Kerala High Court
Dr.James W. Thomas vs Fr.Jose Thomas S.J on 15 November, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 15TH DAY OF NOVEMBER 2024/24TH KARTHIKA, 1946
RFA NO.210 OF 2019
AGAINST THE JUDGMENT DATED 30.06.2018 IN O.S NO.152 OF 2014 OF
ADDITIONAL SUB COURT-I, THIRUVANANTHAPURAM
APPELLANT-DEFENDANT:
*1 CHARUVILA PHILIPPOSE SUNDARAN PILLAI, *[DIED]
AGED 69 YEARS, S/O.PHILIPPOSE, KINAVOOR MURI,
KP 1/1041, NALANCHIRA CONVENT ROAD,
KUDAPPANAKKUNNU VILLAGE,
THIRUVANANTHAPURAM VILLAGE AND TALUK.
*ADDL.A2 IMPLEADED
*ADDL.A2
JAYA MARY JOHN, AGED 52 YEARS,
D/O.CHARUVILA PHILIPPOSE SUNDARAN PILLAI,
RESIDING AT G-201 /202, TRINITY SUNRISE APTS,
SOMPUR GATE, SARJPURA ROAD, BENGALURU- 562125.
BY ADVS.
R.S.KALKURA
M.S.KALESH
HARISH GOPINATH
R.BINDU
P.ANJANA
RESPONDENT-PLAINTIFF:
1 P.N.SIVADASAN, AGED 66 YEARS, S/O.NARAYANAN,
T.C.3/2384, KAVALLOORKONAM LANE, PATTOM P.O.,
KOWDIAR VILLAGE, THIRUVANANTHAPURAM-695 003.
*ADDITIONAL R2 TO R4 IMPLEADED
*ADDL.R2 JINI VARGHESE,
D/O.CHARUVILA PHILIPOSE SUNDRAN PILLAI,
AGED 51 YEARS, MARY VILLA TC 32/2366-1,
HOUSE NO.SRA D 23A,
CHERUPALODU DEVI TEMPLE ARCH ROAD,
MANIKANDESHWANRAM, VAZHAYILA,
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THIRUVANANTHAPURAM- 695013.
*ADDL.R3 JEAN SABU THOMAS,
D/O.CHARVILA PHILIPPOSE SUNDARAN PILLAI,
AGED 49 YEARS, 1565 DAVIS FARM DRIVE,
KENNESWA, GA 30152, USA.
*ADDL.R4 LEWIS PHILIP JOHN,
S/O.CHARUVILA PHILIPPOSE SUNDARAN PILLAI,
AGED 45 YEARS, 6601 DUBLIN BOULEVARD, APARTMENT 313,
DUBLIN CA 94568, USA.
*[THE LEGAL HEIRS OF THE DECEASED APPELLANT ARE
IMPLEADED AS ADDL.A2 AND ADDL. R2 TO R4 VIDE ORDER
DATED 06.09.2021 IN IA 1/2021].
** ADDITIONAL R5 TO R6 IMPLEADED
**ADDL.R5 THE MINISTRY OF HOME AFFAIRS,
REP.BY SECRETARY, GOVERNMENT OF INDIA,
IS-II DIVISION/LEGAL CELL-1, II FLOOR,
DHYANCHAND NATIONAL STADIUM, NEAR INDIA GATE,
NEW DELHI-01.
**ADDL.R6 THE MINISTRY OF LAW AND JUSTICE (MOLJ),
DEPARTMENT OF LEGAL AFFAIRS, REP.BY SECRETARY,
IV FLOOR, A-WING, SHASTRI BHAVAN,
NEW DELHI - 110 001.
**[THE ADDITIONAL RESPONDENTS 5 AND 6 WERE SUO MOTU
IMPLEADED VIDE ORDER DATED 01/07/2024 IN RFA
210/2019].
BY ADVS.
M.NARENDRA KUMAR
N.S.DAYA SINDHU SHREE HARI
ABRAHAM GEORGE JACOB
JACOB P. ALEX (AMICUS CURIAE)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.11.2024, ALONG WITH RFA.73/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 15TH DAY OF NOVEMBER 2024/24TH KARTHIKA, 1946
RFA NO.73 OF 2021
AGAINST THE FINAL JUDGMENT AND FINAL DECREE DATED 28.07.2020 IN
IN OS NO.5 OF 2018 ON THE FILE OF THE ADDITIONAL DISTRICT
COURT-I, KOTTAYAM
APPELLANT/3RD DEFENDANT:
DR.JAMES W.THOMAS, AGED 51 YEARS, S/O.A.K.THOMAS,
NOW RESIDING IN UNITED STATES OF AMERICA AT 257,
NORTH MOUNTAIN AVE, UPPER MONTCLAIR,
NEW JERSEY-07043 AND ADDRESS IN INDIA AT
MURRIYAN KAVUMKAL, PERUMPANACHY P.O., KOTTAYAM.
BY ADVS.
S.ANANTHAKRISHNAN
GEORGE V.THOMAS
RESPONDENTS/PLAINTIFF & DEFENDANTS 2, 4 & 5:
1 FR.JOSE THOMAS.SJ., CHAIR PERSON, EMMANUEL THOMAS,
MURIYANKAVUNKAL FAMILY TRUST,
REPRESENTED BY AUTHORISED TRUSTEE FR.ANTONY (LOVELY)
THEVARY HOUSE, CHATHUTHYAKARY P.O, ALAPUZHA,
AUTHORISED PERSON/TRUSTEE EMMANUEL THOMAS,
MURIYANKAVUNKAL FAMILY TRUST, MURIYANKAVUNKAL HOUSE,
PERUMBANACHY KARA, CHANGANACHERRY,
KOTTAYAM - 686 101.
2 DR. TERESA THOMAS ROSS, M.D., AGED ABOUT 56 YEARS,
1284 RALLS COURT, TORNS RIVER, NEW JERCY, U.S.A.
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3 CRISTINA M. THOMAS, JD., MBA, AGED ABOUT 48 YEARS,
257, NORTH MOUNTAIN AVE UPPER MONTCLAIR,
NEW JERSEY-07043, USA.
4 DR.GRACE THOMAS, M.D., AGED ABOUT 46 YEARS,
257 NORTH MOUNTAIN AVE UPPER MONTCLAIR,
NEW JERSEY-07043, U.S.A.
(THE 1ST DEFENDANT IN THE SUIT MRS.MARY EMMANUEL
THOMAS @ MARY KANJUPARAMBAN DIED DURING THE PENDENCY
OF THE SUIT BEFORE THE WRITTEN STATEMENT WAS FILED.
THE DEATH HAS BEEN INTIMATED AND RECORDED; LEGAL
HEIRS ALREADY ON RECORD AS DEFENDANTS 2 TO 5, HENCE
1ST DEFENDANT NOT MADE PARTY IN THIS APPEAL)
* ADDITIONAL R5 TO R6 IMPLEADED
*ADDL.R5 THE MINISTRY OF HOME AFFAIRS
REP.BY SECRETARY, GOVERNMENT OF INDIA,
IS-II DIVISION/LEGAL CELL - 1, II FLOOR,
DHYANCHAND NATIONAL STADIUM,
NEAR INDIA GATE, NEW DELHI - 01.
*ADDL.R6 THE MINSTRY OF LAW AND JUSTICE ( MoLJ),
DEPARTMENT OF LEGAL AFFAIRS, REP.BY SECRETARY,
IV FLOOR, A-WING, SHASTRI BHAVAN,
NEW DELHI - 110001.
* [THE ADDITIONAL RESPONDENTS 5 AND 6 WERE SUO MOTU
IMPLEADED VIDE ORDER DATED 01/07/2024 IN RFA
73/2021].
BY ADVS.
