Source:  Karnataka High Court 

Why in News? 

Recently, the Karnataka High Court has set a significant legal precedent in matter of Sagad kareem Ismael v. Union of India & others by ruling that foreign nationals cannot execute Special Power of Attorney (SPA) from outside India to file writ petitions in Indian courts. The court dismissed a petition filed by an Iraqi national through an SPA holder, seeking entry into India for medical treatment.  

• This decision effectively limits the ability of foreigners to use SPAs for legal matters in India, particularly regarding visa applications and immigration issues. 

What was the Background of Sagad Kareem Ismael v. Union of India & others? 

• In 2012 the petitioner, (Sagad Kareem Ismael) an Iraqi national, first visited India on a student visa to study B-Pharma in two colleges in Bangalore. 
•  2017:  
  • The petitioner completed his B-Pharma course. 
  • He departed India after overstaying for 11 months. 
  • Due to overstaying, his name was placed on the blacklist with retention until 22.05.2019. 
  • 03^rd November 2017: The petitioner attempted to travel to India on a medical attendant visa but was refused entry. 
• 02^nd December 2019: Despite previous issues, the petitioner secured a medical visa during the COVID-19 pandemic and entered India. 
• 18^th December 2021: The petitioner departed India when an exit permit was issued to him. 
  • The petitioner filed W.P.No.7696 of 2020, which is still pending in the stage of office objection. 
• 22^nd February 2024:  
  • The petitioner applied for a medical visa to enter India for treatment at Aster CMI Hospital, Bangalore. 
  • His medical investigations in Basra Health Department had detected three small cerebral lesions in his brain. 
  • Aster CMI Hospital opined that he would require medical management, further treatment, and investigation for three months, potentially extendable. 
•  The petitioner submitted his visa application via email and sent reminders. 
• The Foreigners Regional Registration Office (third respondent) directed the petitioner to contact the Indian Mission abroad regarding visa queries. 
• The petitioner executed a Special Power of Attorney (SPA) in favor of a person to represent him in India. 
• The SPA holder filed the current petition seeking a mandamus to direct the respondents to consider the visa application dated 22^nd February 2024 and grant the petitioner entry for treatment. 
• The Union of India opposed the plea, citing the petitioner's history of overstaying and previous attempts to enter India despite being blacklisted. 

What were the Court’s Observations? 

• The court held that a foreign national cannot execute a Special Power of Attorney (SPA) from outside India for the purpose of filing a writ petition under Article 226 of the Constitution of India, 1950 (COI) before any courts in India and dismissed the petition. 
• The court observed that under the Powers of Attorney Act, 1882, a foreigner cannot be represented before the court through a petition filed by an SPA holder for the grant of a visa or passport and or similar immigration issues. 
  • The bench implied that such use of an SPA by a foreign national to file a writ petition in Indian courts is not permissible under Indian law. 
  • While the court did not impose exemplary costs on the petitioner due to his representation through an SPA holder who might not have been aware of all the facts, it clearly stated that such a practice is not acceptable. 

What is the Special Power of Attorney (SPA)? 

• A legal document that grants specific, limited authority to an agent (called the "attorney-in-fact") to act on behalf of the principal (the person granting the power) 
• An SPA is limited to specific transactions or types of transactions. 
• It allows the agent to make decisions or take actions in specific areas, such as: 
  • Selling property 
  • Managing financial accounts 
  • Handling legal matters 
  • Making medical decisions 
• The powers granted are explicitly defined in the document and do not extend beyond what is specified. 
• It can be used when the principal is unable to handle certain matters personally, due to illness, distance, or other reasons. 
• The SPA can be temporary or permanent and revoked by the principal if they are mentally competent. 
•  It's a useful tool for delegating authority in situations where the principal cannot be physically present or wants to authorize someone else to act on their behalf for specific matters. 
•  The document must typically be notarized to be legally valid. 

What are the Essential Components of a Special Power of Attorney (SPA)? 

• Identification of parties: 
  • Full legal name and address of the principal (person granting the power) 
  • Full legal name and address of the agent (attorney-in-fact) 
• Date of execution 
• Specific powers granted: 
  • Clearly define the exact scope of authority 
  • List specific tasks or transactions the agent can perform
• Duration of the power: 
  • Specify if it's for a limited time or until revoked 
  •  Include any expiration date if applicable 
• Alternate agent (optional): 
  • Name a backup agent in case the primary agent is unable to serve 
• Revocation clause: 
  • Statement that the principal can revoke the power at any time 
• Governing law: 
  • Specify which state's laws govern the document 
• Signature requirements: 
  • Space for the principal's signature 
  • Space for notarization 
• Witness signatures (if required by your jurisdiction) 
• Specific instructions or limitations: 
  • Any special conditions or restrictions on the agent's authority 
• Indemnification clause: 
  • Protecting the agent from liability when acting in good faith 
• Compensation details (if any): 
  • Whether and how the agent will be compensated 
• Acceptance by the agent: 
  • A section for the agent to sign, accepting the responsibility 

How to Cancel the Special Power of Attorney India? 

• To cancel a Special Power of Attorney (SPA) in India, you can follow these general steps: 
  • Revocation document: Draft a formal revocation document stating your intention to cancel the SPA. 
  • Include details: Mention the date of the original SPA, the name of the attorney, and specific powers being revoked. 
  • Notarization: Get the revocation document notarized. 
  • Inform parties: Notify the attorney and any third parties involved about the cancellation. 
  • Registration: If the original SPA was registered, register the revocation at the same sub-registrar's office. 
  • Return original: Ask the attorney to return the original SPA document. 
  • Legal advice: Consider consulting a lawyer to ensure the proper procedure is followed.