Yes, Indian law permits the gathering of evidence in aid of foreign litigation in civil/ commercial as well as criminal matters. The key ways in which this can be done are:

1. "Letter of Request"/"Letters Rogatory" mechanism: The request for evidence is routed from the foreign court where the legal proceedings are going on, to the "central authority" of the requesting state, to the "central authority" of the requested state (i.e. India), and finally to the relevant court of India. Once evidence is collected, it is transmitted through the same route in the reverse order.
2. Diplomatic/consular mechanism: The diplomatic/consular officers of the foreign jurisdiction deputed in India, may take the evidence of Indian citizens, in certain circumstances.

Prior to India’s ratification of the Hague Evidence Convention (defined below) in 2007, the sole method of gathering evidence in aid of foreign proceedings was through the Code of Civil Procedure, 1908 (“CPC”), which is the principal legislation governing procedural aspects of civil proceedings in India. The CPC allows persons seeking evidence of a witness residing in India, to file a petition (annexing the letter of request from the foreign court) before the relevant Indian High Court. Even after the ratification of the Hague Evidence Convention, such requests for evidence-gathering at the instance of a foreign court continue to be entertained and allowed by Indian courts, in terms of the CPC. This presents a more expeditious route for obtaining evidence.

Broadly, the legal framework governing the gathering of evidence through these mechanisms is as follows:

1. Treaty-based framework: This framework governs the Letter of Request and diplomatic/consular mechanisms. It consists of the United Nations the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), and bilateral Mutual Legal Assistance Treaties (“MLATs”) signed by India; and
2. Statutory Framework: Under the CPC, requests for evidence can be made directly before an Indian court, at the instance of a foreign court. Additionally, the CPC and the Code of Criminal Procedure, 1973 (“CrPC”) contain the enabling municipal law provisions for giving effect to Letter of Requests under the Hague Evidence Convention.

Yes, India acceded to the Hague Evidence Convention; and became a signatory on February 7, 2007, by way of ratification.

Additionally, as a supplement to the Hague Evidence Convention, India has signed MLATs with various countries. These enable cross-border gathering and obtaining of evidence (whether physical, documentary or testimonial) and other forms of legal assistance in both (a) criminal investigations and prosecutions; and (b) civil and commercial matters.

Finally, the statutory provisions that (a) allow evidence-gathering at the request/instance of a foreign court; and (b) enable the execution of a Letter of Request (under the Hague Evidence Convention or an MLAT), are enshrined in the CPC and the CrPC. By way of background, the Indian court system is organized as follows: (a) the Supreme Court at the national level; (b) High Courts, established at the state/ union territory level (the territory of India is divided into several states or union territories) – which enforce gathering of evidence in civil matters; and (c) lower/district courts (including courts of Chief Metropolitan Magistrate/Chief Judicial Magistrate) – which enable the gathering of evidence in criminal matters.

1. CPC

The request for evidence may be made to the jurisdictional High Court through a Letter of Request issued by a foreign court and (i) transmitted to such High Court by the central authority (see our response to "Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests."); or (ii) produced directly before such High Court by a party to the foreign proceedings (see our response to "Does your jurisdiction permit gathering evidence in aid of foreign litigation?").

The High Court is required to satisfy itself that (i) a foreign court wishes to obtain evidence of a witness in any proceeding before it; (ii) the proceeding is of a civil nature; and (iii) the witness is residing within the High Court’s local jurisdiction. The High Court may then constitute or ‘issue’ a commission to gather the evidence requested. The High Court can also issue the commission to any other court within whose local limits, the witness resides (for instance, a district/ trial court or a court of first instance). [Sections 75 to 78 read with Order XXVI of the CPC]

2. CrPC

Similarly, the CrPC requires a court to act on a request from a foreign court for service or execution of (i) a summons to any person to produce evidence (documentary or physical), or (ii) a search warrant, issued by a court, judge or magistrate in a foreign contracting state. The relevant Indian courts for this request are the lower/ district courts i.e. the Chief Metropolitan Magistrate or Chief Judicial Magistrate (or any other ‘special court’ in subject-specific cases such as prevention of money laundering).

The magistrate then summons the person from whom evidence is sought and records such person’s statement, causes the document/ evidence to be produced, and/or executes the search warrant through law enforcement agencies (i.e. the police). [Sections 105, 105K, 166A of the CrPC]

In both cases, all evidence (or authenticated copies, in case of documentary evidence) gathered pursuant to a Letter of Request is collected is forwarded by the High Court/lower court to the central authority, for onward transmission to the requesting foreign jurisdiction.

Under the Hague Evidence Convention route for gathering evidence, Article 2 requires contracting states to designate a "central authority" for receiving letters of request from a judicial authority of another contracting state and for transmitting them to the authority competent to execute them (for instance, the High Courts, as discussed above). This designated central authority in India is the Union Ministry of Law and Justice, Department of Legal Affairs, situated in New Delhi (“Law Ministry”). On the other hand, in case of a request for evidence pursuant to MLATs signed by India with other countries, the Ministry of Home Affairs (Internal Security-II Division) (“Home Ministry”) is the relevant central authority.