RAJESH CHERIAN KARIPPAPARAMBIL
ABRAHAM GEORGE JACOB
N.S.DAYA SINDHU SHREE HARI
C.MURALIKRISHNAN (PAYYANUR)
AKSHAY R
JACOB P. ALEX (AMICUS CURIAE)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.11.2024, ALONG WITH RFA.210/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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'C.R.'
JUDGMENT
C.Jayachandran, J.
The issue referred remind us of the Shakespearean quote in
Macbeth, as it looks like an innocent flower, beneath which
lies a serpentine conundrum.
At its core, the matter before us addresses the procedural
framework for effecting service of summons in suits where
defendants reside beyond India’s borders. The question arose on
account of an apparent dichotomy between the modes prescribed
under Order V of the Code of Civil Procedure, 1908 (for short,
‘C.P.C’) and the one under the “Convention on The Service
Abroad of Judicial and Extra Judicial Documents in Civil or
Commercial matters” (‘the Hague Service Convention’ for short).
The answer lies in an analysis of the legal requirements to
enforce an international treaty, in the backdrop of the
constitutional provisions and precedents, binding. Whether the
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covenants of an international treaty/convention are enforceable
per force of India subscribing its hands to such treaty? What
if, such covenants are in conflict with the municipal laws?
Should such covenants be specifically en-grafted to municipal
law, applying the doctrine of incorporation? An answer to this
reference require answer to these questions too.
2. A Division Bench of this Court in Mollykutty v. Nicey
Jacob [2019 (3) KHC 118] held that the summons to a defendant,
who is residing in a foreign country, which is party to the
Hague Service Convention, can only be served as provided for in
the Hague Service Convention; and that it cannot be sent
directly to defendants residing abroad. When the question of
serving summons to a defendant residing abroad arose in the
above appeals, another Division Bench doubted the correctness
of Mollykutty (supra), essentially on the premise that, in the
absence of an amendment to the Code, the methodology envisaged
in the Code can still be resorted to. Accordingly, the
subsequent Division Bench sought a reference on the following
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questions to a Full Bench:
“i). Could not a summons issued by an Indian Court to
be served on a defendant who is actually or
voluntarily residing or carrying on business or
personally working for gain in a foreign
territory be sent to him through the modes
mentioned in Rule 25 of Order V of the Code?
ii). Should every summons issued by an Indian court to
be served on a defendant who is actually or
voluntarily residing or carrying on business or
personally working for gain in a foreign
territory be sent through the Ministry of Law and
Justice?”
The matter was accordingly referred by the Chief Justice and
placed before us.
3. Having regard to the complexity of the issue, we appointed
Adv.Jacob P Alex, as Amicus Curiae.
4. By Order dated 01.07.2024, We suo moto impleaded the
Ministry of Home Affairs and the Ministry of Law and Justice of
the Government of India, the said respondents being important
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stakeholders to submit on the enforceability of the Hague
Service Convention, as also, the action in terms of Article 73
of the Constitution. The Order dated 01.07.2024 specifically
referred to the necessity of such impleadment, being to explore
the possibility of an alternate mode of service, which can be
productive, practical and effective, especially in view of the
advancement of technology.
5. Heard the learned Amicus, the learned counsel for the
appellants and respondents in the above R.F.As. Heard the
learned Central Government Counsel on behalf of the additional
respondents as well.
6. ARGUMENTS ADVANCED BY THE AMICUS CURIAE:-
Learned Amicus would first impress upon us the importance of
serving summons on the defendant in a suit. Relying on
Halsbury’s Laws of India [Volume 7 Butterworths, paragraph
(65.277)], it was pointed out that service of summons on the
defendant is of prime importance, as it is intended to inform
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him of the institution of the suit and to extend an opportunity
to resist the same. Sangram Singh v. Election Tribunal and
Another [AIR 1955 SC 425] underscores that serving proper
summons on the defendant is grounded on the principles of audi
alterum partem, a facet of Article 14 of the Constitution.
Referring to Order V of the Code, the Amicus would reiterate
the significance of ensuring service of summons, actual or
deemed, on the defendant, as a vital procedural requirement to
proceed with the suit. It was then submitted that, under Rule
25 of Order V, there is no procedure to ensure service of
summons, or for that matter, for declaration of deemed service.
No rules in terms of Rule 25 has been en-grafted. The absence
of a mechanism to confirm service of summons on the defendant
under Rule 25 violates the principles of natural justice, is
the submission made. Coming to Rule 26, learned Amicus would
point out that, no political agents were appointed; nor any
court established in terms of Rule 26, which renders this mode
of service futile. Under Rule 26A, summons could be served
through diplomatic channels, as recommended in the 27 th report
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of the Law Commission. Rule 26A was inserted by the C.P.C.
Amendment Act, 1976. Service of summons through Mutual Legal
Assistance Treaty (Civil) is in accord with Rule 26A.
7. Learned Amicus then took us through the relevant
constitutional provisions, as also, the case laws. Our attention
was invited to Article 246, 7th Schedule, List 1, Entry 14, and
thereafter to Article 253 and Article 73, and finally to Article
51(c). Relying on Article 73, read with Entries 13 and 14 of
List 1 of 7th schedule, it was contended that, Executive (Central
Government) has the power to give effect to treaties by issuing
necessary gazette notification and guidelines. In elaboration,
it was pointed out that, India became a signatory to the Hague
Service Convention on 23.11.2006 and ratified the same on
01.08.2007. Accordingly, the Ministry of Law and Justice was
notified as the Central Authority in accord with Article 2 of
the Hague Service Convention. As regards Article 10 of the
Convention providing for service by alternative channels, India
has taken exception, wherefore, service can only be through the
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Central Agency. Invoking the executive power under Article 73,
the Central Government issued notification (GSR 24E) on
12.01.2009 to give effect to the convention. That apart, the
Department of Legal Affairs, Ministry of Law and Justice issued
Office Memorandum [bearing F.No.12(77)/10-Judl] dated 18.08.2011
and another one bearing FTS No.1003/…/15 no.12(80)/2013-Judl
and yet another Office Memorandum dated 10.09.2018 elaborating
the modalities for service abroad. According to the learned
Amicus, the said guidelines are enforceable as law. It was also
pointed out that, the Hon’ble Supreme Court in its “Hand book on
Practice and Procedure and Office Procedure” had detailed in
Chapter XVII, titled “Process, Warrants and Service of
Documents” the procedure in Hague Service Convention as the
proper mode of service. Learned Amicus would submit that,
inasmuch as the Hague Service Convention has thus become
enforceable in India, service to the defendants residing in the
84 contracting states (parties to the Hague Conference on
Private International Law) and 66 other connected parties to
Hague conference could be effected through the Hague Service
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Convention. As regards 14 countries, with which India had
executed Mutual Legal Assistance Treaty (Civil), service could
be effected as provided therein, in terms of Rule 26A. In
respect of other countries, service can be carried out through
“Letter Rogatory Route/Diplomatic Channel”. Relying on the
decisions in Union of India and others v. Agricas LLP and others
[(2021) 14 SCC 341] and Union of India and another v. Azadi
Bachao Andolan and another [(2004) 10 SCC 1], it was submitted
that no legislative measure is required to give effect to the
international agreement/treaty, unless the rights of the
citizens or others are affected, or its covenants are in
conflict with municipal law. As held in Agricas LLP (supra),
municipal law has to be interpreted, so as to give effect to the
obligations under the international treaty/convention,
especially when the covenants of the treaty is not in conflict
with domestic law. Article 51(c) was pressed into service to
pinpoint the State’s duty to make every endeavour in fostering
respect for International Law and treaty obligation, which is a
directive principle of the State policy. Any attempt to effect
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direct service on the party may amount to violation of the
foreign country’s sovereignty, which course is, therefore,
impermissible, especially in view of India’s exception to
Article 10 of the Hague Service Convention.
