India
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CHAPTER XII
INDIA
A. Introduction
The international discovery process in India is primarily governed by
the Hague Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters 1 (Hague Evidence Convention), which was
concluded on March 18, 1970, and came into force on October 7, 1972. It
provides methods for the taking of evidence abroad in civil or commercial
matters. The Hague Evidence Convention seeks to provide an effective
means of obtaining evidence abroad, using different methods and without
facing any discord between civil law and common law systems.2
The Hague Evidence Convention principally provides for two
methods of obtaining evidence: (1) by letter of request;3 and (2) by
diplomatic or consular agents and commissioners. However, the Hague
Evidence Convention does not oust other methods for obtaining evidence
as long as they do not contravene the domestic law of the state from where
the evidence is sought. As a general matter, the process of discovery in
India is governed under the Code of Civil Procedure, 19084 (CPC) in line
with the requirements of the Hague Evidence Convention.
The Competition Commission of India (CCI), which is not a judicial
authority, is also governed by the CPC. One important distinction arises
where the discovery is sought from a person or company rather than the
1. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S.
Convention].
2. Outline-Evidence Convention, HCCH (Sept. 2010), available at
www.hcch.net/upload/outline20e.pdf.
3. For more information on letters of request, including a model letter, see
U.S. DEP’T OF STATE BUREAU OF CONSULAR AFFAIRS, Preparation of
Letters Rogatory, available at https://travel.state.gov/content/travel/
en/legal-considerations/judicial/obtaining-evidence/preparation-letters-
rogatory.html.
4. CODE CIV. PROC., 1908, available at
https://wipolex.wipo.int/en/text/201630.
Obtaining Discovery Abroad
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CCI. Although the process in both the cases would be governed under the
CPC,5 special privileges such as confidentiality un der the Competition Act
might not apply. Accordingly, the person from whom discovery is sought
from abroad may have to rely only on privileges granted to him under the
Hague Evidence Convention.
We discuss the following topics below in relation to the international
discovery process in India: (1) The Competition Act, 2002;6 (2) India and
the Hague Convention; (3) discovery under the CPC; (4) the Evidence Act
1872; 7 (5) limitations on discovery requests; and (6) judicial
pronouncements in India.
An important point to keep in mind is that the competition and antitrust
regime in India is relatively new, with enforcement provisions of the
Competition Act having gone into force in May 2009. Accordingly, it is
still relatively early days, with little competition law-specific guidance on
international discovery to date. Thus, the discussion below is based
primarily on general litigation principles on international discovery and,
where relevant, distinctions that may need to be considered under the
Competition Act.
B. The Competition Act, 2002
1. Role of the CCI
The CCI was established to prevent practices having an adverse effect
on competition in India. In order to achieve this objective, the CCI has
been empowered to investigate matters relating to anticompetitive
agreements and abuse of dominant position by enterprises in India. When
investigating such matters, the CCI regularly summons documents from
third parties to ascertain facts and obtain evidence of such anticompetitive
conduct.
5. See part D of this chapter for a more in-depth discussion of the CPC.
6. Competition Act, 2002, No. 12 of 2003, INDIA CODE, available at
www.liiofindia.org/in/legis/cen/num_act/ca2002149/ [hereinafter
Competition Act].
7. Indian Evidence Act 1872, No. 1 of 1872, INDIA CODE, available at
www.liiofindia.org/in/legis/cen/num_act/iea1872an1o1872192
[hereinafter Evidence Act].
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