The Apostille Convention and International Document Authentication
– Shethin C.
With the onset of globalization and the necessity of regulating international trade and commerce, as well as cross-jurisdiction education, civil unions and legal disputes, a major issue that rose in international proceedings was certifying documents issued by one nation, to be valid in proceedings in another nation. In cross-border transactions or proceedings, the production of a public document from a country had, initially, to be subject to various stages of verification and certification and different levels of government to afford such documents international or cross-border authenticity. This process, termed as ‘legalization’ of a document, while necessary in a globally interconnected world, was deemed to be a cumbersome, expensive and bureaucratic task, wasting time and resources of governments around the world. Thus, in 1961, an international treaty being the “Convention of 5 October 1961 Abolishing the Requirement of Legalization of Documents”, called the “Apostille Convention” was drafted by the Hague Conference on Private International Law [“the HCHH”], with the intention to streamline and simplify processes of legally certifying documents of countries party to the treaty.
To understand the importance and relevance of the Apostille Convention, it is necessary to understand what issue it alleviated. In simple terms, if one requires to use a government issued document like a birth certificate or a marriage certificate in a country other than the country issuing the said certificate for legal or any other proceedings thereat, due to obvious differences in functioning, hierarchy and roles of governments in different jurisdictions, there would be no way for a government to confirm the authenticity of the said document, apart from a mutually agreeable procedure. Before the drafting of the Apostille Convention, the standard procedure adopted by countries was that of legalization of documents, which is a process of chained certification of the required document at one or more authorities of the issuing country of the document, as well as those of the country where the document is required. While this posed a bureaucratic risk, several countries had inter se agreements to remove the requirement of legalization altogether, an example of which is the “Acordo de Cooperação em Matéria Civil entre o Governo da República Federativa do Brasil e o Governo da República Francesa” or the Cooperation Agreement in Civil Matters between the Government of the Federative Republic of Brazil and the Government of the French Republic. With issues of not having a uniform system in jurisdictions, or of having cumbersome procedures in others, the HCHH sought to alleviate these issues through the Apostille Convention by providing for a voluntary mechanism of simplifying document authentication for any cross-border formalities involving documents.
The Apostille Convention, applicable only to public documents, or documents issued by government authorities of a country, including but not limited to vital documents like birth certificates, death certificates, marriage certificates, court documents such as judgments, order sheets, office orders, notarial acts and any such document that otherwise would be valid as a public document in the originating country, as provided in Article 1(2) of the Apostille Convention. Any other document that is a private document inasmuch as it is not issued by a government or statutory authority. Further, as provided in Article 1(3), the Convention does not apply to documents issued by diplomatic officers or consular agents, and administrative documents for commercial transactions or customs operations, inasmuch as most documents under these categories are exempt from the process of legalization.
An apostille is an internationally valid certificate affixed to the public document from the issuing country, in a preset format as provided in the Convention, which when affixed grants the document authenticity to be recognized in another country, provided that the receiving country is a signatory to the Apostille Convention. Thus, an apostille acts as a universal authentication mechanism that certifies the authenticity of the origin and authority of the document and the issuer or signatory of the document, thus eliminating any need for further legalization when produced in another member-country. By streamlining the process of authenticating documents, the Apostille Convention reduces administrative burdens and enhances legal certainty for cross-border transactions and administrative processes, which thereby promotes international cooperation and economic development. However, it is pertinent to note, while apostilling a document may grant it international recognizability, it does not do away with additional conditions the recipient country may impose, for instance, requiring translation of a document in a language not used in the country. The process of getting your document apostilled, in plain terms, would be submitting the document to a designated centre or mechanism designated by the relevant ministry of the member country, and following the procedure therein, leading to issuance of an apostille certificate, which may subsequently be confirmed and verified on the official website of the Apostille Convention.