8. Finally, it was pointed out that no person has a vested
right in any course of procedure. Mode of service of summons
being wholly and completely procedural in nature, no party
before a court can claim any vested right as regards the
particular mode of service. In substantiation of this point,
the judgments in Anand Gopal Sheorey v. State of Bombay [AIR
1958 SC 915]; Hitendra Vishnu Thakur v. State of Maharashtra
[(1994) 4 SCC 602] and Board of Control for Cricket in India v.
Kochi Cricket Pvt. Ltd. [(2018) 6 SCC 287], were relied upon.
9. Elaborating as above, it was submitted by the learned
Amicus that the various stake holders are unaware of the
procedural formalities to be followed to take out summons in
terms of the Hague Service Convention. It is the suggestion of
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the learned Amicus to direct the Registry of the High Court to
formulate detailed guidelines by issuing necessary circular, in
consultation with the Ministry of Law and Justice, which may be
given vide circulation, both in English and Malayalam, for
strict compliance. A further suggestion is also made to depute
an officer of the Registry to function as a contact person to
guide the stake holders about the process of serving summons in
foreign countries.
10. ARGUMENTS OF R2 IN R.F.A. NO.73/2021:-
Adv.Abraham George Jacob, learned counsel for the 2nd respondent
in R.F.A.No.73/2021 would submit that the power of legislation
is exclusively with the Parliament under Article 253 of the
Constitution, wherefore, it is for the Parliament to legislate
for enforcement of an international treaty/convention within
the Republic of India. The same is the case, if the municipal
law has to be changed to accommodate an international treaty.
In this regard, learned counsel would rely on a recent judgment
of the Hon’ble Supreme Court, titled Assessing Officer Circle
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(International Taxation) 2(2)(2), New Delhi v. M/s.Nestle SA
[2023 SCC Online SC 1372], as also, the various judgments
referred to therein. It was pinpointed that the treaties binds
the Union, but would not, by its own force, bind the Indian
nationals. If the treaty/agreement restricts or affects the
rights of citizens or others, or if it tends to modify the law
of India, the treaty is not enforceable, in the absence of a
law made by the Parliament. It was then contended that the
C.P.C confers substantive and vested rights also to the
parties, such as the right to appeal, etc., as held by the
Hon’ble Supreme Court in Garikapati Veeraya v. N.Subbiah
Choudhry and Others [AIR 1957 SC 540], wherefore the provisions
in the Code cannot be treated as merely procedural in nature.
To ascertain whether the provisions of the Hague Service
Convention would militate against the municipal law, learned
counsel invited the attention of this Court to Articles 15 and
16 of the Hague Service Convention, to contend that by virtue
of Article 16, even the power of the Indian Courts to deal with
an exparte judgment, as also, the provisions regarding
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limitation thereof stand modified by prescribing conditions,
which are not there in the Code. Learned counsel would point
out that, if Article 2 of the Convention, which deals with
service of summons, is held to be enforceable without amending
the municipal law/C.P.C, the same treatment will have to be
given to the provisions of Articles 15 and 16 as well, the
latter of which definitely interferes with the vested rights of
the litigants under the C.P.C. On the criticism that Order V,
Rule 25 cannot ensure proof of service, it was pointed out
that, even in the mechanism under the Article 15 of the Hague
Service Convention, the uncertainty prevails. In other words,
the service on the defendant residing in a foreign country is
dependent on the mechanism available in that country for such
service, over which India or its judicial system have no
control. Therefore, the ambiguity, if any, with respect to
actual service of a postal article abroad, should equally weigh
in respect of the service contemplated in Hague Service
Convention as well. Learned counsel would hasten to add that
the Universal Postal Union (U.P.U.) has established a treaty
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from the year 1864 onwards, to ensure service of notice through
post. As against only 84 contracting parties to the Hague
Service Convention, as many as 192 member States, out of the
total 195 countries, are part of the Universal Postal Union, is
the submission made. It was argued that merely because 84
countries have ratified Hague Service Convention, it cannot be
said that the provisions of Order V, Rule 25 has become otiose,
since the mechanism in Order V, Rule 25 will have to be adhered
to in respect of the non contracting States. Learned counsel
relied upon a judgment of the Hon’ble Supreme Court in United
States in the case of Water Splash Inc. v. Menon [(581 US SC)
2017], which held that the services contemplated in Order V,
Rule 25 can be followed, as long as a State does not object to
such mode of service. Learned counsel then pointed out that the
notification No. G.S.R.24(E) dated 12.01.2009 of the Ministry
of Law & Justice is invoking the power under Section 29(c) of
the Code, which caters only to documents issued by courts in
other countries to the courts within the Indian territory; and
not vice versa. On Article 73, it was pointed out that, the
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executive power cannot be exercised over domains which are
already occupied by the existing laws. The provisions of C.P.C
cannot therefore be amended by executive action, as held by the
Hon’ble Supreme Court in Rai Sahib Ram Jawaya Kapur v. State of
Punjab [1955 KHC 388]. Learned counsel would conclude his
argument by submitting that, as long as Order V, Rule 25 has
not been modified by the Parliament by necessary enactment/
amendment, the said provisions have to be followed by the
courts in India. Learned counsel would thus vouch for
reconsideration of Mollykutty (supra).
11. ARGUMENTS OF THE APPELLANT IN R.F.A NO. 73/2021:-
Sri.S.Ananthakrishnan, learned counsel for the appellant in
R.F.A.No.73/2021 would completely support the above contentions
urged by Adv.Abraham George Jacob, besides pointing out the
practical difficulties in complying with the Hague Covenants,
as also, the poor success rate in serving summons/notice as per
the Convention.
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12. ARGUMENTS OF R2 IN R.F.A NO. 210/2019:-
Sri.R.S.Kalkura, learned counsel for the 2nd appellant in
R.F.A.No.210/2019, would submit that the law laid down in
Mollykutty (supra) would abrogate the procedure contained in
Order V, Rule 25. The municipal law contained in the Code
regarding service of summons cannot be made subservient to the
Hague Service Convention, is the submission made. Referring to
Order V, Rule 25, the submission made is that, the Rules need
to be framed by the High Court only for ‘any other means’ not
prescribed under Rule 25. The submission made by the learned
counsel is that, only in cases where the mechanism in Rule 26
or 26A of Order V is resorted to, the summons need be sent
through the Ministry of Law and Justice. The guidelines issued
by the Ministry of Law and Justice for sending summons/notice
in civil and commercial matters through the Ministry had
application only in that context. In other words, summons
issued as per the provisions of Order V, Rule 25 need not be
sent through the Ministry of Law and Justice. The law laid down
in Mollykutty (supra) imposing a complete ban on serving
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summons by any of the means contemplated in Order V, makes Rule
25 of Order V nugatory. The presumption to be drawn in terms of
Order V, Rule 25 is only in accord with Section 27 of the
General Clauses Act, which presumption is a rebuttable one.
Learned counsel would submit that when there is conflict
between international and municipal law, the municipal law
should prevail, as settled by the Hon’ble Supreme Court in a
catena of decisions. On facts, it was submitted that the
methodology envisaged in the Hague Service Convention is very
cumbersome, causing serious hardship to the litigants in terms
of cost as well. Besides, it was also pointed out that, in
majority of the cases where summons were issued in terms of the
Hague Service Convention, service could not be completed and
therefore, the said method is a failure.
13. ARGUMENTS OF ADDITIONAL RESPONDENTS, THE MINISTRY OF HOME
AFFAIRS AND MINISTRY OF LAW AND JUSTICE:-
Sri. Daya Sindhu Sreehari. N.S, learned Central Government
Counsel would endorse the submissions of the learned Amicus, to
maintain that summons can be served only as provided in the
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Hague Service Convention, India being a signatory to, and have
ratified, the same. Specific reference was made to Notification
G.S.R No.24E dated 12.01.2009 and the O.M dated 18.08.2011, to
contend that the Hague Service Convention have been directed to
be enforced by the Central Government.
