[Rishi and Gunjan are students at National Law University Odisha.]
Notarization refers to the process of verifying the authenticity of legal documents. It includes vetting, certification, and record-keeping of documents by a Notary Public. Currently, the process of notarization is governed by the Notaries Act 1952, which places a duty on the Central or State Government to maintain a register with the names, qualifications, and functions of notaries, and to impose penalties in cases of false representation.
While it is imperative to notarize documents to prevent fraud and establish the genuineness of documents, the laws and procedures related to notarization require reconsideration. Notarization in India continues to rely on traditional methods that mandate the physical presence of the signatory before a notary, and the concept of e-notarization has not yet been fully established.
E-notarization is the process of notarizing documents remotely through electronic means, using digital signatures and online platforms. At present, both the Notaries Act1952 and the Information Technology Act 2000 are silent on the aspect of e-notarization. Recently, a judgment by the Delhi High Court allowed an e-notarised document, though it remains unclear whether this can be adopted as a standard practice.
In this post, the authors discuss the validity of e-notarization in India, focusing on the current stance taken by the courts. Furthermore, the authors argue for the need for guidelines pertaining to e-notarization by way of an amendment to the current legal framework allowing for e-notarised documents, making it accessible to all.
Current Legal Framework Governing Digital Records and E-Signatures and the Gaps in the Legal Framework for Electronic Notarization
It is pertinent to note that the term “document” envisaged under the Bhartiya Sakshya Adhiniyam 2023 (BSA) includes electronic and digital records as well. Section 61, subject to Section 63 of BSA, provides for the admissibility of electronic or digital evidence. It further establishes that electronically processed documents will have the same legal validity and enforceability as any other documents. Further, the Information Technology Act 2000 (IT Act) also recognizes electronic records and digital signatures. Section 3(1) of the IT Act provides for the validity of digital records affixed with digital signatures. Moreover, Section 3A outlines the procedure related to electronic signatures. digital signature certificates are issued by licensed Certifying Authorities to authenticate e-signatures, which can be securely used by users. Additionally, e-sign services have been launched by the Central Government to promote digital governance. e-Sign is an online electronic signature service that can be integrated with service delivery applications via an API, facilitating an e-sign user to digitally sign a document. Using the authentication of the e-sign user through the e-KYC service, online electronic signature services are enabled.
Thus, it can be seen that there is acceptance of digital records and digital evidence in India. There also exist provisions governing the procedures regarding the usage of digital records and digital evidence under both the IT Act and the BSA. However, what is interesting to note is that there is no law or guideline providing for the procedure regarding electronic notarization. In fact, the provisions in the Notaries Act 1952 or the Notaries Rules 1956 do not address the acceptance or legal validity of notarized electronic documents. While Section 8 of the Notaries Act 1952 provides for the functions of notaries—which include verification, authentication, certification, or attestation of the execution of any instrument, among others—it does not address the acceptance of electronically notarized documents.
Judicial Recognition of E-Notarization: Key Case Developments
In February 2024, the Delhi High Court in Srinath Kumbargeri Venkatachalappa v. CA Shivaram and Others allowed documents validated through e-notarization. In this case, counsel for the plaintiff requested the court to accept documents signed via the e-notarization process using one of the online platforms, as the plaintiff could not physically visit the notary office. The plaintiff appeared virtually before the officer and digitally signed the affidavit and vakalatnama.
The court, being satisfied with the e-notarization process, accepted the plaintiff's request and allowed the application. The relevant paragraph of the judgment is as follows:
"Mr Tanmaya Mehta, counsel for plaintiffs, seeks permission to file electronically signed and notarised affidavits and vakalatnama. He submits that because of pressing commitments of the constituted attorney, she could not visit the office of the Notary Public. Therefore, the constituted attorney utilized the online notary platform "NotarEase", through which he appeared virtually before a qualified Notary Officer in Delhi and digitally signed the affidavits and vakalatnama in support of the suit and accompanying applications, before the Officer. The entire process for e-notarization has been elaborated in paragraphs 2(a) to (h) of the application. The screenshots of the video call, completion certificate issued by eMudhra, and document log details, explaining the procedure adopted have been reproduced in the applications.
Considering the aforenoted, the court is satisfied that Plaintiff's constituted attorney has electronically signed the notarised affidavits filed along with the suit and accompanying applications as well as the vakalatnama. Accordingly, the application is allowed in terms of prayer 8(a) and (b) of the application."
Furthermore, in another recent case, Singh and Singh Law Firm and Another v. Singh and Singh Attorneys and Others, the Delhi High Court validated the execution of electronically signed documents while hearing a suit seeking protection of the name “Singh and Singh” in relation to legal services. The court ruled in favour of the validity of legal documents executed via the e-notarization process and allowed the application.
While in both cases the courts allowed electronically notarized documents, it remains unclear whether these judgments will serve as binding precedents for future cases involving the acceptance of e-notarized documents.
It is also interesting to note that a few online platforms currently facilitate e-notarization in India. In the absence of any law prohibiting e-notarization, these platforms allow for the remote notarization of documents. For instance, NotarEase hires notaries public who are qualified and registered under the Notaries Act to facilitate electronic notarization. The entire process takes place online, where a user can log in to the website, pay the required fees, and use the services. The notary public verifies the identity of the person online, takes screenshots, and the user can affix their digital signature to complete the process.
Way forward: The Need for Legislative Reform and Comprehensive Guidelines
Currently, there is a lack of clarity regarding the validity of electronic notarization in India. Therefore, comprehensive guidelines on this matter are urgently needed. Amendments can be made to the Notaries Act 1952, to allow for e-notarization and to outline the procedure for the same. While the recent rulings by the Delhi High Court are a welcome step towards digital governance—demonstrating that there is no legal restriction on e-notarization—the absence of comprehensive guidelines makes it difficult for courts to consistently accept and authenticate e-notarized documents. Thus, the legislature should consider introducing necessary amendments to the law, providing for comprehensive guidelines pertaining to electronic notarization.
Conclusion
The authors have argued for the need to bring the necessary amendment to the Notaries Act 1952, in order to introduce comprehensive guidelines related to electronic notarization. It is time to replace the traditional notarization process with the digital or electronic notarization process, considering the present needs of society and the changing times, where electronic transactions and digital communication have become prevalent. Another reason why such guidelines are necessary is that while there are currently a few platforms providing remote notarization services, they remain unregulated. It is important to regulate these platforms and establish a set of standards required for processing electronically notarized documents, while also providing penalties in case of any breach, in line with the objectives of notarization.
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