India and the United States of America ("USA") share ties that have only gotten stronger over time. Both countries complement each other on international platforms and forums boosting trade and business between the two. Beginning from 1950, India and USA have signed over 40 treaties related to commercial, non-commercial and even legal matters.
One such treaty is the Mutual Legal Assistance Treaty in Criminal Matters ("MLAT")1 ratified by the President of India on 1st July, 2005. As on date, India has signed the MLAT with 39 countries2 and USA has signed the MLAT with over 60 countries3. The purpose for a country to enter into a MLAT is to gain access to information in any domestic investigation which otherwise may not have been possible. It is aimed at creating international cooperation between the countries and help minimise crime at an international level.
- Understanding the MLAT between India and USA
As per the MLAT, India and USA 'shall provide the widest measure of mutual assistance to each other, in accordance with the provisions of this Treaty, in connection with the investigation, prosecution, prevention and suppression of offences and in proceedings related to criminal matters.'
a. MLAT Process
Upon signing of the MLAT, the contracting parties must designate a Central Authority to make and receive requests pertaining to criminal law matters. For India, the Central Authority is the Ministry of Home Affairs or any such person designated by the Ministry of Home Affairs. While for USA, the Central Authority is the Attorney General or any person designated by the Attorney General. As per the United States Department of Justice official website, the Office of International Affairs serves as the Central Authority with respect to any evidence and information made or received from foreign authorities under MLATs as well as letters rogatory and letters of requests.4 The Central Authorities are to communicate directly with each other for carrying out the purposes of the treaty.
The assistance provided by the contracting parties are set out in Article 1 of the MLAT and include - taking testimony of persons, providing documents, records, evidence, locating and identifying persons or items, executing requests and seizures etc. However, it must be noted that Article 3 of the MLAT sets out the limitation on the assistance i.e. when the Central Authority may deny assistance to a foreign government. This is usually invoked in cases where when the sharing of information sought may run contrary to the domestic laws of the country from which the information is sought. Article 5 covers the execution of requests and its guidelines between the contracting countries.
When it comes to issuing and receiving foreign legal requests, USA uses the services of Process Forwarding International (PFI), a private firm to receive international requests for service, issue service and complete the certificate of services5. India on the other hand has not been vocal nor have they specified which private or government agency's services are used or to be used to issue or receive such service.
b. Benefits of the MLAT
The benefits of the MLAT have become more apparent over the years. Previously if any domestic company was found to have acted illegally in its branches or offices abroad, it would be difficult for the government to seek documents and papers relevant to the case from foreign jurisdictions. Now with the MLAT, it is easier to get this information and even extradite criminals who have fled the country. In recent years, India has made use of the MLAT investigating scams involving fugitives such as Vijay Mallya and Nirav Modi. In fact, the MLAT can be crucial in obtaining useful intel for a country being targeted by terrorists stemming from another. Thus, the MLAT aims to curb criminal offences using the joint forces of two sovereign countries that normally would have no agreement to cooperate without such a treaty being in place. In fact, in 2016 the US Department of Justice and Federal Bureau of Investigation in partnership with the Indian Ministry of Home Affairs and Mumbai Police conducted workshops in Mumbai, India to assist counter terrorism investigations and prosecutors as to the manner in which requests for evidence in criminal matters6 are to be made.
In 2018, India has also signed with USA a MoU, being a model text agreement by the name of US Homeland Security Presidential Directive-6 (HSPD-6). This agreement would allow India to access USA's database of 'unclassified biographic information of known and suspected terrorists' on a reciprocal basis and exchange information with the Terrorist Screening Centre (TSC), USA. These efforts taken by both the countries show their will and capabilities to work as a team in bringing criminals to justice.
As powerful as MLAT can be, its efficacy is at times negated by the lack of awareness of its existence. Courts on occasion have passed directions and orders against foreign parties not keeping in mind the pre-determined procedure under the MLAT. This leads to confusion or even delays that could have been avoided earlier on. In such cases, courts would then rely on their country's domestic laws when it comes to following procedure involving foreign jurisdictions. Below we will see what domestic statutes and laws would apply concerning foreign jurisdictions, in India and USA.
- Indian laws concerning foreign jurisdictions
Under Indian laws, all civil and commercial matters involving other jurisdictions must be taken up with the Indian Ministry of Law and Justice, and on the other hand all criminal law matters involving other jurisdictions must be taken up with the Indian Ministry of Home Affairs7. Any requests for legal assistance ideally must pass through diplomatic channels between the countries.
India's criminal procedure is governed by the Criminal Procedure Code, 1973 ("CrPC"), while its civil procedure is governed by the Civil procedure Code, 1908 ("CPC"). Both these codes contain provisions involving foreign jurisdictions.