14. Having heard the learned Amicus and the learned counsel
appearing for the respective parties, we will now address the
issue hereunder:
15. THE CONSTITUTIONAL PROVISIONS:-
Under Article 246, read with Entry 14 of List 1 to the Seventh
Schedule, the power to enter into treaties and agreements with
foreign countries and implementing such treaties, agreements
and conventions is a subject, over which the Parliament has the
exclusive power to make laws. Under Article 253 of the
Constitution, a specific power to make law for giving effect to
international agreements, is seen bestowed upon the Parliament.
Under Article 51(c), the State shall endeavour to foster
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respect for international law and treaty obligations in the
dealings of organised people with one another. Article 73 of
the Constitution is relevant and extracted here-below:
“73. Extent of executive power of the Union.-
(1) Subject to the provisions of this
Constitution, the executive power of the Union
shall extend –
(a) to the matters with respect to which
Parliament has power to make laws; and
(b) to the exercise of such rights, authority
and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or
agreement:
Provided that the executive power referred to
in sub-clause (a) shall not, save as expressly
provided in this Constitution or in any law
made by Parliament, extend in any State to
matters with respect to which the Legislature
of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a
State and any officer or authority of a State
may, notwithstanding anything in this article,
continue to exercise in matters with respect
to which Parliament has power to make laws for
that State such executive power or functions
as the State or officer or authority thereof
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could exercise immediately before the
commencement of this Constitution.”
16. Thus, the executive power of the Union extends to all
matters over which Parliament has power to make laws and the
rights, authority and jurisdiction, as are exercisable by the
Government of India by virtue of any treaty or agreement, can
be exercised by the Union Executive as well, under Article 73.
17. MONISM Versus DUALISM:-
Before referring to the precedents on the point, it is relevant
to take note of two concepts namely monism and dualism. A
monistic system is one which recognizes the supremacy of
international law, even within the national sphere. It treats
international conventions as superior to all law, including its
Constitution, wherefore, such treaties are directly applied
without any ‘act of transformation’. Whereas, the dualistic
system is one where the international law will impact the
domestic jurisdiction only when the covenants thereof are
specifically transformed into municipal law. It stresses that
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international law and municipal law exists separately, and one
cannot overrule the other. Thus, the former system contemplates
‘direct application of treaties in domestic law’, whereas, the
latter require an ‘act of incorporation/transformation’ for the
international treaty to apply as apart of domestic
jurisprudence. The constitution of Netherlands, France,
Belgium, Switzerland etc., are generally regarded as monistic,
whereas, the United Kingdom, Australia etc., propounds the
dualistic theory. These concepts have been taken stock of and
narrated succinctly by the Supreme Court in Union of India and
others v. Agricas LLP and others [(2021) 14 SCC 341], about
which detailed reference will be made here-below.
18. THE PRECEDENTS:-
One of the earliest exposition of law on the topic arose in In
Re; the Berubari Union and Exchange of Enclaves [(1960) 3 SCR
250], a case which arose pursuant to a reference by the
President of India, based on the India-Pakistan agreement,
agreeing to transfer the Berubari Union to Pakistan. One among
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the questions posed was whether any legislative action is
necessary for the implementation of the said agreement. The
question was answered in the affirmative by the Hon’ble Supreme
Court, inasmuch as, the agreement purports to cede a territory
of India to Pakistan; and not an ascertainment of boundary
between the two countries. In Berubari-II [Ram Kishore Sen and
Others v. Union of India and Others – (1966) 1 SCR 430], the
question again arose in the context of the village of Chilhati,
the subject matter of transfer to Pakistan based on the Indo-
Pakistan agreement, which however was not transferred while
implementing the said agreement. A contention was raised that
the said village cannot be ceded without adhering to the
procedure laid down in Berubari-I (supra). The contention was
repelled holding that there cannot be any question on the
constitutional validity of the proposed transfer of the village
to Pakistan, inasmuch as, that area actually belonged to
Pakistan, but happened to be administered by West Bengal, by
mistake.
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19. Maganbhai Ishwarbhai Patel etc. v. Union of India and
Another [(1970) 3 SCC 400] is a leading case on the point,
wherein a five Judges Bench of the Hon’ble Supreme Court
delineated the legal position as regards the implementation/
enforceability of the international treaty, within the domestic
limits. Maganbhai (supra) arose in the context of a challenge
made in the Supreme Court under Article 32 of the Constitution
to restrain the Government of India from ceding certain areas
in the Rann of Kutch, pursuant to an international Award
between India and Pakistan. As taken note in Paragraph no.19,
there was no quarrel/challenge to the Award, which has been
accepted by the Government; and the solitary question raised
was with respect to the implementation of the same. Thorough
discussion is made in Maganbhai (supra), after referring to the
legal position on the topic prevailing in various countries.
The principles laid down in Maganbhai (supra) has been
summarized in Karan Dileep Nevatia v. Union of India, through
Commerce Secretary & Others [(2010) SCC Online Bom 23] as
follows:
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“36. ……..
(i) The stipulations of a treaty duly ratified
by the Central Government, do not by virtue of
the treaty alone have the force of law.
(ii) Though the Executive (Central Government)
has power to enter into international treaties/
agreements/conventions under Article 73 (read
with Entries 10 & 14 of List I of the VII
Schedule to the Constitution of India) the power
to legislate in respect of such treaties/
agreements/conventions, lies with Parliament, it
is open to Parliament to refuse to perform such
treaties/agreements/conventions. In such a case,
while the treaties/agreements/conventions will
bind the Union of India as against the other
contracting parties, Parliament may refuse to
perform them and leave the Union of India in
default.
(iii) Though the applications under such
treaties/agreements/conventions are binding upon
the Union of India (referred to as “the State”
in Maganbhai’s case) these treaties/agreements/
conventions “are not by their own force binding
upon Indian nationals”.
(iv) The making of law by Parliament in respect
of such treaties/agreements/conventions is
necessary when the treaty or agreement restricts
or affects the rights of citizens or others or
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modifies the law of India,
(v) If the rights of citizens or others are not
affected or the laws of India are not modified
then no legislative measure is needed to give
effect to such treaties/agreements/conventions.”
Out of the three situations culled out in clause (iv) above, we
are more concerned in this case, with the 3 rd one, which has
been couched as a situation where the treaty ‘modifies the law
of India’.
20. This concept of ‘modification’ has undergone a change and
has been made a bit stricter by employing the idea, “in
conflict with the laws of India” in Gramaphone Company of India
Ltd v. Birendra Bahadur Pandey and Others [(1984) 2 SCC 534].
The relevant findings in paragraph no.5 are extracted here-
below:
“5. There can be no question that nations must
march with the international community and the
municipal law must respect rules of
International law even as nations respect
international opinion. The comity of nations
requires that rules of International law may be
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accommodated in the municipal law even without
express legislative sanction provided they do
not run into conflict with Acts of Parliament.
But when they do run into such conflict, the
sovereignty and the integrity of the Republic
and the supremacy of the constituted
legislatures in making the laws may not be
subjected to external rules except to the extent
legitimately accepted by the constituted
legislatures themselves. The doctrine of
incorporation also recognises the position that
the rules of international law are incorporated
into national law and considered to be part of
the national law, unless they are in conflict
with an Act of Parliament. Comity of nations or
no, municipal law must prevail in case of
conflict. National courts cannot say yes if
Parliament has said no to a principle of
international law. National courts will endorse
international law but not if it conflicts with
national law. National courts being organs of
the national State and not organs of
international law must perforce apply national
law if international law conflicts with it. But
the courts are under an obligation within
legitimate limits, to so interpret the municipal
statute as to avoid confrontation with the
comity of nations or the well-established
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principles of International law. But if conflict
is inevitable, the latter must yield.”
