IMPLICATIONS OF THE HAGUE CONVENTION ON SERVICE OF DOCUMENTS IN LIGHT OF THE GAUTAM ADANI US INDICTMENT

On February 18, 2025, the U.S. Securities and Exchange Commission (SEC) informed a New York court that it had invoked the Hague Service Convention of 1965. This treaty facilitates the international service of judicial and extrajudicial documents in civil or commercial matters between member countries.

The SEC is seeking to serve summonses on Mr. Gautam Adani and his nephew, Mr. Sagar Adani, both key figures in the Adani Group, in connection with a high-profile securities and wire fraud case. Recently, both individuals were charged by the U.S. Department of Justice (DOJ) and the SEC in separate criminal and civil proceedings. The charges stem from allegations that they bribed Indian government officials with over $250 million to advance solar energy projects managed by the Adani Group.

LEGAL IMPLICATIONS:

1.       Application of the Hague Service Convention:

The SEC’s reliance on the Hague Convention highlights the necessity for formal, treaty-based processes when serving documents internationally, ensuring due process rights are preserved across jurisdictions.

2.       India’s Role as a Signatory:

India, being a party to the Hague Convention, is obligated to assist in the service of foreign judicial documents through its designated Central Authority, typically coordinated by the Ministry of Law and Justice.

3.       Effect on Judicial Proceedings:

Service under the Convention ensures that summons and complaints are delivered through official diplomatic or judicial channels, making it harder for the defendants to contest jurisdiction or procedural validity on technical grounds.

4.       Strategic Delay or Compliance:

Indian authorities have some procedural discretion in handling such requests, which could affect the pace of U.S. litigation. Non-cooperation, however, could have diplomatic or legal repercussions.

5.       Potential Enforcement and Diplomatic Strain:

High-profile cases involving politically sensitive figures like Mr. Adani could put India-U.S. relations under scrutiny, especially concerning judicial cooperation and enforcement of international anti-corruption standards.

Broader Perspective:

This case is significant not only for its implications on corporate accountability and cross-border corruption enforcement but also for the practical operation of international treaties like the Hague Service Convention in complex, politically charged disputes

APPLICABILITY OF HAGUE CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS IN THE PRESENT CASE

The Hague convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was signed on 15 November 1965.

India acceded to The Hague Convention on 23rd November, 2006 and the Convention was entered into force in India on 1st August, 2007.

The Hague Service Convention applies in situations where a foreign court or judicial authority needs to serve summons on an individual residing in India, or when an Indian judicial authority orders the service of summons on a foreign national or a corporate entity located in a foreign country. For this convention to be attracted both the countries need to be signatory to the Hague Convention.

SERVICE OF SUMMONS ON DEFENDANTS IN INDIA

Service of summons on defendants in India is typically carried out through various methods outlined under the Civil Procedure Code (CPC) applicable in India and international agreements such as the Hague Service Convention. The process generally involves the following steps:

1. Personal Service: The summons is delivered directly to the defendant by a process server or other authorized person. This is the most common method.
2. Substituted Service: If personal service is not possible, the court may permit substituted service, where the summons is published in a local newspaper, affixed to the defendant’s last known address, or communicated through other means as approved by the court.
3. Service by Post: Summons can also be sent to the defendant via registered post or speed post, with acknowledgment of receipt. If the defendant refuses to accept the summons, the court may still consider the service as valid.
4. Service under the Hague Convention: In cases where the defendant is located outside India or the matter involves a foreign party, the service can be effectuated through the Hague Service Convention, following the prescribed procedure for transmitting documents internationally.

Article 10 of the Hague Convention states that

“Provided the State of destination does not object, the present Convention shall not interfere with –

1.  the freedom to send judicial documents, by postal channels, directly to persons abroad,
2.  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,
3. 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 of destination.”

Article 10 has no applicability in case of India as here the service of judicial documents through diplomatic or consular channels is expressly prohibited, except in cases where the recipient is a national of the requesting state. Consequently, for instance- a court in the United States is precluded from effecting service of process in India via U.S. diplomatic or consular representatives, unless the recipient is a U.S. national domiciled in India. Furthermore, all requests for service must be submitted in English or accompanied by a duly certified English translation.

Pursuant to the applicable legal framework, valid service of process in India may only be effectuated through the Ministry of Law and Justice, which serves as the designated Central Authority. The Ministry retains the discretion to reject a service request, provided that it furnishes a reasoned decision for such refusal. In accordance with Article 13, a request may be denied if compliance therewith would infringe upon the sovereignty or security of the state. However, a service request may not be refused solely on the grounds that the state asserts exclusive jurisdiction over the subject matter under its domestic law. Likewise, under Article 29, refusal is impermissible merely because the state’s internal legal framework does not recognize a corresponding right of action.

RECIPROCAL ARMAMENTS FOR SERVICE OF SUMMONS TO THE PERSON RESIDING ABROAD

Section 105 of Criminal Procedure Code (CrPC) speaks of reciprocal arrangements to be made by Central Government with the Foreign Governments with regard to the service of summons/warrants/judicial processes. The same is now provided under section 110 of Bharatiya Nagrik Suraksha Sanhita (BNSS).

