The government proposes to amend the Notaries Act to restrict the number of terms a person can practice as a notary to allow more young legal practitioners enter the field.
- Power to suspend certificate of practice: The proposed amendment bill also seeks to extend power to suspend the certificate of practice in cases of professional misconduct by the appropriate government for conduct of inquiry.
- Digitisation of notary: The proposed amendment bill also seeks to digitise notarial work undertaken by notaries.
- Tenure: As of now the number of terms of renewal of certificates of practice of a notary is unrestricted after the initial appointment. It is proposed to restrict the overall term of notaries for a period up to 15 years (initial term of five years and two renewal terms of five years each) by curtailing renewals of unlimited terms.
About the Act
The Notaries Act, 1952 was enacted to regulate the profession of notaries. The provisions of the Notaries Act, 1952 and subsequent rules empower the central government as well as state governments to appoint notaries who possess the prescribed qualifications.
There are fixed number of notaries who are appointed by the central as well as state governments and they are appointed in a particular area, keeping in view the commercial importance and requirement of notaries in that particular area, to avoid flooding of such professionals.
The Centre has come out with a draft Notaries (Amendment) Bill that seeks to make changes to Notaries Act once approved.
Notarisation is mandatory for various judicial and non judicial process including the filing of affidavits before courts and authorities.
Under Section 10 of the Notaries Act, 1952, the authorities can remove the name of a Notary Public found guilty of professional misconduct .
However, there is no provision to suspend the certificate of practice till the completion of inquiry. Consequently, in some cases, despite complaint of prima facie gross misconduct, the notary continues to practice during the pendency of inquiry proceedings.
It is therefore proposed to add provisions in the Notaries Act, 1952 empowering the authorities to suspend a Notary Public against whom a complaint has been received or otherwise, for professional misconduct for such period as deemed appropriate for the conduct of inquiry.
Section 5 of the Notaries Act: deals with entry of names in the register and issue or renewal of certificates of practice, and it is as under:–
“(1) Every notary who intends to practise as such shall on payment to, the Government appointing him of the prescribed fee, if any, be entitled–
(a) to have his name entered in the Register maintained by that Government under Section 4, and
(b) to a certificate authorising him to practise for a period of three years from the date on which the certificate is issued to him.
(2) Every such notary who wishes to continue to practise after the expiry of the period for which his certificate of practise has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time.”
Section 6 of the Notaries Act deals with publication of lists of notaries, and
Section 7 of the Notaries Act prescribes the seal of notaries.
Functions of Notaries
Then Section 8 describes the functions of notaries which are as under:–
“(1) A notary may do all or any of the following acts by virtue of his office, namely:-
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c) 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;
(d) note and draw up ship’s protest, bond protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottom and respondent a bonds, charter parties and other mercantile documents;
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may confirm to the law of the place where such deed is intended to operate;
(h) translate, and verify the translation of, any documents from one language into another;
(1) any other act which may be prescribed.
(2) No act specified in sub-section (1) shall be deemed to be a notaries act except when it is done by a notary under his signature and official seal.”
Section 9 puts a bar on practice without certificate issued under Section 5
QUALIFICATIONS TO BECOME A NOTARY
- 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.