(underlined, for emphasis)
This judgment illustrates the ‘doctrine of incorporation’ of
the covenants of the international treaty to the domestic law.
21. The question again fell for consideration of the Hon’ble
Supreme Court in the context of prohibition of civil
imprisonment for non-discharge of decree debt in Jolly George
Varghese v. Bank of Cochin [(1980) 2 SCC 360]. V.R.Krishna
Iyer J., speaking for the Bench, after taking note of Article
51(c) of the Constitution, held that the international covenant
concerned does not automatically become enforceable as part of
corpus juris of India, but should go through the ‘process of
transformation’ into municipal law, before the international
treaty can become an internal law. It was held that,
international law does not have the force or authority of civil
law proprio vigore, until legislation is undertaken under its
inspirational impact. It is relevant to note that the concept
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of “the act of transformation” has been coined in this
judgment.
22. A pro-active interpretation has been given by the Hon’ble
Supreme Court in Visakha and Others v. State of Rajasthan and
Others [(1997) 6 SCC 241]. In paragraph no.7, it was held that,
to formulate effective measures to check the evil of sexual
harassment of working women, the contents of international
conventions and norms are significant for the purpose of
interpretation of the guaranty of gender equality and right to
work with human dignity in Articles 14, 15, 19(1)(g) and 21 of
the Constitution. This, however, was an interpretation on the
applicability of international covenants and norms, in the
absence of any domestic law occupying the field, which is not
the fact situation we are dealing with.
23. An elaborate consideration of the issue has been received
in Agricas LLP (supra). After referring to the concepts of
monism and dualism, as also, the constitution bench decision in
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Maganbhai (supra), Gramaphone Co. (supra), Jolly George
Varghese (supra) etc., the opinion of the three Judges bench is
reflected in paragraph nos.27, 28 and 29. In paragraph no.27,
the Hon’ble Supreme Court observed that the application of
treaties to national legal system are extraordinarily complex
and vary from country to country, depending upon constitutional
and other Municipal rules. The principle of ‘invocability’ or
‘justiciability’ as contrasted from ‘direct applicability’,
where the treaty norms conflict with the norms of the domestic
law is seen referred to. Quoting Prof.John H.Jackson from his
essay ‘Status of Treaties in Domestic Legal Systems: A Policy
Analysis’, the Supreme Court took note that there is no
uniformity in the provision on the aspects concerned, since
there are different national systems of treaty applications.
Two relevant aspects coined in paragraph no.27 are
1)application of the international treaty in domestic law, and
2)invocability of the treaty in municipal law and before
municipal courts. Further findings in paragraph nos.28 and 29
are extracted here-below:
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“28. In spite of there being different
constitutional and statutory approaches on
applicability, the States as signatories to the
international treaty are under an obligation to
act in conformity and bear responsibility for
breaches, be it as a consequence of legislative
enactment, executive action or even judicial
decisions. The State cannot plead and rely upon
internal law including judicial decisions as a
defence to a claim for breach of an international
obligation. Acts of legislation, executive
measures and judicial decision-making are not
treated as third party acts for which the State
is not responsible. The national law, executive
mandate and action and the decisions of the
domestic courts are facts which express the will
and constitutes activities of the State. In
international law, municipal laws cannot prevail
upon the treaties as internal actions must comply
with the international obligation. They may
constitute breach of the treaty.
29. Thus, breach of a stipulation in
international law cannot be justified by the
State by referring to its domestic legal
position. This rule of international law is
unexceptionable and prosaic, as the contra view
would permit the international obligations to be
evaded by the simple method of domestic
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legislation, executive action or judicial
decision. Contracting States are under an
obligation to act in conformity with the rules of
international law and bear responsibility for
breaches whether committed by the legislature,
executive or even judiciary. In a way, therefore,
international treaties are constraint on
sovereign activity, albeit voluntarily agreed.”
(underlined, for emphasis)
24. Recently, the legal issue is dilated by the Hon’ble Supreme
Court in M/s.Nestle SA (supra). After taking note of the
various judgments on the point, the Hon’ble Supreme Court
summarized its findings in paragraph no.44 thus:
“47. The holding in the decisions discussed above may
thus be summarized:
(i) The terms of a treaty ratified by the Union do
not ipso facto acquire enforceability;
(ii) The Union has exclusive executive power to enter
into international treaties and conventions under
Article 73 [read with corresponding Entries – Nos.10,
13 and 14 of List I of the VII th Schedule to the
Constitution of India] and Parliament, holds the
exclusive power to legislate upon such conventions or
treaties.
(iii) Parliament can refuse to perform or give effect
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to such treaties. In such event, though such treaties
bind the Union, vis a vis the other contracting
state(s), leaving the Union in default.
(iv) The application of such treaties is binding upon
the Union. Yet, they “are not by their own force
binding upon Indian nationals”.
(v) Law making by Parliament in respect of such
treaties is required if the treaty or agreement
restricts or affects the rights of citizens or others
or modifies the law of India.
(vi) If citizens’ rights or others’ rights are not
unaffected, or the laws of India are not modified, no
legislative measure is necessary to give effect to
treaties.
(vii) In the event of any ambiguity in the provision
or law, which brings into force the treaty or
obligation, the court is entitled to look into the
international instrument, to clear the ambiguity or
seek clarity.”
25. Duncan B. Hollis in his paper on ‘Executive Federalism:
Forging New Federalist Constraints on the Treaty Power’ opines
thus on the enforceability of a treaty.
“The treaty lives a double life. By day, it is a
creature of international law, which sets forth
extensive substantive and procedural rules by
which the treaty must operate [….]. By night,
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however, the treaty leads a more domestic life.
In its domestic incarnation, the treaty is a
creature of national law, deriving its force
from the constitutional order of the nation
state that concluded it.”
This is referred in M/s.Nestle SA (supra).
26. OUR ANALYSIS:-
In the light of the above exposition of law, we may summarise
our impressions now. In view of Article 253 of the
Constitution, empowering the Parliament to make law for
implementing any treaty, agreement or convention with other
countries or any decision made at any international conference,
we may safely conclude that our constitutional allegiance is
not monistic, but only dualistic in nature. Here, we are only
following a Constitution Bench of the Hon’ble Supreme Court in
State of W.B. v. Kesoram Industries Ltd. and Others [(2004) 10
SCC 201, at page no.410], which held:
“490. It is true that the doctrine of “monism” as
prevailing in European countries does not prevail in
India. The doctrine of “dualism” is applicable….”
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All the same, Article 51(c) adumbrates India’s directive
principle to foster respect for international law and treaty
obligations in the dealings of organised people with one
another. Therefore, rather than treating the political ethos as
reflected in the constitution as completely dualistic, thereby
meaning that a legislative enactment is required for
implementing any and every international treaty, the right path
lies in striking a balance between the monistic and the
dualistic concepts. We are of the view that Article 253 do not
mandate the Parliament to make law for implementing every
treaty/convention. Instead, the power bestowed by Article 253
is only enabling, in the sense that, Parliament has the power
to make such laws for implementing treaties/conventions.
Meaningfully interpreted, it can only mean that the Parliament
has the power to make law, if the same is necessary for
implementing any treaty/convention.
