the Hon'ble Court in affirmative and gives a well-reasoned finding. A plain and simple construction of various provisions of Order 26 of the Code of Civil Procedure, 1908, makes it very clear that the word 'evidence' has to be given a wide meaning as ascribed to it under the Indian Evidence Act.

Impasse.

The Gujarat High Court, while disagreeing with the view taken by Delhi High Court (though not mentioned in the judgment but was relied upon) interprets Rule 19-22 of Order 26 r/w Section 78 of the Code of Civil Procedure, 1908 to hold that only oral testimony or evidence can be obtained by a commission issued under the above mentioned provision and neither a request made under the Convention for production of documents can be granted nor a property investigation/inspection can be granted.

Though with great respect to the decision of the Gujarat High Court, it must be mentioned that India in its declaration after ratifying and joining the Convention does not specify any reservation nor objects to Article 3 (g) of the Convention which permits a contracting State to request for inspection of documents and property.

Moreover, there is an enabling power in Indian law to give effect to a Letter of Request issued by a Foreign Court for obtaining oral testimony, documentary evidence and inspection of property. A commission can be issued under Order 26 Rule 19 r/w Section 78 of the Code of Civil Procedure, 1908 for the said purpose in accordance with the Letter of Request.

In contrast, the Delhi High Court interprets the term 'evidence' on a wide compass and interprets Order 26 rule 19 liberally. The Delhi High Court holds that the term evidence' used in Rule 19 means both oral as well as documentary evidence.

Therefore, a request for production of documents received from Foreign Court can be granted by a commission issued under Order 26 Rule 19 of the Code of Civil Procedure, 1908. However, the Delhi High Court had no occasion to rule on the issue of inspection/investigation of property and the view of the Gujarat High Court unless reversed would prevail. None of the decisions have been tested and challenged before the Hon'ble Supreme Court of India. This judicial impasse continues…

The author is a practicing Advocate in the Supreme Court of India and views are personal

[1] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82