Once the Law Ministry/Home Ministry (as the case may be) receives a Letter of Request, it generally forwards the Letter of Request to the relevant High Court/magistrate for execution (see our response to "Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes.").

The Indian Evidence Act 1872 (“Evidence Act”) defines evidence broadly i.e. encompassing both, oral evidence (depositions) and documentary evidence (electronic and non-electronic). This scope of evidence is not limited in any manner by the CPC or the CrPC. Indian courts have also upheld the view that the term ‘evidence’ is sufficiently wide to bring with its reach both oral and documentary evidence. In addition to documentary/ physical evidence, commissions issued by High Courts under the CPC (see our response to "Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes.") also have the power to undertake investigations of documents/properties situated within the limits of their jurisdictions. Thus, all in all, the information that may be sought through requests for evidence is wide-ranging – and includes depositions, requests for documents, written questions and inspection of property/documents.

Having stated that, India has made a declaration to Article 23 of the Hague Evidence Convention. Accordingly, India does not execute Letters of Request for the purpose of obtaining pre-trial discovery of documents i.e. requests which require a person to produce any documents which are likely to be in his possession, custody or power, other than the particular documents specified in the Letter of Request.

Under the Evidence Act, the burden of proof as to the existence of any fact is on the person claiming such existence. Therefore, if the evidence is sought from any person in India who wishes to claim any privilege under Article 11 of the Hague Evidence Convention, then the burden to prove that such privilege exists shall lie on the person from whom evidence is sought.

Courts in India have held that they do not have the power to go into the propriety of a Letter of Request or examine the relevance/admissibility of the evidence sought by a foreign court. This determination is the prerogative of the foreign court issuing the Letter of Request. Courts in India proceed on the assumption that the very fact of issuance of a Letter of Request means that questions of relevance and admissibility of the evidence sought have been decided by the requesting foreign court in accordance with applicable domestic laws.

India allows depositions to be conducted remotely and via different audio/ visual/ video-conferencing platforms like Zoom and Google Meet (depending on which platform is used by the relevant courts here), to which all principles of evidence-taking under the Evidence Act and the Information Technology Act, 2000 would apply. Comprehensive guidelines for cross-border evidence collection have been devised by the Home Ministry and by several High Courts in India, to cater to situations where a witness is located inter-state within India or overseas.

This permissibility as well as enabling guidelines for remote depositions would also extend to depositions pursuant to foreign requests for evidence.

At present, no such blocking statutes exist in India.

Please also see (a) the exclusion regarding pre-trial discovery in our response to "What types of information can be sought? Requests for Documents? Written questions? Depositions?" above; and (b) the position on voluntary evidence-giving in our response to "May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice?" below.

As stated above, there are no blocking statutes in force in India – accordingly, there is no explicit statutory restriction (including, restrictions incumbent on Indian nationals) on rendering evidence in foreign proceedings.

Having stated that, India has made a declaration to Article 16 of the Hague Evidence Convention, indicating its preference for approval by the central authority (i.e. the Law Ministry) before evidence of Indian nationals is taken for use in ongoing legal proceedings in another contracting state. Pursuant to such declaration, evidence of Indian nationals, is sought to be taken by diplomatic officers or consular agents (i.e. for instance, in cases where an American diplomatic officer deputed to India is required to take evidence of Indian/third-party nationals for ongoing proceedings in American courts) can only be taken with the prior permission of the Law Ministry.

Yes, the arbitration law regime in India prescribes a parallel mechanism for evidence collection. Section 27 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) allows tribunals/parties to directly seek court assistance in taking evidence, by making an application to the jurisdictional High Court. By an amendment to the Arbitration Act in 2015, this provision for evidence gathering has been made applicable by default (but on an opt-out basis i.e. subject to the parties’ agreement) even to foreign arbitrations i.e. arbitrations seated outside India. In such cases, the jurisdictional High Court may (a) execute the request and obtain evidence by itself; or (b) order that evidence is provided directly to the tribunal by the person(s) in whose name(s) the requests have been made.

In cases where the parties have opted out of the Arbitration Act provision above (which is relatively infrequent), however, the process under the Hague Evidence Convention may be applied in case of foreign arbitrations. Having stated that, while it has been suggested by academicians that the Hague Evidence Convention may be used in aid of international arbitration proceedings (i.e. the foreign tribunal would make a request to the courts of the seat, which would then request judicial assistance from Indian courts, through Hague Evidence Convention channels), there is little authority on this proposition. In practice, not many such requests are seen – and it would be useful to observe how the practical use of the Hague Evidence Convention in foreign arbitrations shapes up in India.