The CPC acknowledges the power of foreign judgments and foreign courts in India. There are provisions in the code that deal with execution of decrees passed by courts in reciprocal territories along with procedure to be followed to get the same enforced in India8. Further, the code also explains what presumptions exist with respect to foreign judgments9 and the test of its conclusiveness10 in the country. As on date India has 11 reciprocal territories, with the United Arab Emirates being added to the list in January, 2020.
The CrPC discusses reciprocal arrangements between India and foreign jurisdictions11. It states that courts would follow those arrangements as provided by the Central Government with respect to service of summons, warrants and judicial processes. The CrPC also states that a letter of request can be made to a competent authority for investigation in a country or place outside India. It further lays down procedure of addressing a Letter of Request or Letters Rogatory by an Indian criminal court in a manner prescribed by the Central Government12. The MLAT would be one such reciprocal arrangement and therefore its procedures must be followed if India and a foreign country have signed it.
As per the guidelines laid down by the Ministry of Home Affairs, Internal Security Division vide their letter bearing no. 25016/14/2007-Legal Cell13 these Letters of Request must be forwarded within the ambit of the MLAT, Memorandum of Understanding/ Arrangement etc. existing between India and any foreign country. Any requests for summons, notices and judicial processes for persons residing out of India must be addressed to the Under Secretary (Legal), Internal Security-II Divisions, Ministry of Home Affairs, New Delhi. However, requests for the service of non-bailable arrest warrants for the extradition of an individual are to be addressed to the Ministry of External Affairs, CPV Division, New Delhi14.
In 2012, the Metropolitan Magistrate, Delhi issued 11 summonses to international websites including Facebook and Google (at their USA headquarters) making allegations of 'promoting class enmity and undermining national integrity'15. The Court had directed the Government of India, Ministry of External Affairs to assist in the matter. However, after official requests were addressed to the US Department of Justice, the Ministry of External Affairs received a reply stating that in line with Article 3 of the MLAT, the Delhi Court's request for assistance could not be executed as it implicated rights of 'free speech' under the US constitution.
In Nimesh Harkisandas Topiwala vs Deepa Dalpatram Topiwala16 the division bench of the Bombay High Court by its order dated 5th May, 2017 discussed how an order passed by an Indian court may be enforced against a party residing in the USA. The Bombay High Court held that since India and the USA had a MLAT in force and that the steps as set out in the MLAT must be followed to execute and enforce an Indian Court order in a foreign jurisdiction. Further, since it was a civil matter the Department of Law and Justice of the Government of India was directed to take the matter up with the Central Authority, USA. We also learn from this case that the MLAT despite having been signed for mutual assistance in criminal matters, its procedures are also applied in civil and commercial matters.
In the matter of Union of India v. Mubarak17, the Hon'ble Supreme Court of India relies on the report of the Public Prosecutor concerning the criminal investigation of the accused in the matter. The concerned paragraph of the report forming part of the aforesaid judgment is as follows:
'12. It is further submitted that the NIA is conducting investigation on the social media and email communication used by the Accused and associates and the process of sending requests to the United States of America (USA) under Mutual Legal Assistance Treaty (MLAT) between Republic of India and USA to get the details of social media accounts and communications between Accused and their associates in India and abroad is under progress.'
One cannot deny the advantages the MLAT has provided for the contracting countries in conducting investigations and legal procedure.
- US laws concerning foreign jurisdictions
With respect to assisting foreign and international tribunals, USA has a federal statute in that regard viz. Title 28 of the United States Code, Part V, Chapter 11718. Under this statute section 1782 states that a party to a legal proceeding outside USA is allowed to apply to an American court to obtain evidence in a non-USA proceeding.
Title 28 of the United States Code, Part V, Chapter 117, §. 1782, reads as follows:
"(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter interrogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.".
For long the use of §1728 has been ambiguous as US courts were not fully clear of its scope. However, this changed with the United States Supreme Court decision of Intel Corp. v. Advanced Micro Devices19. The Supreme Court in Intel Corp. dealt with antitrust claims filed by Advanced Micro Devices against Intel before the Directorate-General for Competition of the Commission of the European Communities. It held that as per §1782 (a)'s language, the provision authorises but does not require a federal district court to assist a complainant. Also, when an application under §1782 (a) is filed the court is free to consider the nature of the foreign tribunal, the character by which proceedings are ongoing abroad, the cooperation of the foreign government or authority towards judicial assistance. It must be noted that the matter was then remanded to the lower court and AMD ultimately lost the case against Intel. However, the Supreme Court's observations in the matter shed light on USA's laws towards foreign co-operation.
