Serving Justice, Delayed in Transit: India and the Hague Service Convention

Introduction

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 1965¹ (Convention) is a multilateral treaty designed to streamline cross-border service of legal documents. Its primary objective is ensuring that litigants receive prompt and effective notice of proceedings against them, thereby safeguarding procedural fairness.

The Convention has 83 contracting States and establishes a structured framework for cross-border document service. Article 5² requires each State to designate a Central Authority responsible for receiving and executing service requests under domestic law. Upon completion, the Central Authority issues a certificate detailing the service under Article 6³. The Convention permits various service methods: postal channels, diplomatic channels, judicial officers, diplomatic or consular agents and private individuals. However, the receiving State may object to any of these methods.

In this context, the “requesting State” refers to the jurisdiction where the request for service originates and the “receiving State” is where the documents are to be served. For example, if an action is initiated in the US against a party based in India, the US would be the requesting State and India would be the receiving State.

India’s position under the Convention

India acceded to the Convention on 23-11-2006, with the treaty entering into force on 1-8-2007. Further, on 12-1-2009, the Central Government declared that provisions of Section 29 of the Civil Procedure Code, 1908⁴ (CPC) would ⁵. The Department of Legal Affairs, Ministry of Law and Justice, serves as India’s designated Central Authority for processing service requests.

Despite the Convention’s intent to promote flexibility in cross-border service, India adopted a restrictive approach. India categorically objects to all Article 10⁶ provisions, prohibiting service via post, judicial officers and private individuals. Additionally, under Article 8⁷, India restricts service through diplomatic or consular agents unless the addressee is a national of the requesting State. Consequently, India recognises no direct service methods that bypass its Central Authority mechanism.

Challenges in implementation

While this centralised model ensures uniformity and governmental oversight, it creates significant practical friction. Service requests typically require six months to over a year for execution and confirmation.

Foreign parties must affect service exclusively through India’s Central Authority. While the Convention prescribes procedural details, Indian courts execute service requests under domestic law. The Department of Legal Affairs transmits documents to the appropriate District Courts for service execution per the CPC.

After service completion, courts return proof of service to the Central Authority, which then issues a certificate. Administrative backlogs often delay this process. Moreover, no digital infrastructure exists for submitting or tracking service requests. In Charuvila Philippose Sundaran Pillai v. P.N. Sivadasan⁸, the Kerala High Court recognised this deficiency and recommended creating a dedicated online portal. The Court observed this would enable document submission per the Convention while monitoring service steps and integrating with domestic law, enhancing transparency and efficiency.

For outbound services from India, India is bound by the declarations made by the receiving State. If the destination State has not objected to Article 10⁹, Indian parties may serve through such alternative methods or use the Article 5¹⁰ route through the Foreign Central Authority.

Indian judicial interpretation has evolved through key decisions. The trajectory of Indian judicial interpretation on this issue can be traced through two important cases. In Mollykutty v. Nicey Jacob¹¹, the Kerala High Court adopted a stricter approach, and held that service of documents had to be carried out by the mechanism laid down in Article 5¹². The Court disregarded recourse under Order 5 Rule 25 CPC¹³ i.e. service via post or e-mail, or Order 5 Rule 26-A¹⁴ which allows service via diplomatic channels. This decision depicted treaty conformity but at the cost of procedural flexibility. Later, in 2024, in Charuvila Philippose case¹⁵, the Court held that India has a dualistic model, therefore, by way of Article 253 of the Indian Constitution¹⁶, unless implemented by domestic law, conventions do not have direct enforceability, rather they are persuasive in nature.

Consequently, the Full Bench¹⁷ overruled Mollykutty case¹⁸ to the extent that services must be affected through Article 5¹⁹ exclusively. The Court clarified that Order 5 Rule 25 CPC²⁰ is a valid mechanism if the receiving State does not object to the mode established in Article 10²¹. This position was further reaffirmed in Charuvila Philippose Sundaran Pillai v. P.N. Sivadasan²², wherein the Kerala High Court reiterated that while service via Central Authority is the preferred route, courts may permit other viable methods of service if accepted by the receiving State. This marked a shift from formalism to procedural pragmatism, reflecting compliance with international treaties while also safeguarding domestic laws.