27. It is in this context that the law propounded by the
Constitution Bench in Maganbhai (supra), which held that making
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of law by Parliament in respect of such treaties/
agreements/conventions is necessary only when the covenants
thereof ‘modifies’ the law of India. As already indicated, the
term ‘modification’ has been elated to that of being in
“conflict with an Act of the Parliament” as enunciated in
Gramaphone Co. (supra). As it is well settled, the terms used
in a judgment are not to be read and understood as Euclid’s
theorem. Always, there exists room for understanding a term,
which has been used earlier, in later context. If one seeks to
understand that modification of municipal law includes any and
every minor deviation thereof, which may perhaps be procedural
and inconsequential, and to insist that legislation
incorporating/transforming the international treaty should
necessarily follow on account of such modification, it appears
that we may miss the wood for the trees. We are of the definite
opinion that, it is not any and every deviation from the law
laid down by the Parliament, which requires a legislation, in
tune with the international treaty. Instead, it is only when
the covenants of international treaty is in conflict with the
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law laid down by the Parliament – in the sense that both cannot
co-exist together – that the doctrine of incorporation comes
into play, mandating a consequential legislation, to give
effect to the treaty covenants. But for that exercise, the
treaty covenants, which are in conflict with domestic/existing
law, cannot be enforced/implemented. This aspect of the matter
is particularly significant, once it comes to the resolution of
the issue at hand before us. We remind ourselves that we are
addressing the issue of enforceability of an international
treaty, in the context of a procedural aspect of serving
summons/notice in a suit, where the defendants are residing
abroad.
28. It is profitable in this regard to refer to the
observations of the Hon’ble Supreme Court as regards the
nature, sanctity and effect of procedural/processual law. In
Sangram Singh (supra), the Supreme Court observed thus:
“16. Now a code of procedure must be regarded as
such. It is procedure, something designed to
facilitate justice and further its ends: not a penal
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enactment for punishment and penalties; not a thing
designed to trip people up. Too technical a
construction of sections that leaves no room for
reasonable elasticity of interpretation should
therefore be guarded against (provided always that
justice is done to both sides) lest the very means
designed for the furtherance of justice be used to
frustrate it.”
29. The above observations are highlighted only to show that
the covenants of the Hague Service Convention only touches upon
a procedural aspect prescribed in the C.P.C, as regards the
mode of serving summons to a defendant residing abroad; and
not, in terms, affecting any substantive provision, or for that
matter, any substantive right of the parties.
30. We will now come back to Maganbhai (supra) to ascertain
whether the mode of service of summons as per the Hague Service
Convention affects the rights of the citizens of this country;
or is in conflict with the provisions of the C.P.C, of which
the latter, we will examine first. Order V, Rules 25, 26 and
26A provide three different modes to effect service on a
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defendant residing out of India. Rule 25 deals with the
situation where the defendant resides out of India, and the
country where he is so residing has no agent in India empowered
to accept service. In such circumstance, summons is to be
addressed to the defendant at his residence, or he may be
served by post or courier service approved by the High Court,
or even by electronic-mail service. Rule 26 prescribes the mode
for service to a defendant residing in a foreign country, over
which the Central Government has appointed a political agent,
or in a situation where a Code has been established or
continued with power to serve summons. Rule 26A is more
significant and is extracted here-below:
“26A. Summonses to be sent to officer to foreign
countries.-Where the Central Government has, by
notification in the Official Gazette, declared in
respect of any foreign territory that summonses to
be served on defendants actually and voluntarily
residing or carrying on business or personally
working for gain in that foreign territory may be
sent to an officer of the Government of the foreign
territory specified by the Central Government, the
summonses may be sent to such officer, through the
Ministry of the Government of India dealing with
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foreign affairs or in such other manner as may be
specified by the Central Government; and if such
officer returns any such summons with an
endorsement purporting to have been made by him
that the summons has been served on the defendant,
such endorsement shall be deemed to be evidence of
service.”
31. Having referred to the three Rules under Order V, we are of
the opinion that the covenants of the Hague Service Convention
providing for service of documents, is quite in harmony with
Rule 26A. Rule 26A envisages service of summons through an
officer appointed by the foreign country, specified by the
Central Government, say by a notification in the official
gazette. Summons are to be sent to the appointed officer,
through the Ministry of Government of India, dealing with
foreign affairs. Service is deemed, if such officer returns the
summons, with an endorsement indicating service on the
defendant.
32. Now, let us examine the provisions of the Hague Service
Convention as regards service of civil and commercial
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documents, which includes the summons. Articles 2 and 3 of the
Hague Service Convention are extracted here-below:
“Article 2
Each Contracting State shall designate a Central Authority
which will undertake to receive requests for service
coming from other Contracting States and to proceed in
conformity with the provisions of Articles 3 to 6.
Each State shall organise the Central Authority in
conformity with its own law.
Article 3
The authority or judicial officer competent under the law
of the State in which the documents originate shall
forward to the Central Authority of the State addressed a
request conforming to the model annexed to the present
Convention, without any requirement of legalisation or
other equivalent formality.
The document to be served or a copy thereof shall be
annexed to the request. The request and the document
shall both be furnished in duplicate.”
33. It could thus be seen that, instead of serving a judicial
document through an officer of the foreign country under Rule
26A, a Central Authority, constituted by each contracting
State, is recognized under the Hague Service Convention. We are
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of the opinion that, the Hague Convention is very close and
proximate to the contemplation in Rule 26A. In other words, the
Hague Service Convention, in its practical effect, only
recognizes Rule 26A, but for the solitary difference of
constituting a Central Authority, as against an appointed
officer, through which service is to be effected. Suffice to
notice that the above provisions of the Hague Service
Convention is not in conflict with the municipal law, so as to
warrant an act of incorporation/ transformation for its
enforeceability. Coming to Rule 26, we are given to understand
that no political agent was appointed; nor was any court
established, wherefore, conflict with that provision does not
arise at all. What remains is Rule 25, which we may deal with
in detail here-below:
34. It remains a fact that, by the implementation of the Hague
Service Convention, the operation of Order V, Rule 25 – insofar
as the contracting States to the Hague Service Convention are
concerned – stands eclipsed, but for Article 10 of the
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Convention, to which detailed reference will be made later. The
surfacing question is whether the provisions of the Hague
Service Convention is ‘in conflict with’ Order V, Rule 25.
While answering, we have to bear in mind the distinction in the
rigor of applying the concept of conflict with law, when it
deals with substantive law vis-a-vis the procedural law. If the
Municipal law, with which the conflict of the international
treaty/ convention has to be adjudged, is a procedural law, we
are of the opinion that the rigor will be less, in contrast to
a substantive law. That apart, out of the three modes
prescribed in Order V, Rules 25, 26 and 26A to serve a
defendant residing abroad, the mode contemplated under Rule 25
alone is being eclipsed by virtue of the Hague Service
Convention, for, we have already found that the provisions of
the Conventions are in genuine harmony with the method
envisaged in Rule 26A. Bearing in mind the change of the
requirement from ‘modifying’ the Municipal law, to that of
being ‘in conflict with’ such law, we are of the considered
opinion that the provisions of the Hague Service Convention,
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insofar as it applies to service of summons/notices to
defendants residing abroad, is not in conflict with the
municipal law/C.P.C.
35. WHETHER THE HAGUE SERVICE CONVENTION AFFECTS ANY RIGHT OF
THE CITIZENS?
We may now address the above issue. It is settled that no party
to a litigation has a vested right in any course of procedure.
The legal position is no more res integra and has been laid
down categorically in the following decisions:
A. Anant Gopal Sheorey v. State of Bombay [AIR
1958 SC 915],
B. Hitendra Vishnu Thakur and Others v. State of
Maharashtra and Others [(1994) 4 SCC 602],
C. Board of Control for Cricket in India v. Kochi
Cricket Pvt. Ltd. And Others [(2018) 6 SCC
287].
36. From the above discussion, we are of the view that the
present fact situation is outside the teeth of the exceptions
carved out in Maganbhai (supra), Gramaphone Co. (supra) and
Agricas LLP (supra).
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37. DUTY OF COURTS WHILE ADJUDGING ENFORCEABILITY OF AN
INTERNATIONAL TREATY:-
It was held in Gramaphone Co. (supra), that the courts are
under an obligation, within the legitimate limits, to so
interpret the municipal statute, so as to avoid confrontation
with the comity of nations or the well established principles
of international law. If and only if conflict is inevitable,
the international treaty/law should yield to the domestic law.
