In view of increasing instances of malpractice by Notaries the courts have come across; as a part of the judgment in the case of Dhanlaxmi Chandu Devrukar alias Samina Arif Khan v. The Town Planning /Land Acquisition Officer, Malad (Mumbai) and Others, Justices S.J. Kathawalla and Milind N. Jadhav, at the Bombay High Court have offered comments and suggestions to the Draft of the Notaries (Amendment) Bill, 2021, published by the Department of Legal Affairs, after discussion with and consulting the Advocates of the Court and getting a report prepared in this regard.
A salient feature of the Draft Bill is that it proposes the digitalization of the records of a Notary. Further, provisions have been proposed for the digitalization and automation of notarial work undertaken by Notaries. The following suggestions have been made:
1. Use of Technology: In addition to providing for digitalization and automation of notarial work undertaken by Notaries, the proposed Application /Portal must furnish an updated database of Notaries registered under the Act, along with their name, photograph, registration number, date of expiry of registration etc. This will provide the general public with an additional safeguard to verify whether or not the Notary they have approached is duly registered under the Act.
Simultaneously, the proposed Application/Portal must have an in-built mechanism that would prevent a person from carrying out a notarial act unless such person is duly registered under the Act and their registration has been confirmed on the Application/Portal.
During the course of undertaking a notarial act, the proposed Application/Portal must enable a Notary to simultaneously upload a photograph and such other biometric identifiers, such as a fingerprint scan to confirm the presence of the signatory before a Notary. The Application/Portal may also consider a simultaneous upload of geographical metadata with the photograph of the signatory. This process of GeoTagging will confirm the exact latitude and longitude coordinates of the Notary and the signatory whilst undertaking the notarial work. This measure will certainly remedy the mischief of a Notary notarizing a document in the absence of the signatory.
2. Amending Form XV: Rule 11(2) of the Rules mandates that every Notary shall maintain a Register as per the Form prescribed inform XV. The form prescribed as on date is inadequate and must be amended to add the following additional requirements: (i) the time of notarization; (ii)Number of pages contained in the document being notarized including its Annexures/ Exhibits; (III) Venue of Notarization; (iv) Method by which the person signing the document was identified and by whom; and (v) Remarks the Notary may want to include such as the capacity of the signatory/the physical condition of the signatory. Form XV along with these additions must also be simultaneously introduced on the Portal pursuant to the Draft Bill.
3. Implementing practices from Foreign Jurisdictions: As a result of the Pandemic Covid-19, immense difficulty was faced in notarizing documents. In order to solve this difficulty, various jurisdictions have empowered Notaries to notarize documents remotely. Illustratively, several States in the USA have enabled Notaries to notarize documents remotely by a facility called ‘Remote Online notarization’ (“RON”)’. The process provides for the remote notarization of documents using video conferencing software such as Zoom and Cisco Webex.
Reference in this regard can be made to Executive Order No.202.7 by the State of New York and the Guidelines to Notaries on implementing this Executive Order authorizing RON published by the New York Department of State. The Supreme Court of New York has already upheld the notarization of documents via video conferencing. The Department of Legal Affairs may, therefore, also consider incorporating a provision for “RON” in the Draft Bill.
4. Authenticating Insertions /Alterations /Deletions subsequent to a document being Notarized: In the event that a document contains any alterations, insertions or erasures subsequent to it being notarized, the same shall be authenticated by the Notary by affixing his/her initials near such alterations, insertions or erasures with a note forming a part of the document which sets out the paragraphs in which such modifications are carried out. The note shall be followed by the signature (rubber stamp) of the Notary, along with the date, time and location. The note may be added at the end of the document after the Jurat.
5. Right to Privacy: A Notary's register contains sufficient sensitive and confidential information to enable identify theft/ misuse/ impersonation etc. this sensitive and confidential information, such as a party’s biometric identifier merits protection. Whilst amending the Act and Rules, additional responsibilities must be cast on Notaries to ensure safekeeping and protection of the sensitive and confidential data with which they are entrusted.
6. Mandatory issuance of a receipt for the fees charged by a Notary: Rule 11(9) of the Rules provide that every notary shall grant a receipt for the fees and charges realized and maintain a register showing all the fees and charges realized for every notarial act. However, it has been observed that notaries do not follow this mandate and default in issuing receipts. It is, therefore, recommended that the proposed Application/Portal provide for means to make online payments to Notaries. Further, the proposed Application /Portal must mandatorily issue an electronic receipt for every notarial act undertaken.
7. Increase in Fees: As per Rule10(1) of the Rules, every Notary charges fees for notarizing the document, not exceeding the rates mentioned in the Rules. Further, as per Rule10 (3) of the Rules, a notary may charge a travelling allowance when travelling by road or rail at the rate of Rs 20 per KM. It is pertinent to know that since 1956, the fees charged by Notaries have increased marginally. Hence taking into account increased inflation/fuel prices etc., and the other hardships faced by the Notaries, it is suggested that Draft Bill includes provisions for an increase in the fees charged by Notaries.
This is all the more required considering that now Notaries will now be required to expend additional money in order to equip themselves technologically to comply with the Draft Bill once enacted.
8. Model Code of Conduct: The HC has recommended that a code of conduct for Notaries be introduced along with the Draft Bill. Useful reference may be made to the Notary Public Code of Professional Responsibility published by the National Notary Association in this regard. The proposed Code of Conduct for Notaries would provide for a code of ethics, as also the requirement of periodical training for Notaries. This Code may also incorporate general provisions such as regular dos and don’ts in respect of notarizing documents. This will enable Notaries to adapt to the latest developments in their field. The HC has recommended that Notaries should be prohibited and not permitted to function from vehicles, around the Court ad they should be allotted a designated place in/near court premises to operate.
The HC has directed its Registrar General to forward a copy of its order along with the report of December 9, 2021, submitted by Advocate Nausher Kohli to the Department of Legal Affairs for due consideration, while enacting the Draft Bill.
Case Details
Case Name: Dhanlaxmi Chandu Devrukar alias Samina Arif Khan v. The Town Planning /Land Acquisition Officer, Malad (Mumbai) and Others
Delivered on: February 18, 2022
Bench: Justice S.J. Kathawalla and Justice Milind N. Jadhav
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