In this blog post, Gitanjali Balakrishnan, a student at Savitribai Phule Pune University and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, describes the role of a notary.
WHO IS A NOTARY?
A Notary is essentially a Public Officer appointed by the Central Government for the whole of India or any part of its territory, or the State Government (for a whole or any part of a state) as the case may be. A Notary is a person with authority to draw up deeds and perform other legal formalities. Notaries are, therefore legal professionals who are publicly authorised to draw up or attest contracts or similar documents, to protest bills of exchange, etc. and discharge other duties of a formal character. [1]
WHICH LEGISLATION GOVERNS NOTARIES IN INDIA?
The Notaries Act, 1952 and the Rules (primarily the Notaries Rules, 1956) thereunder and the amendments made there to govern the profession of Notaries in India.
WHO CAN APPLY TO BE REGISTERED AS A NOTARY?
The Notaries Rules, 1956 govern the entire procedure of appointment of a legal practitioner as a Notary:
QUALIFICATIONS FOR APPOINTMENT AS A NOTARY[2]:
THE FOLLOWING PEOPLE MAY APPLY:
- An individual who has been practising at least for ten years, or
- A person belonging to Scheduled Caste/Scheduled Tribes and other backwards classes who has been practising at least for seven years, or
- A woman who has been practising at least for seven years, as a legal practitioner, or
- The individual has to be a member of the Indian Legal Services under the Central Government, or
- The individual has at least for ten years,-
- Been a member of the Judicial Service; or
- Has held an office under the Central Government or a State Government requiring special knowledge of law after enrolment as an advocate, or held an office in the Department of Judge Advocate General or in the Legal Department of the armed forces.
Therefore, only a legal professional with prior experience may apply to be declared a Notary Public.
HOW TO APPLY:
Rule 4 of the Rules, 1956 prescribes the procedure for application for appointment as a Notary Public in India.
- Step 1- Form of Application: A person may make a request for appointment as a notary in the form of a memorial. The format of application of the memorial is provided at the following link (http://www.lawmin.nic.in/notary/Fresh%20Application%20data.pdf). The form of memorial for a person who has practised for at least ten (10) years shall be in accordance with Form I.A person referred to in clauses (b) and (c) of the aforementioned rule in accordance with Form II.[3] The memorial of a person referred to in clause (a) of rule 3 shall be signed by the applicant and shall be countersigned by the following persons,-
- A Magistrate,
- A manager of a nationalised bank;
- A merchant; and
- Two prominent inhabitants of the local area within which the applicant intends to practise as a notary.
- Step 2- Application to the Competent Authority: The application for appointment as a notary by the Applicant, shall be made through the concerned District Judge or the Presiding Officer of the Court or Tribunal where he practices as an Advocate, in the Form of memorial addressed to the Competent Authority of the appropriate Government as that Government may, by notification in the Official Gazette, designate in this behalf.”[4] The Application shall be sent to the following address:
The Competent Authority (Notary Cell),
Department of Legal Affairs,
Ministry of Law & Justice,
4th Floor, Shastri Bhawan, New Delhi-110001.
- Post application process:
- Competent Authority’s Report: The appropriate authority examines every application received by him and rejects the application if the conditions above of application are not satisfied with or if any previous application of the applicant for appointment as a notary was dismissed within six months before the date of the application, and inform the applicant accordingly. Further, he may, if he thinks fit, ascertain from any Bar Council, Bar Association, Incorporated Law Society or other authority in the area where the applicant proposes to practice, the objections, if any, to the appointment of the applicant as notary, has to be submitted within the time fixed for the purpose.[5] After holding such inquiry as he thinks fit and after giving the applicant an opportunity of making his representations against the objections, he shall make a report to the appropriate government recommending either that the application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected.[6]
- Considerations that guide the Competent Authority in making the report:[7]
- Residence: Whether the applicant resides in the area in which he proposes to practice as a notary;
- Number of Notaries already practising in Applicant’s proposed area of practice: Considering the commercial importance of the area in which the applicant proposes to practice and the number of existing notaries practising in the area, the necessity to appoint any additional notary for the area;
- Objections raised against appointment: In the light of his knowledge and experience of commercial law and the nature of the objections, if any, raised in respect of his appointment as a notary, and in the case of a legal practitioner also to the extent of his practice, the applicant is fit to be appointed as an attorney;
- Number of Notaries in a firm: Whether having regard to the number of existing notaries in the firm of legal practitioner of which the Applicant is a part, it is proper and necessary to appoint any additional notary from that firm; and
- Suitability: Considering, applications from other applicants in respect of the area, are pending, whether, the applicant is more suitable than the others.
- Appointment: An applicant is to be notified of every order passed by the appropriate Government, i.e., whether his application has been rejected or allowed to whatever extent.
APPOINTMENT
Where the application is allowed, the appropriate Government shall appoint the applicant as a notary and direct his name to be entered in the Register of Notaries maintained by that Government under section 4 of the Act and issue to him a certificate on payment of prescribed fees authorizing him to practise in the area to which the application relates or in such part thereof as the appropriate Government may specify in the certificate, as a notary for a period of five years from the date on which the certificate is issued to him.[8]
WHAT ARE THE POWERS AND FUNCTIONS OF NOTARIES?
ONCE APPOINTED, A NOTARY MAY PERFORM THE FOLLOWING ACTS BY VIRTUE OF HIS OFFICE:[9]
- Verify, authenticate, certify or attest the execution of any instrument;
- Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
- Note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such note or protest;
- Note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters;
- Administer the oath to, or take an affidavit from, any person;
- Prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
- Prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is entitled to operate;
- Translate, and verify the translation of, any document, from one language into another;
[(ha) act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;]
[(hb) act as an arbitrator, mediator or conciliator, if so required;]
- Any other act which may be prescribed.
NOTARY AS A CAREER
A career as a Notary falls within the broad, formal framework of what is known as a “profession”. It is stated in the preamble of the Act (Notaries Act, 1952) that the purpose of the Act is to regulate the profession of notaries- this automatically implies that there is a level of formal training that is required before one is declared as a Notary Public. As mentioned earlier, only a legal professional having practised for a few years can apply to be declared a Notary Public.
Notaries across the country are notorious for creating an undignified approach to this as a Profession. A relatable example of this would be – attestation of documents. If we examine the rationale behind certification, it becomes evident that a Notary is required to authenticate the document such that is becomes an evidence of its content or subject matter. The current scenario is dismal in juxtaposition as documents are stamped, sealed and verified without as much as a preliminary appraisal.
As mentioned, the profession is as good as the professionals practising it. This profession is equally essential to the legal system as any other field in the administration of justice. Hence, there is an obligation on the Notary to discharge his duties efficiently and ethically.
References:
[1]S. 2(d) Notaries Act, 1952; P. RAMANATHA AIYAR CONCISE LAW DICTIONARY
[2]Rule 3, Notaries Rules, 1956
[3]Rule 4 (2) & (3) Ibid
[4]Rule 4 (1) Ibid
[5]Rule 6 of the Notaries Rules, 1956
[6]Rule 7 Ibid.
[7]Rule 7 (3) Ibid
[8]Rule 8 (4) Ibid
[9]S.8 Notaries Act, 1952
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