We, therefore, conclude that a harmonious reconciliation of the
covenants of the international law with the provisions of the
domestic law should be the endeavour of all courts, unless of
course, such international covenants are in direct conflict
with the domestic law. This principle of law would also
persuade us to hold that in the given facts, especially in the
context of a procedural law, the courts should not readily
infer a conflict, even if it is conceived that the mode
envisaged in Order V, Rule 25 may have to give way to the mode
prescribed in the Hague Service Convention.
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38. CONCLUSION ON ENFORCEABILITY OF HAGUE SERVICE CONVENTION:-
In the light of the above discussion, we conclude the
discussion by holding that the Hague Service Convention,
insofar as it pertains to service of judicial documents in the
contracting States, does not require an enabling legislation
for the implementation/enforceability of its covenants. Though
an argument was mooted based on Article 15 and 16 of the
covenants by propounding that the acceptance of the same would
amount to amendment of provisions in the C.P.C. dealing with
setting aside an ex parte judgment etc., we are not inclined to
go into that question, inasmuch as the same does not form part
of the issues referred to us. Our conclusion as regards the
absence of dichotomy between the Hague Convention and the
municipal law, insofar as service of documents is concerned,
would not automatically vouch that all other covenants in the
Hague Service Convention are in harmony with the municipal law.
All what we clarify in this regard is that, we, in this
reference, are not called upon to answer the above contention
pertaining to the alleged dichotomy, if any, in the context of
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the provisions of the Code dealing with setting aside ex-parte
judgment etc.
39. ANALYSIS OF THE EXECUTIVE ACTION UNDER ARTICLE 73:-
Before winding up the topic, we should deal with one final
aspect seriously stressed by the learned Amicus based on
Article 73 of the Constitution. According to the learned
Amicus, the Central Government issued notification bearing
no.G.S.R. 24 E dated 12.01.2009, invoking the executive power
under Article 73 to give effect to the Hague Service
Convention. Moreover, an Office Memorandum dated 18.08.2011
bearing no.F.No.12(77)10 Judl was issued by the Ministry of Law
and Justice, Department of legal affairs constituting the said
department as the central authority for service of summons and
notices in foreign countries under the provisions of the Hague
Service Convention, as also, the Mutual Legal Assistance
treaties. One more directive, FTS No.1003/…/15 bearing
no.12(80)/2013-Judl issued by the Department of Legal Affairs,
Judicial Section was also relied upon, all to point out that
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necessary action under Article 73 of the Constitution has been
taken by the Executive, by virtue of which, the Hague Service
Convention has become enforceable. Out of the above, O.M. dated
18.08.2011 is acceptable, inasmuch as it constitutes the
Department of Legal Affairs as the central authority as
envisaged in Article 2 of the Hague Service Convention, as
also, under other treaties for the purpose of summonses/notices
to foreign countries. However, as regards the basic
notification dated 12.01.2009 issued under Section 29(c) of the
C.P.C, we have our own reservations. Section 29(c) is extracted
here below:
“29. Service of foreign summonses.-Summonses
and other process issued by-
(a) xxxx
(b) xxxx
(c) any other Civil or Revenue Court outside
India to which the Central Government has, by
notification in the Official Gazette, declared
the provisions of this section to apply,
may be sent to the Courts in the territories
to which this Code extends, and served as if
they were summonses issued by such Courts.”
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40. It could be seen from the above that Section 29 deals with
‘service of foreign summonses’, as indicated in the heading
itself. It speaks of summonses and other process ‘issued by’
Civil or Revenue Court outside India, to which Section 29 has
been made applicable by the Central Government through a
notification in the official gazette. If there is any such
Civil or Revenue Court outside India, summons and other process
issued by such courts can be sent to the courts in the
territories to which the Code extends and be served, as if
there were summonses issued by such courts. Now, by virtue of
notification dated 12.01.2009, Section 29(c) is made applicable
to all Civil Courts in the countries, who are parties to the
Hague Service Convention. Thus, the effect of the notification
is that summonses issued by such Civil or Revenue Courts
outside India can be sent to the courts in the territories to
which the Code extends, which obviously refers to courts within
the territories of India, to which the Code extends. In short,
Section 29(c) does not cater to summonses and other process
issued by the courts in India to defendants residing abroad.
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Therefore, the notification dated 12.01.2009 cannot have the
effect of incorporating the international covenants to
Municipal law, especially in the context of Order V, Rule 25,
for, the notification governs summons and other process ‘issued
by’ such Civil or Revenue Courts outside India. Therefore, if
the learned Amicus want us to treat the notification dated
12.01.2009 merely as an action pursuant to the Hague Service
Convention, there may be no difficulty. Per contra, if the said
notification is to be treated as an act of
transformation/incorporation of the Hague covenant to Order V,
Rule 25, the argument may not hold the ground. However, the
notification dated 12.01.2009 (to the extent it helps) and the
Office Memorandum dated 18.08.2011 would constitute adequate
action in terms of Article 73, for which reason as well, we are
fully inclined to hold that the Hague Service Conventions,
insofar as it pertains to service of judicial and extrajudicial
document in civil and commercial matters has become
enforceable. We also take stock of the relevant Office
Memoranda issued by the High Court, as also, the Hand Book of
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the Supreme Court, both of which recognise the method of
service under the Hague Convention. The said O.Ms and hand book
would only justify our above view.
41. THE SWIVEL:-
Having held as above, here comes an interesting twist by
virtue of Article 10, which saves service through postal
channels directly to persons abroad. Article 10 of the Hague
Service Convention is extracted here below:
“Article 10
Provided the State of destination does not object, the
present Convention shall not interfere with –
a) the freedom to send judicial documents, by postal
channels, directly to persons abroad,
b) the freedom of judicial officers, officials or
other competent persons of the State of origin to
effect service of judicial documents directly through
the judicial officers, officials or other competent
persons of the State of destination.
c) the freedom of any person interested in a judicial
proceeding to effect service of judicial documents
directly through the judicial officers, officials or
other competent persons of the State destination.”
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42. Of the above, we are only concerned with limb (a), as per
which, the Hague Service Convention shall not interfere with
the freedom to send judicial documents by postal channels
directly to persons abroad, provided the State of designation
does not object. We notice that India had taken
exception/reservation to Article 10, along with Articles 8, 15
and 16. India’s reservation to Article 10, as contained in the
web page of the Hague Conference on Private International Law
(http://www.hcch.net/en/instruments/conventions/status-table/
notification/?csdi=984&disp=resdn) reads as follows:
‘India is opposed to the methods of service provided
in Article 10’.
The scope of India’s reservation to Article 10 is the next
subject matter for deliberation. Does that reservation only
signifies India’s objection to the methods of service provided
under Article 10; or whether that reservation goes to the
extent of opposing the very idea underlying Article 10, which
permits freedom to send judicial documents by postal channels.
We are inclined to hold the former, for, India, as a
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contracting State, can only object to the freedom reserved
under Article 10, insofar as service of judicial documents
within the Republic of India is concerned; and not in respect
of any other country. The way in which Article 10 is couched
and commences would establish that the thrust is upon the
objection, if any, of the ‘State of destination’, which
supports our above interpretation as regards scope of India’s
reservation. Profitable reference in this regard may be made to
the Vienna Convention on the Law of Treaties dated 23.05.1969,
which defines the term ‘reservation’ as follows:
“(d) “reservation” means a unilateral statement,
however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding
to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the
treaty in their application to that State:”
(underlined, for emphasis)
43. Though India is not a party to the Vienna Convention, it
follows the provisions thereof, in practice. This is clear from
the ‘Guidelines/SoP on the conclusion of international treaties
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in India’, the relevant portion of which is extracted here-
below:
“A. International Practice:
Under international law, the law and practices
pertaining to treaties is governed by the Vienna
Convention on the Law of Treaties, 1969. Although,
India is not a Party to the Convention, it follows
its provisions in practice. The Convention codifies
the law, practice including norms concerning the
international treaty making……”
44. The fact that India follows the Vienna Convention in its
practice, though not a signatory thereof, is recognised by the
Hon’ble Supreme court in M/s.Nestle SA (supra) and Ram
Jethmalani and Others v. Union of India and Others [(2011) 8
SCC 1]. Coming back to the facts, as is discernible from the
definition of the term ‘reservation’, the same can only mean
exclusion or modification of the relevant provision of the
treaty, confined in its application to that State, which
further fortifies our above view, as regards the scope of
India’s reservation to the Hague Service Convention, in terms
of Article 10 thereof.
