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7. Learned Amicus then took us through the relevant constitutional provisions, as also, the case laws. Our attention was invited to Article 246, 7th Schedule, List 1, Entry 14, and thereafter to Article 253 and Article 73, and finally to Article 51(c). Relying on Article 73, read with Entries 13 and 14 of List 1 of 7th schedule, it was contended that, Executive (Central Government) has the power to give effect to treaties by issuing necessary gazette notification and guidelines. In elaboration, it was pointed out that, India became a signatory to the Hague Service Convention on 23.11.2006 and ratified the same on 01.08.2007. Accordingly, the Ministry of Law and Justice was notified as the Central Authority in accord with Article 2 of the Hague Service Convention. As regards Article 10 of the Convention providing for service by alternative channels, India has taken exception, wherefore, service can only be through the R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 Central Agency. Invoking the executive power under Article 73, the Central Government issued notification (GSR 24E) on 12.01.2009 to give effect to the convention. That apart, the Department of Legal Affairs, Ministry of Law and Justice issued Office Memorandum [bearing F.No.12(77)/10-Judl] dated 18.08.2011 and another one bearing FTS No.1003/.../15 no.12(80)/2013-Judl and yet another Office Memorandum dated 10.09.2018 elaborating the modalities for service abroad. According to the learned Amicus, the said guidelines are enforceable as law. It was also pointed out that, the Hon'ble Supreme Court in its "Hand book on Practice and Procedure and Office Procedure" had detailed in Chapter XVII, titled "Process, Warrants and Service of Documents" the procedure in Hague Service Convention as the proper mode of service. Learned Amicus would submit that, inasmuch as the Hague Service Convention has thus become enforceable in India, service to the defendants residing in the 84 contracting states (parties to the Hague Conference on Private International Law) and 66 other connected parties to Hague conference could be effected through the Hague Service R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 Convention. As regards 14 countries, with which India had executed Mutual Legal Assistance Treaty (Civil), service could be effected as provided therein, in terms of Rule 26A. In respect of other countries, service can be carried out through "Letter Rogatory Route/Diplomatic Channel". Relying on the decisions in Union of India and others v. Agricas LLP and others [(2021) 14 SCC 341] and Union of India and another v. Azadi Bachao Andolan and another [(2004) 10 SCC 1], it was submitted that no legislative measure is required to give effect to the international agreement/treaty, unless the rights of the citizens or others are affected, or its covenants are in conflict with municipal law. As held in Agricas LLP (supra), municipal law has to be interpreted, so as to give effect to the obligations under the international treaty/convention, especially when the covenants of the treaty is not in conflict with domestic law. Article 51(c) was pressed into service to pinpoint the State's duty to make every endeavour in fostering respect for International Law and treaty obligation, which is a directive principle of the State policy. Any attempt to effect R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 direct service on the party may amount to violation of the foreign country's sovereignty, which course is, therefore, impermissible, especially in view of India's exception to Article 10 of the Hague Service Convention.

