"the power of attorney is one of the most frequently used instruments in international intercourse."

The Indian diaspora is not only the world's fastest growing, but also one of the most influential. The incumbent Government of India ("Government") has actively targeted this community to source foreign direct investment for nearly two terms, and in this context, the importance of the power of attorney cannot be understated.

Notarizing powers of attorney has become a time-honoured practice in India, deriving its legitimacy from Section 85 of the Indian Evidence Act, 1872, which does not mandate notarization of powers of attorney, but creates a presumption of authenticity as to any power of attorney that has been notarized. Consequently, Indian Courts have come to take a view that is prima facie skeptical towards unnotarized powers of attorney, requiring that the authenticity of any such impugned power of attorney be proved.

This causes an avoidable delay in a judicial system that can be described as semi-paralyzed owing to inadequate infrastructure, procedural compliance that is strict to a fault, and a shortage of judges to decide cases.

The recognition of documents (including powers of attorney) within India that have been notarized outside India by foreign notaries is governed by the fairly concise Notaries Act, 1952 (Act). Section 14 of the Act allows for domestic recognition of documents that have been notarized outside India on the condition of reciprocity; India may recognize the notarial acts of notaries of only those countries that recognize the notarial acts of Indian notaries within their own borders.

Accordingly, Section 14 of the Act goes on to task the Government with identifying all such reciprocating countries by way of notification in the Gazette of India (a weekly public journal and an authorised legal document of the Government). Curiously, the Government has notified just five countries since the commencement of the Act viz. the United Kingdom, Hungary, Belgium, New Zealand and Ireland.

What is striking apart from this seemingly arbitrary selection of notified countries is the absence of those countries that actually host the highest numbers of Indian minorities, such as the United States of America, Canada and the United Arab Emirates.

On perusal of Section 14 of the Act read with the relevant notifications, one could rightfully conclude that the number of countries whereof the notarial acts of notaries are accepted in India is low to a point of purposelessness. However, judge-made law has over decades almost consistently ruled in favour of expanding the ambit of Section 14 of the Act, diluting the dual requirement of reciprocity confirmed by notification for recognition of notarial acts of notaries of foreign countries.

In one of the earlier judicial precedents on the above, Re: K.K. Ray (Private) Ltd., 1967, the Calcutta High Court held while recognizing a document notarized in the United States of America, that "to deny recognition (of the document) in such circumstances is to deny foreign litigants seeking redress and justice in Indian Courts".

The Supreme Court of India, in Jugraj Singh and Another v. Jaswant Singh and Others, 1970, held while recognizing a power of attorney notarized in the United States of America, that it was "satisfied that the power of attorney is also duly authenticated in accordance with our laws".

In the most recent judicial precedent on the issue, Dr. Elizabeth Rajan v. Inspector General of Registration & Others, 2022, the Madras High Court held while recognizing a power of attorney notarized in Malaysia, that "even though there might not be reciprocity between India and another country�the acts of notaries in that foreign country could be given legal recognition by courts and authorities in India".

Despite the abundance of judicial precedent in favour of a liberal interpretation of Section 14 of the Act, rogue judgements such as those of the Calcutta High Court in Re: Rei Agro Ltd., 2015 and of the Kerala High Court in Karachan Veettil Mariyam v. Alima Beevi, 2015, wherein it was independently held by both Courts that a power of attorney notarised in Singapore could not be recognized in India for want of notification in accordance with Section 14 of the Act, still find their way into the ongoing discourse on the issue.

So as to incontrovertibly settle the issue, and with a view to ease business in India, it is imperative for the Government to rectify this decades-old ambiguity that can vitiate a legal document that is foundational to international commerce. The Government must suitably amend Section 14 of the Act by dispensing with notarial reciprocity and broadly allow the acceptance of duly notarized powers of attorney from all jurisdictions.

End-Notes:

• https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8254&context=penn_law_review
• https://indiankanoon.org/doc/200772/
• https://legalaffairs.gov.in/sites/default/files/notaryact_0.pdf
• https://legalaffairs.gov.in/sites/default/files/Reci.Arrang.-Notary.pdf
• https://indiankanoon.org/doc/923377/
• https://indiankanoon.org/doc/710942/
• https://www.livelaw.in/pdf_upload/dr-elizabeth-rajan-daughter-of-late-mrthanarajan-v-the-inspector-general-of-registration-ors-2022-livelaw-mad-60-409561.pdf
• https://www.casemine.com/judgement/in/5728e083e561092708a36bcb
• https://www.casemine.com/judgement/in/56e66820607dba6b53430d62