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45. Whether the service effectuated by social media and e-mail
is excluded as a result of India’s reservation to Article 10
was the subject matter of decisions by various courts of U.S.A.
The scope of India’s reservation to Article 10 was the subject
matter in (1)Fed. Trade Comm’n v. PCCare 247 Inc.[12 F.R.D. CIV
7189 (2013)]; (2)Gurung v. Malhotra [279 F.R.D. 215]; (3)In re
South African Apartheid Litigation [643 F.Supp.2d 423
(S.D.N.Y.2009)] and (4)Philip Morris USA Inc. v. Veles Ltd.
[2007 WL 725412]. The various District Courts at United States
took the view that India’s reservation only covers those modes,
which are expressly specified in the Hague Service Convention
and hence, service effected through alternate media like e-mail
to the defendant residing in India is permissible.
46. Per contra, in (1)Agha v. Jacobs [2008 WL 2051061];
(2)Graphic Styles/Styles International LLC v. Men’s Wear
Creations and Richard Kumar [Civil Action No.14-4283
(16-7-2014)], two other District Courts took the view that the
language of Article 10 takes within its sweep service via
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e-mail as well, wherefore, service of summons to the defendant
residing in India through e-mail was frowned upon. In Richmond
Technologies, Inc. v. Aumtech Business Soln. [Case No.11-CV-
0202460-LHK.], the U.S. Court took note that the alternate
service through e-mail etc. are more preferable, since service
in India through the Central Authority takes six to eight
months.
47. The above decisions are referred only to show that there
exists ample room for interpretation as regards the scope of
India’s reservation to Article 10, in respect of which, we take
the call to limit the same, as an objection of the destination
State, without in any manner affecting the rights of the Indian
citizens to send judicial documents by postal channels to other
destination States, provided such States does not object.
48. OUR FINDINGS:-
The above discussion would lead us to hold that the method of
service through postal channels, as envisaged in Order V,
Rule 25, cannot be said to have been excluded/foreclosed
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altogether due to the Hague Service Convention, inasmuch as the
convention itself – speaking through Article 10 – contemplates
such service through postal channels. Thus, even when we hold
that the convention is enforceable, albeit without an enabling
and corresponding legislation, we simultaneously hold that
service to defendants abroad can still be taken through postal
channels, as per the very convention itself, proprio vigore.
49. We may hasten to add a caveat here. As rightly pointed out
by the learned Amicus, there exists no mechanism to ensure
service of summons in the mode envisaged in Order V, Rule 25,
be it a case of service through post or e-mail. As held in
Sangram Singh (supra), the question of actual or deemed service
of summons/notice on the defendant is a matter of pivotal
significance, as it constitutes sufficient notice on the
defendant and confers upon him an opportunity to defend the
action brought against him. Therefore, it should be the
endeavour of every court to ensure in all cases, where service
to defendant abroad is resorted to by postal means or by e-mail
as envisaged in Order V, Rule 25, that the summons/notice is
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served on the defendant, without which, it would not be
legitimate for the courts to proceed further. Thought in that
angle, we may go to the extent of saying that the service of
summons, as envisaged by the Hague Service Convention, should
essentially be the mode, inasmuch as, it ensures service upon
the defendant abroad, in the manner contemplated in the Hague
Service Convention. Harmonising the two options, we may venture
to say that, there is nothing wrong in trying service of
summons on the defendant abroad by the mode prescribed in Order
V, Rule 25; and if the defendant appears before the court
pursuant to such service, well and good, the service is
complete. Alternatively, if the court get a confirmation
regarding service on the defendant – which essentially depends
upon the postal arrangement prevailing in the destination State
– the courts are still at liberty to proceed. However, if both
these eventualities does not happen within a reasonable time,
the parties should necessarily be relegated to the method
envisaged in the Hague Service Convention.
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50. The precise issue received consideration by the High Courts
of Karnataka [Sri.Kaustubha Gudi v. The Management of
M/s.Trilogy E-Business Software India (P) Ltd. and another],
Bombay [North East Organised Floritech Pvt. Ltd. v. M.V.CMA CGM
Cendrillon and Others – MANU/MH/2020/2023] and Delhi [Microsoft
Corporation and Others v. Tech Heracles OPL Private Limited and
Others – MANU/DE/3118/2022]. However, all the judgments refer
to Mollykutty (supra); and the requirements for enforceability/
implementation of an international treaty, in the context of
the law laid down in Maganbhai (supra), Gramaphone Co. (supra)
and Agricas LLP (supra) etc., are not seen considered.
Moreover, the said judgments have not taken stock of the impact
of Article 10 of the Hague Service Convention, as also, the
scope of India’s reservation to the same. The said judgments
therefore offer little assistance to us.
51. REFERENCE ANSWERED:-
On the strength of the above findings, we hold as under:
a) The Hague Service Convention is enforceable, albeit
without an enabling and corresponding legislation.
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The mode of service to defendants residing abroad
should essentially be the one contemplated in the
Convention.
b) Service to defendants residing abroad through postal
channels, as envisaged in Order V, Rule 25, is also
permissible, inasmuch as the Hague Service
Convention itself – speaking through Article 10 –
contemplates the same, provided the destination
State does not object the same. This right, however,
will be subject to the caveat recorded in paragraph
no.49 of this judgment.
c) The declaration of law in Mollykutty (supra) that
summons/notice has to be served on persons residing
abroad in strict adherence to the procedure
prescribed in the O.Ms – that is to say, in accord
with the Hague Service Convention; and that
summons/notice cannot be sent directly to defendants
residing in the foreign country, does not reflect
the correct proposition of law. To that extent, we
overrule Mollykutty (supra).
d) The Registry of this Court will formulate and issue
appropriate guidelines/modified O.M in accord with
the law declared by this judgment.
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e) To address the grievances of litigants nationwide
who encounter challenges when required to initiate
legal processes abroad, we recommend that the
Central Government take steps to establish a portal
or a dashboard dedicated to facilitating this
process. This portal should enable courts and
litigants to submit the necessary documents in
accordance with the procedures outlined in the Hague
Service Convention. Additionally, it should allow
the concerned court officers or litigants to monitor
each step of the process, including serving notice
to defendants residing abroad, and to issue
appropriate acknowledgments to facilitate efficient
case proceedings.
Furthermore, there should be a facility to integrate
this portal with the Case Management Systems
implemented by the Kerala High Court and other High
Courts. This integration will enable all
stakeholders to monitor the entire process
seamlessly, thereby enhancing transparency and
accountability across the board.
The reference is answered as above. We place on record our
profound appreciation to the learned Amicus
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Sri.Jacob.P.Alex, who enviably assisted us to resolve the
issues involved in this reference. Our appreciation is also due
to the learned counsel, who appeared for the respective
parties, as well.
Sd/-
RAJA VIJAYARAGHAVAN V.,
JUDGE
Sd/-
C. JAYACHANDRAN,
JUDGE
Sd/-
C. PRATHEEP KUMAR,
JUDGE
TR/WW