Fundamental Principles of the Indian Notarial System

Posted on by Notarial Services (Sydney)

The 122th issue of the Revista Internacional del Notariado has republished a brief report by the President of the Indian Notarial Association. Shidheswar De’s contribution to the most recent issue of the UINL’s journal, “Fundamental Principles of the Indian Notarial System” commences by establishing the core concern of the notary’s practice, namely the certification of authenticity: “The authentic act offers undeniable guarantees: certain date, probative force and enforceability.” Furthermore, “It is a legal instrument adapted to the needs of society: safeguarding individual freedom, preserving economic interests and assuring transparency.” To put is more succinctly, the notarial act “is an instrument of legal certainty as it is a particularly efficient means of evidence.” [p. 97]

President De then sets out in enumerated form the principles which constitute the “essence of the notarial institution in India.” [Ibid.]

  1. Part I – Notaries and their Function
  2. Part II – Notaries and their Documents
  3. Part III – Notaries Organisation
  4. Part IV – Notaries Ethics

What follows is a summary of the salient points under each of the above headings. Practitioners and members of the public are strongly encouraged to read the original article for more information.

Part I

The authority of the Indian notary is established by noting his appointment by the State and Union of India. Notaries are required to act impartially and independently. Notaries are involved in all judicial activities but also aim to resolve disputes through mediation and other pre-litigation means. Notarial certification is sufficient to establish the authenticity and veracity to documents being signed in both the legal and commercial world. [§§ 1-4]

Part II

The authenticity of the notarial act is drawn from the signature, date and content of the document, which is then archived by the notary. The notary must at all times be guided by the instructions of his client but ensure that the outcome is consistent with the applicable laws. Before a notarized document is produced, the identities and authority of the parties must be ascertained and established. The notary must ensure that the instructions of the parties are not coerced but given voluntarily irrespective of the form that the notarial deed takes. Notaries are responsible for their drafting however they may consider suggestions and drafts that are provided to them, and then augment or amend them as needed. Parties who are authorized to obtain copies of a notarized deed have a right to acquire a copy, and that copy will have the same evidentiary weight as the archived original. The notarial deed can be disputed via judicial channels, otherwise it is considered a conclusive statement on the facts as stated in its content: they “enjoy the benefit of dual presumption of legality and accuracy of content.” Among other functions, the notary has the power to legalise signatures and executed documents as well as certify that documents are true and accurate copies of their originals. All notarised deeds that comply with the aforementioned principles are enforceable throughout India, irrespective of the jurisdiction in which they were drawn. [§§ 5-11]

Part III

Indian law – primarily the Notaries Act 1952 (Ind.) – determines the number of notaries and the distribution of notarial offices, as well as the competence of each notary. Notaries must be members of a professional association governing the notarial profession. United Kingdom law no longer governs the appointment of notaries in India, as it did under section 138 of the Negotiable Instruments Act 1881 (Imp). Individual state laws will determine the qualification and conditions for the appointment of notaries, however all will have the requirement that a degree in law is a fundamental criterion of admission to the profession. [§§ 12-15]

Part IV

Each state of India will determine the supervisory and disciplinary mechanisms that apply to the notarial profession. Notaries are required to act in good faith and in full integrity at all times; this obligation is directed to both the State and their colleagues. Professional secrecy is a value that notaries are expected to observe while discharging their duties to their clients. Notaries must also maintain impartiality, which might involve providing appropriate assistance to a party that is disadvantaged or in a vulnerable position. The efficient and effective discharge of professional duties involves an international notarial system of reciprocity. The choice of notary is a matter for each individual party requiring notarial services. A notary is bound by the professional standards of ethics, according to both local and international law. [§§ 16-22]

The above is a summary of the original report, which was published in the Revista Internacional del Notariado issue 122 on pages 95-98. For more information in relation to this document, readers are strongly encouraged to obtain a copy of the paper as it was originally published from the UINL.

Notarial services in Sydney can be offered strictly by appointment, by contacting us via the online form on this website. All inquiries are answered as soon as possible by a Sydney Public Notary who will be happy to discuss what your requirements are, what kind of notarial act is appropriate and what steps are involved to obtain proper notarisation. In some situations, individuals and businesses can be attended to by a mobile notary at their office or a mutually convenient location. For more information on how we can help, see our Services and Examples pages.