10. ARGUMENTS OF R2 IN R.F.A. NO.73/2021:-

Adv.Abraham George Jacob, learned counsel for the 2nd respondent in R.F.A.No.73/2021 would submit that the power of legislation is exclusively with the Parliament under Article 253 of the Constitution, wherefore, it is for the Parliament to legislate for enforcement of an international treaty/convention within the Republic of India. The same is the case, if the municipal law has to be changed to accommodate an international treaty. In this regard, learned counsel would rely on a recent judgment of the Hon'ble Supreme Court, titled Assessing Officer Circle R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 (International Taxation) 2(2)(2), New Delhi v. M/s.Nestle SA [2023 SCC Online SC 1372], as also, the various judgments referred to therein. It was pinpointed that the treaties binds the Union, but would not, by its own force, bind the Indian nationals. If the treaty/agreement restricts or affects the rights of citizens or others, or if it tends to modify the law of India, the treaty is not enforceable, in the absence of a law made by the Parliament. It was then contended that the C.P.C confers substantive and vested rights also to the parties, such as the right to appeal, etc., as held by the Hon'ble Supreme Court in Garikapati Veeraya v. N.Subbiah Choudhry and Others [AIR 1957 SC 540], wherefore the provisions in the Code cannot be treated as merely procedural in nature. To ascertain whether the provisions of the Hague Service Convention would militate against the municipal law, learned counsel invited the attention of this Court to Articles 15 and 16 of the Hague Service Convention, to contend that by virtue of Article 16, even the power of the Indian Courts to deal with an exparte judgment, as also, the provisions regarding R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 limitation thereof stand modified by prescribing conditions, which are not there in the Code. Learned counsel would point out that, if Article 2 of the Convention, which deals with service of summons, is held to be enforceable without amending the municipal law/C.P.C, the same treatment will have to be given to the provisions of Articles 15 and 16 as well, the latter of which definitely interferes with the vested rights of the litigants under the C.P.C. On the criticism that Order V, Rule 25 cannot ensure proof of service, it was pointed out that, even in the mechanism under the Article 15 of the Hague Service Convention, the uncertainty prevails. In other words, the service on the defendant residing in a foreign country is dependent on the mechanism available in that country for such service, over which India or its judicial system have no control. Therefore, the ambiguity, if any, with respect to actual service of a postal article abroad, should equally weigh in respect of the service contemplated in Hague Service Convention as well. Learned counsel would hasten to add that the Universal Postal Union (U.P.U.) has established a treaty R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 from the year 1864 onwards, to ensure service of notice through post. As against only 84 contracting parties to the Hague Service Convention, as many as 192 member States, out of the total 195 countries, are part of the Universal Postal Union, is the submission made. It was argued that merely because 84 countries have ratified Hague Service Convention, it cannot be said that the provisions of Order V, Rule 25 has become otiose, since the mechanism in Order V, Rule 25 will have to be adhered to in respect of the non contracting States. Learned counsel relied upon a judgment of the Hon'ble Supreme Court in United States in the case of Water Splash Inc. v. Menon [(581 US SC) 2017], which held that the services contemplated in Order V, Rule 25 can be followed, as long as a State does not object to such mode of service. Learned counsel then pointed out that the notification No. G.S.R.24(E) dated 12.01.2009 of the Ministry of Law & Justice is invoking the power under Section 29(c) of the Code, which caters only to documents issued by courts in other countries to the courts within the Indian territory; and not vice versa. On Article 73, it was pointed out that, the R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 executive power cannot be exercised over domains which are already occupied by the existing laws. The provisions of C.P.C cannot therefore be amended by executive action, as held by the Hon'ble Supreme Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab [1955 KHC 388]. Learned counsel would conclude his argument by submitting that, as long as Order V, Rule 25 has not been modified by the Parliament by necessary enactment/ amendment, the said provisions have to be followed by the courts in India. Learned counsel would thus vouch for reconsideration of Mollykutty (supra).

14. Having heard the learned Amicus and the learned counsel appearing for the respective parties, we will now address the issue hereunder:

15. THE CONSTITUTIONAL PROVISIONS:-

Under Article 246, read with Entry 14 of List 1 to the Seventh Schedule, the power to enter into treaties and agreements with foreign countries and implementing such treaties, agreements and conventions is a subject, over which the Parliament has the exclusive power to make laws. Under Article 253 of the Constitution, a specific power to make law for giving effect to international agreements, is seen bestowed upon the Parliament. Under Article 51(c), the State shall endeavour to foster R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 respect for international law and treaty obligations in the dealings of organised people with one another. Article 73 of the Constitution is relevant and extracted here-below:

"490. It is true that the doctrine of "monism" as prevailing in European countries does not prevail in India. The doctrine of "dualism" is applicable...."

R.F.A.Nos.210 of 2019 & 73 of 2021 2024:KER:84933 All the same, Article 51(c) adumbrates India's directive principle to foster respect for international law and treaty obligations in the dealings of organised people with one another. Therefore, rather than treating the political ethos as reflected in the constitution as completely dualistic, thereby meaning that a legislative enactment is required for implementing any and every international treaty, the right path lies in striking a balance between the monistic and the dualistic concepts. We are of the view that Article 253 do not mandate the Parliament to make law for implementing every treaty/convention. Instead, the power bestowed by Article 253 is only enabling, in the sense that, Parliament has the power to make such laws for implementing treaties/conventions. Meaningfully interpreted, it can only mean that the Parliament has the power to make law, if the same is necessary for implementing any treaty/convention.