The Ministry of Home Affairs has entered into Mutual Legal Assistance Treaty/Agreements with 22 countries which provide for serving of documents. These countries are Switzerland, Turkey, United Kingdom, Canada, Kazakhastan, United Arab Emirates, Russia, Uzbekistan, Tajikistan, Ukraine, Mongolia, Thailand, France, Bahrain, South Korea, United States of America, Singapore, South Africa, Mauritius, Belarus, Spain and Kuwait.

In other cases, the ministry makes a request on the basis of assurance of reciprocity to the concerned foreign government through the mission / Embassy. The difference between the two categories of the countries is that the country having MLAT has obligation to consider serving the documents whereas the non-MLAT countries does not have any obligation to consider such a request.

Summons/notices/judicial processes issued by the Indian Courts.

1. The summons/warrants/judicial processes received by MHA are forwarded to the concerned Indian Missions/Embassies which in turn, takes up the matter with the designated authority in that country. In case of MLAT countries, the manner of communication is as laid down in MLAT and can be either directly between MHA and the Central Authority or can be through the diplomatic channel. The designated authority after considering the request directs its agency to serve the document on the concerned person and the report of the service, if any is also received through the same chain. This is broadly the system in majority of the countries. However, in some countries private companies/NGOs have also been entrusted with the service of judicial papers.

Based on the experience gained, some guidelines are given below which may be followed while making a request to MHA for service of judicial processes. It may, however, be noted that it is the discretion of the requested country to serve the documents and any time frame for a positive response cannot be predicted. All requests for service of summons/notices/judicial processes on persons residing abroad shall be addressed to the Under Secretary (Legal), IS-II Division, Ministry of Home Affairs, 9th Floor, Lok Nayak Bhawan, New Delhi- 110003.

A. All requests shall be forwarded through post only with a covering letter from the Registrar/Court official giving the following information:

a) Material facts of the criminal matter including purpose of the request and the nature of the assistance sought.

b) The offences alleged to have been committed, a copy of the applicable laws and maximum penalties for these offences.

c) Name, designation, telephone and fax number of the person/officer who will be able to give any clarification, if required.

d) The complete address of the issuing authority to which the judicial papers/service reports may be returned.

e) Approval of the competent authority to bear any expenditure, which they be charged by the foreign government/agency for the service of the documents.

f) Degree of confidentiality required and the reasons therefore (in case of confidentiality requirement).

g) Any time limit within which the request should be executed. This will be subject to allowance of sufficient margin of time by the requesting agency, as indicated in para 3(iv) of the guidelines

B. MHA, on receipt of request, will examine it in view of the provisions of treaty, if exists, with the requested country and as per the provision of CrPC in case of non-treaty country.

C. India has a MLAT with Singapore and the Govt. of Singapore has prescribed a proforma which shall be completely filled and sent along with the request for service of judicial documents.

D. MHA requires at least a period of 12 weeks’ times for service of such notices in the concerned countries. It is, therefore imperative that a date of hearing/appearance may be decided accordingly.

E. In the case of non-English speaking countries, the notices should be accompanied with the certified/authenticated translation (in duplicate) in the official language of the country where the notice is proposed to be served.

F. Name and address of the individual/organization should be complete in all respect and PO BOX no. and Passport no. will not suffice as address of the individual.

G. Ministry of Home Affairs responsibility to service the summons is only in Criminal Matters. Hence, summons in Criminal matters only may be sent to the Ministry for service abroad.

H. MHA does not undertake service of the non-bailable warrants of arrest. The service of non-bailable arrest warrants amounts to the extradition of the individual. The request for extradition is based on certain legal procedures contained in applicable treaties negotiated on the basis of the International Principle of Extradition. Such requests are to be forwarded to the Ministry of External Affairs, CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001.

SUMMONS ISSUED BY THE FOREIGN COURTS/AUTHORITIES

The summons issued by the Foreign Courts/Authorities and received in MHA will be served by the State Police through CBI-Interpol. However, Indian Mission/MEA while forwarded such requests to MHA will ensure that:-

a) The summon is followed with a translated copy in the Indian language.

b) A reasonable time say, 10 weeks is allowed after the summons are received in the Ministry of Home Affairs.

c) An Assurance of Reciprocity (AOR) is followed from the countries which insist for the same in respect of Indian Summons.

CONDITIONS FOR A DEFAULT JUDGMENT UNDER THE HAGUE CONVENTION

• A default judgment can be issued if a foreign government does not cooperate in serving summons on a defendant. 
• However, Article 15 of the Convention sets specific conditions:
• The summons must have been transmitted through an approved Convention method.
• At least six months must have passed since transmission, and the court must deem this period reasonable.
• No certificate of service has been received despite reasonable efforts through the competent authorities.
• India’s Position on Default Judgments

India has explicitly stated that its courts may issue a default judgment in cross-border disputes even if no certificate of service is received, provided all Article 15 conditions are met.

CONCLUSION

Thus, in compliance of the Hague Convention India’s ministry of law has asked a district court in Ahmedabad, Gujarat, to deliver the summons to him. The Hague Service Convention is needed to ensure timely and effective service of legal documents abroad in civil or commercial matters. It facilitates the transmission of documents between signatory countries, ensuring defendants in foreign jurisdictions receive proper notice of legal proceedings and providing proof of service. This treaty is particularly important for international cases, as it streamlines the process of serving legal documents across borders.

Written by- Adv. Mili Verma