BharatNotary and the law on eNotarisation

January 27, 2025

Summary

  • With the logistical and compliance issues in traditional physical notarisation processes, lawyers and courts are turning towards eNotarisation
  • The law requires presence of the deponent, signature and notarial seal, maintenance of notarial registers, and the notary to identify the deponent
  • BharatNotary complies with the law on notarisation through a secure video conference between the deponent and notary, Aadhaar based electronic signatures, Smart User Liveliness Check, and an electronic notarial register
  • To avail BharatNotary’s services all you need to do is book an appointment. As an introductory offer, BharatNotary services are free till January 31, 2025

eFiling. eSigning. And now, eNotarisation. This latest digital transformation of legal processes in India is a natural consequence of two things - (1) the growing push in recent years for digitization within Indian courts and the broader legal ecosystem, and (2) the judicial acknowledgement of the problems in current physical notarisation processes across the country. 

Globally, countries like the United States and Canada have already embraced eNotarization, offering individuals and businesses a convenient, secure alternative to traditional physical notarization methods. 

Leegality’s BharatNotary brings the benefits of online and remote notarization to India for documents such as affidavits, vakalatnamas and more while ensuring compliance with the requirements under the Notaries Act and the Rules therein. 

Why opt for eNotarization?

Traditional physical notarization is plagued by a number of challenges– 

  • Logistical issues: Notarising a document required taking a printout of the document(s), finding a notary, traveling all the way there, and in many cases couriering the notarised document to the lawyer. This process was expensive, cumbersome and caused delays in filing.
  • Compliance issues: Notaries are supposed to verify the deponent’s identity and witness their signature, and keep a record of all the documents they have notarised. However, what was being practised was far from what the law requires. This threw up problems later in court with parties denying that they signed and notarised a particular document, causing High Courts and the Supreme Court to highlight the need for eNotarisation. You can read about such issues here, and here, and here.

eNotarisation on the other hand brings convenience and compliance to a critical legal process:

  • Ease of Access: Schedule notarizations at your convenience without geographical restrictions or requirement of physical presence.
  • Enhanced Security: Aadhaar-based electronic signatures, identity verification, and liveliness checks ensure the integrity of the process, eliminating risks of fraud or impersonation.
  • Legal Compliance: BharatNotary’s eNotarization process complies with the requirements under Notaries Act and Rules, the Information Technology Act and provides a compliant, efficient and trustworthy alternative to physical notarization.

BharatNotary: How It Works

The BharatNotary process is simple, secure, and compliant with legal requirements:

  1. Schedule an Appointment: Users upload their documents and share essential details via the platform.
  2. Join a Video Conference: At the scheduled time, the notary, the deponent, and (if required) their lawyer or identifier join a secure video call.
  3. Identity Verification: Aadhaar-based e-signatures, Aadhaar Name Verifier, Photo capture, Smart User Liveliness check conducted via screenshare and virtual presence of the deponent ensures verification of identity and ‘presence’ of the deponent.
  4. E-Signatures and Notarization: The deponent and the notary electronically sign the document and the electronic Notarial register which are secured with an audit trail.
  5. Receipt of the e-notarised document: The e-notarized document and e-signed Notarial Register record complete with audit trails, are shared digitally with all parties for their records.

What Does the Law Say About Online Notarization?

Notarization in India is governed by the framework provided under the Notaries Act, 1952 (‘Notaries Act’) and the Notaries Rules, 1956 (‘Rules’) . These statutory requirements as with many laws in India are old and predated a digital era. However, with the increasing trends towards digitization in the legal ecosystem and the Information Technology Act, 2000 which provides for recognition of electronic records; eNotarization is now a reality, grounded in a recognised legal framework which leverages digitization to provide better access, strengthened security and auditable processes. 

A. Statutory requirements for notarization and judicial precedents:

Title Legal requirement How does BharatNotary comply
Presence of deponent The functions of a notary include the verification, authentication, certification and attesting the execution of an instrument and administering oath to take an affidavit from a person. These functions of the notary have been discussed in various judgments and been held to mean that affidavits must be attested ‘before’ a person having the authority to administer oath, or in the ‘presence’ of such person. Judicial precedents affirm that virtual presence fulfils the requirement of physical presence. Therefore, a virtual presence over a video call meets the ‘in the presence of such person’ requirement. Additionally, Leegality’s Aadhaar based e-sign process ensures an additional level of check by capturing a photo and doing a Smart Liveliness Check to ensure the presence of the deponent and the notary.
Signature and Notarial Seal Notaries Act and Rules require the notary’s signature and official seal on the notarised document for valid notarization. BharatNotary digitally affixes the seal and electronic signature of the notary in the e-notarised documents.
Maintenance of Notarial Registers Notaries Act and Rules mandate notaries to maintain a Notarial Register recording details such as the identity of the executant, contents of the document, notarial fee, and signatures of the deponent and notary. BharatNotary ensures maintenance of an electronic register with all the mandatory fields, electronically signed by the Deponent and Notary to ensure compliance with the requirement. Copies of this are provided to the deponent and the notary.

B. Additional safeguards in the BharatNotary process: 

1. Secure Electronic Signature and Secure Electronic Record: 

The e-notarised document and the e-signed Notarial Register are signed using Secure Electronic Signatures and are a Secure Electronic Record which benefit from the presumptions provided under the Bharatiya Sakshya Adhiniyam, 2023 which make it easier to prove an e-notarised document in a court of law. 

  1. Section 66: Presumption that the electronic signature belongs to the signatory whose name is captured in the Aadhaar based eSign
  2. Section 85: Agreements executed with Aadhaar-based e-signatures are presumed valid unless proven otherwise
  3. Section 86:some text
    • Court will presume the signatory's intent to sign or approve the document
    • Court will presume that the document has not been altered after the e-signing
  4. Section 87: Verified information in the electronic signature certificate is presumed to be accurate.

2. Secure Audit trail: The BharatNotary process involves the use of Leegality’s Aadhaar based e-sign which generates an Audit trail for each e-signed document capturing signer details, IP addresses, timestamps, and security checks like Aadhaar verification, Smart User Liveliness check and photo capture. This Audit trail serves as an important document in your arsenal which can be relied on in case of any challenges/ disputes to the eNotarization process or electronic signature. 

C. Recognised and validated by the Delhi High Court: 

We are happy to inform you that a document notarized using BharatNotary has already been accepted and allowed by the Delhi High Court, affirming the validity and compliance of the BharatNotary process with the Notaries Act, Rules and Information Technology Act, 2000. 

                                                                                Click here to read the full Delhi HC order

In an order deciding on a Section 151 CPC application, the Delhi High Court accepted and allowed electronically notarized affidavits executed through BharatNotary and the affidavits were formally taken on record by the court. This recognition underscores the reliability and legal soundness of BharatNotary’s online notarization process.

Get started with BharatNotary!

BharatNotary represents a significant step forward in India’s legal system; it's a solution designed to modernize notarization for individuals, lawyers, and businesses. With BharatNotary, you get the peace of mind that comes from knowing your documents are legally valid, compliant, secure, and handled with the utmost care.

Ready to make notarization seamless and stress-free? Book an appointment now and take the first step toward a smarter, more secure and seamless way of notarizing your documents.

In case of any queries on the BharatNotary process or its legal validity, please reach out to us on bharatnotary@leegality.com

eNotarise your first document! Free till Jan 31