The Hague convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters1 was signed on 15 November 1965.
The present convention would get attracted where the service of summons are to be affected by a foreign court and/or judicial authority
India acceded to The Hague Convention on 23rd November, 2006 and the Convention was entered into force in India on 1st August, 2007.2
The Hague Convention would get attracted where service of summons are to be affected by a foreign court and or judicial authority on any individual currently residing in India or in cases where Indian judicial authority orders for service of summons on a foreign national or a corporate entity having its office in a foreign country, such foreign country being party to the Hague Convention. Thus, the Hague Service Convention provides for a procedure for the transmission of judicial and extrajudicial documents from one signatory country to the other signatory country.
Prior to the enactment of the Hague Service Convention, the service of process was effected by means of Letters of Request/ Rogatory alone. 'Letter Rogatory'3 denotes a formal communication in writing sent by a Court in which action is pending to the foreign Court/Judge requesting the service of summons or related acts.
As on date a round 68 countries have adopted the Hague Convention.
As regards the nature of the obligations under the Hague Convention and whether the provisions therein are mandatory, the Indian courts till date have still not laid down any precedent in that respect. However, the Supreme Court of the United States of America, in Volkswagenwer Aktiengesellschaft v. Schlunk4, observed through Justice Brennan that the terms of the Convention are "mandatory" with respect to any transmission covered thereunder.
In accordance with the convention, each signatory state is required to designate a Central Authority to undertake to receive the requests for service coming from the other contracting states.5 Accordingly, India has designated, the Ministry of Law and Justice, Department of Legal Affairs6 as the Central Authority under the convention.
The process of service of summons in India has to be effected in accordance with the steps contemplated under the Convention, which are as follows:-
The process of service of summons outside India is to be in accordance with the steps contemplated under the Convention, which are as follows:-
Under the Hague Convention, as agreed upon by India, the service of judicial documents in India is not permitted directly through the State of Origin's diplomatic or consular agents unless the document is to be served upon the national of the State of Origin.26
Furthermore, India has opposed all modes of service under Article 10, which means that no service of documents shall be effected by postal channels, directly through judicial officers, officials, or other competent persons of India, through State of Origin or the persons interested in the Judicial proceedings. This implies that service only through the Central Authority, i.e. the Ministry of Law has been agreed to under the Convention. However, a United States Court has recognized service of summons in India vide facebook and e-mail saying that the same are not covered under Article 10 of the Hague Convention27 and as such India has not opposed such service.
In Anupama Sharma v. Union of India28, the summons issued by the New York Court was privately delivered to the Petitioner in the proceedings which were pending before the New York Court. The petitioner contended that the service of summons was contrary to Article 3 and 5 of the Hague Convention since the summons was served not by the U.S. Court to the Indian Government but privately delivered. The Petitioner also submitted that India had specifically opposed Article 10 of the said Convention, which permits service of summons or judicial documents by postal channels directly to the persons staying abroad. However, the Bombay High Court observed that it will not be possible for it to stay the service of summons while exercising its writ jurisdiction under Article 226 of the Constitution of India and the petitioner can take the said objection before the New York Court and if her contention is right, the New York Court may ask the respondent to serve the summons again, in terms of the provisions laid down under Article 3 and 5 of the Convention.
In addition to the above reservations, it is also open to the country to refuse to comply with the service where the compliance with the request for service would infringe its sovereignty or security.29
In addition to the above, the Hague Convention would become inapplicable30:-
Each Contracting State shall be free to declare that the Judge may give judgment even if no certificate of service or delivery from the Central Authority has been received, if all the following conditions are fulfilled:-
1. Hereinafter called the "Hague Convention"
2. The official website of Hague Conference on Private International Law, as seen on September 1,2015 at 3:55 pm (http://www.hcch.net/index_en.php?act=conventions.status&cid=17)
3. Union of India v. W.N. Chadha, AIR 1993 SC 1082
4. 486 U.S. 694 (1988)
5. Article 2, Hague Convention
6. The Ministry of Law and Justice, Department of Legal Affairs, 4th Floor, A-Wing, Shastri Bhavan, New Delhi, 110001,India
7. Prescribed model forms are available at the website of the Hague Convention at http://www.hcch.net/index_en.php?act=text.display&tid=47
8. Article 3, Hague Convention
9. Article 3, Hague Convention
10. Article 5(1), Hague Convention
11. Article 5(4), Hague Convention
12. Article 12, Hague Convention
13. Article 6, Hague Convention
14. Article 6, Hague Convention
15. Prescribed model forms are available at the website of the Hague Convention at http://www.hcch.net/index_en.php?act=text.display&tid=47
16. Article 3, Hague Convention
17. Article 3, Hague Convention
18. Article 5(1), Hague Convention
19. Article 5(3), Hague Convention
20. Article 5(4), Hague Convention
21. Article 12, Hague Convention
22. Article 6, Hague Convention
23. Article 6, Hague Convention
24. Article 16, Hague Convention
25. Article 16, Hague Convention
26. Article 8(2), Hague Convention
27. Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189. (PAE), 2013 WL 841037
28. W.P.(L) No.119 of 2014
29. Article 13, Hague Convention
30. Article 1, Hague Convention
31. Article 15, Hague Convention