Comparative analysis: India’s approach versus other jurisdictions

(A) United Kingdom

The United Kingdom²³ does not object to Article 10²⁴ of the Convention and allows service via postal channels, judicial officers or private individuals. Therefore, Indian parties can serve UK defendants by methods under Article 10. However, litigants in the UK are obliged to use India’s Central Authority route as mentioned in Article 5²⁵.

(B) United States

The United States allows all forms of services authorised under Article 10²⁶. In Water Splash Inc. v. Menon²⁷, the US Supreme Court held that Article 10(a)²⁸ is a viable and efficient method to service documents unless the receiving country objects to it. This is in line with the international standards and harmonises the transnational legal processes.

However, inbound services into India have proven to be far more difficult. Several US Federal District Courts have highlighted the substantial delays experienced when serving documents into India via the Central Authority. In Richmond Technologies, Inc v. Aumtech Business Solutions²⁹, the Court noted that as India objected to all methods under Article 10³⁰, a delay is inevitable. Therefore, the Court unilaterally allowed service of document through an e-mail under the Federal Rule of Civil Procedure, 2024, Rule 4(f)(3)³¹ as it was also consistent with the international law.

In FTC v. PCCare247 Inc.³², wherein the enforcement action by the Federal Trade Commission involved defendants from India, the Court stated that waiting for approval by the Central Authority of India is not feasible and they will have to resort to serving documents through an e-mail. The Court held that as the parties had been communicating over e-mail from before, the due process requirement was satisfied, and the Convention need not be followed in every instance.

These rulings reflect a consistent judicial sentiment that Indian litigants benefit from procedural flexibility when serving US citizens. However, US litigants face procedural rigidity when serving Indian defendants, as they can proceed solely through Central Authority, with a bar on any other alternative channels. This leads to a procedural asymmetry in favour of outbound service from India.

(C) Singapore

On the other hand, Singapore, which acceded to the Convention in May 2023³³, has lodged a full objection to Article 10³⁴, disallowing services via mail, judicial officers or private agents. Thus, any litigant who wishes to serve a document into Singapore has to do it through Central Authority under Article 5³⁵.

Potential solutions and reforms

To address these implementation challenges, several reform measures merit consideration. First, India should establish a comprehensive digital infrastructure for Central Authority operations,³⁶ including an online portal for submitting service requests, real-time tracking capabilities, and automated status updates. As recommended by the Kerala High Court in Charuvila Philippose case³⁷, such digitisation would enhance transparency and efficiency while maintaining governmental oversight.

Second, India should reconsider its blanket objection to all Article 10³⁸ provisions. A selective approach could permit certain alternative service methods while maintaining control over sensitive cases. For instance, India could allow postal service for commercial disputes while requiring Central Authority processing for matters involving sovereign immunity or national security concerns.

Third, the Department of Legal Affairs should issue comprehensive guidelines to District Courts regarding Convention procedures. These guidelines should standardise processing timelines, establish quality control measures, and create accountability mechanisms for delayed service execution. Clear protocols would reduce administrative backlogs and ensure consistent application of both Convention requirements and domestic law under the Civil Procedure Code, 1908³⁹.

Fourth, Indian courts should recognise contractual waivers of Convention procedures where parties have explicitly agreed to alternative service methods. Following the approach in Rockefeller Technology Investments case⁴⁰, courts could uphold agreements for service via electronic means or courier services, provided such arrangements satisfy due process requirements and do not contravene public policy.

Finally, India should engage in bilateral negotiations with major trading partners to establish reciprocal service arrangements. Such agreements could create fast-track procedures for commercial disputes while maintaining the Convention’s due process protections. This approach would address the current procedural asymmetry and promote more balanced cross-border litigation practices.

Conclusion

The Convention establishes a structured framework for cross-border service of judicial and extra-judicial documents, but implementation varies significantly across jurisdictions. India’s control-oriented approach, with categorical objection to Article 10⁴¹, creates a mechanism that appears procedurally sound but proves inefficient in practice.

Structural improvements are essential, including digitisation of Central Authority operations, clear guidelines for trial courts, and reconsideration of the blanket Article 10⁴² objection. These reforms are imperative to fulfil the Convention’s purpose of ensuring timely and effective cross-border service.