In re: Application of the Republic of Kazakhstan20 the United States District Court of the Southern District Court of New York discussed whether the meaning of 'interested person' as set out in section 1782 would include a sovereign state, the case was held in the affirmative. The Court stated that ".section 1782's predecessor statutes explicitly permitted foreign states to request judicial assistance and that the 1964 amendment that added the "interested person" provision to section 1782 was intended to broaden rather than narrow "the scope of those who could seek judicial assistance."
The United States District Court for Eastern District of Pennsylvania in the matter between United States v. Fleet Mgmt. Ltd.21 did briefly discuss the MLAT between USA and India. The case dealt with illegal discharge of oil by a sea vessel and witness warrants were issued to sailors who were Indian citizens. The District Court considered applying the processes under the MLAT to secure the Indian witnesses for trial.
As seen from the above, USA has taken measures in its judicial system to co-operate with foreign governments. Especially with many of the world's largest companies being based in USA itself, the country understands the far-reaching consequences of actions taken by such corporates for their businesses.
It must be noted that countries that have signed the MLAT with each other are obligated to provide the assistance sought (subject to Article 3 of the MLAT), whereas non-MLAT countries do not carry any such obligation. One must also keep in mind that India and USA are also signatories to the Hague Convention22 which provides that in civil and commercial matters a judicial authority of a signatory country may request the competent authority of another signatory country by a letter of request to obtain any evidence23. The Convention turns out to be useful for those signatories that have not signed MLATs between each other. If at all India is dealing with a country which has not signed an MLAT nor is that country a signatory to the Hague Convention then the provisions as set out in the India's CrPC and CPC shall apply. Similarly, for USA, Title 28 of the United States Code, Part V, Chapter 117, §. 1782 shall apply for such countries.
In conclusion, legal ties between India and USA have only strengthened over the years. The two have also signed the 'Agreement for the Surrender of Persons to International Tribunals' dated 26th December, 200224 and the 'India-US Counter Terrorism Initiative' dated 23rd July, 201025 being other treaties related to legal matters. On the world map, one can say that India and USA do consider each other as close allies and great business partners. The correct application of the MLAT will ensure that this relationship will grow even stronger.
1. India's Central Bureau of Investigation official website -http://www.cbi.gov.in/interpol/mlat/UnitedStatesofAmerica.pdf
3. USA's Office of Website Management, Bureau of Public Affairs website- https://2009-2017.state.gov/j/inl/rls/nrcrpt/2012/vol2/184110.htm
4. US Department of Justice website - https://www.justice.gov/criminal-oia/office-international-affairs
5. Government of India, Legal Affairs website - http://legalaffairs.gov.in/sites/default/files/mlat%20%282%29.PDF
6. U.S. Embassy & Consulates in India official website - https://in.usembassy.gov/u-s-department-justice-provides-mutual-legal-assistance-training-counter-terrorism-investigators-mumbai/
7. Embassy of India, Washington DC official website - https://www.indianembassyusa.gov.in/pages?id=12&subid=41
8. Section 44-A of the Code of Civil Procedure, 1908
9. Section 14 of the Code of Civil Procedure, 1908
10. Section 13 of the Code of Civil Procedure, 1908
11. Section 105 Criminal Procedure Code, 1973
12. Section 166-A Criminal Procedure Code, 1973
13.India's Central Bureau of Investigation official website - http://www.cbi.gov.in/interpol/invletterrogatory.php
15. News Article by Economic Times dated 3rd May, 2013 - https://economictimes.indiatimes.com/news/politics-and-nation/us-unable-to-execute-summons-to-websites-including-facebook-google-mha-tells-court/articleshow/19865736.cms
16. Bombay High Court Division Bench order passed in Civil Application No. 56 of 2017
18. Office of Law Revisional Counsel, United States Code website- https://uscode.house.gov/view.xhtml?path=/prelim@title28/part5/chapter117&edition=prelim
19. 542 U.S. 241 (2004)
20. Case No. 15-Misc.-0081 (S.D.N.Y. June 22, 2015)
21. Order dated 25th May, 2007 in Criminal No. 02-279
23. Hague Conference official website - https://assets.hcch.net/docs/dfed98c0-6749-42d2-a9be-3d41597734f1.pdf
24. Government of India, Ministry of External Affairs official website -https://www.mea.gov.in/Portal/LegalTreatiesDoc/US02B0947.pdf
25. Government of India, Ministry of External Affairs official website -https://www.mea.gov.in/Portal/LegalTreatiesDoc/US10B0097.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.