Following the voluntary participation feature of international law, wherein only participant countries of the convention would be bound by the covenants of the convention upon being signatories to the convention and subsequently ratifying the treaty, today, 126 countries are signatories to the Apostille Convention, and each member state designates competent authorities for issuing apostilles within the jurisdiction of their country. India, as a member state of the HCCH, acceded to the Apostille Convention in 2005, and thus, any document apostilled in India would be a fully legalized document not requiring any further attestation of processes of legalization for the purposes of presentation of the document to an authority in a member country. In India, the Ministry of External Affairs (“MEA”) serves as the designated authority responsible for issuing apostilles. The MEA operates through a network of Regional Authentication Centers (RACs) located in each state and union territory in the country. The RACs play a crucial role in facilitating the apostille process by authenticating public documents issued within their respective jurisdictions. The RAC will verify the submitted document after a preliminary verification, following which, upon ascertaining the validity of the document, the RAC will issue an apostille certificate and affix it on the submitted document, thus making it valid for use in member countries for any official purpose. Today, as a member of the Apostille Convention, India and other member states have brought about efficiency in governmental services while reducing burden on them and bureaucratic processes. The establishment of the apostille mechanism through the MEA underscores India’s commitment to facilitating seamless cross-border transactions and promoting global cooperation, thus enabling it to navigate the complexities of international commerce, law, and diplomacy.
The Allahabad High Court, in a recent judgment dated 18th January, 2024 in W.P. (C) No. 19866 of 2023, titled Naromattie Devi Ganpat vs. Union of India with neutral citation 2024:AHC:8647-DB, considered inter alia the question of whether an Apostille certificate issued by the National Archives of Guyana would be a valid document under the Apostille Convention. The case dealt with a United States born person, being the petitioner in the case, applying for an Overseas Citizenship of India card, under the provisions of Section 7A of the Citizenship Act, 1955, on the basis of her being the grandchild of two Indian Citizens who had immigrated to Guyana in 1882. The MEA in this particular case rejected the application, declined the apostilled documents issued by the government officials of Guyana pertaining to the petitioner’s grandparents, and directed the petitioner to produce a nativity certificate instead. On the issue of whether an Apostille Certificate issued by the National Archives of Guyana could be treated as a valid document under the Convention, the Allahabad High Court while allowing the petition, held inter alia as follows:
- India being a signatory of this Convention is bound to accept any public document issued by the other contracting party (country). An ‘Apostille’ document should, therefore, be treated as legalized document in India by all concerned, in accordance with the international obligation under the Hague Apostille Convention.
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- The Government of India has been signatory of the Hague Convention, and accordingly, the Ministry of External Affairs had issued Office Memorandum on 18.11.2020 treating the ‘Apostille’ document as a legal document. Here, when the petitioner had given ‘Apostille’ document showing her ancestry, it is not open for respondent nos.1 to 3 to disbelieve the same and not follow the Treaty, even though they themselves had signed.”
The Courts, including the Supreme Court, have time and again affirmed the position, in various judgments, that a document that has been duly apostilled in the issuing country of the document would not require any further attestation or verification for it to be rendered a legalized document in another member country. Further, the charges for getting a document apostilled in India, when done through the portal provided by MEA for this purpose, are nominal, to the extent of ₹50/- (Rupees Fifty Only) per document. However, as of January, 2024, four agencies have been outsourced to provide this service on behalf of the MEA in various cities, which attracts further payment of ₹90/- (Rupees Ninety Only) as service fee for collection and delivery per document and ₹3/- (Rupees Three Only) per page as scanning fee. Further, the MEA has also established the e-Sanad portal, being the electronic portal for verification and attestation services, for personal, education and commercial documents as made available in the digital repository. In the event the portal does not recognize a document for apostille, then the applicant shall approach the RAC for further physical processing.
The Apostille Convention stands as a cornerstone of international document authentication, providing a harmonized framework for the recognition of public documents across borders. By abolishing the requirement for bureaucratic legalization and introducing the apostille certificate, the Apostille Convention promotes efficiency, legal certainty, and international cooperation. As globalization continues to reshape the landscape of international transactions, adherence to the principles and procedures outlined in the Apostille Convention remains essential for navigating the complexities of cross-border commerce and legal affairs.