In the present age, trans-border transactions have become common across the globe. There is therefore a requirement that countries recognise each other’s legal systems and documents executed in their respective countries. In order to simplify this process, several countries have entered into conventions for recognising documents signed in each other’s countries. Where countries have entered into a #convention, the convention along with the laws of the receiving country will be taken into consideration when receiving documents. But there are instances where countries have not entered into agreements or conventions and in such cases, the laws of the countries receiving the documents has to be taken into account.
A) Reciprocating countries:
If the foreign national is executing the document/affidavit in any of the following reciprocal countries, with which India has #reciprocal arrangement to recognise their notarial acts, then he has to get the document/affidavit #notarised in such country. Currently, the following are recognised as reciprocating countries for the purpose of #recognition and #enforcement of #notarialacts:
- United Kingdom, the Isle of Man and Channel Islands comprising Guernsey and Jersey
- New Zealand
Additionally, if the country is also a Party to the Hague Apostille Convention 1961, then, the document also has to be #apostilled in keeping with the Hague Apostille Convention 1961.
B) Non- Reciprocating countries:
1- If the foreign national is executing a document/affidavit in non-reciprocal countries, then he has to get it notarised and consularized, i.e. obtain Embassy Legalization by the Consular Office of India located in such country.
Additionally, if the country is a Party to the Hague Apostille Convention 1961, then, the document also has to be apostilled first, and then consularised.
2- If the foreign national is executing a document/affidavit in non-reciprocal countries and non-Apostille Member countries, then he has to get it notarised and consularised by the Consular Office of India located in such country.
The aforesaid position has been recognised by the #courts and the Delhi High Court has re-affirmed in the case of Crocodile Int. vs Lacoste 2007 SCC OnLine Del 1690 that in case of a non-reciprocal country, notarial act can be authenticated by the Consular Office.
3. In some cases such as a Power of Attorney that has come from overseas there may be a requirement for adjudication by the District Magistrate of the concerned District where the Power of Attorney is to be used.
Indian Laws regarding legalisation of foreign documents:
1) The Diplomatic and Consular Officer (Oath and Fees) Act, 1948
Section 3: Powers as to oaths and notarial acts abroad
(1) Every diplomatic or consular officer may, in any foreign country or place where he is exercising his functions, administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State; and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State.
(2) Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person.
- Embassy- Generally, Embassies are diplomatic missions sent to non-Commonwealth countries to handle major diplomatic issues such as negotiations, represent the host country in the foreign nation where Embassy is situated, to maintain foreign relations and provide assistance to traveling citizens. The highest official in the Embassy is known as ambassador.
- Legation- A smaller version of Embassy is known as a Legation where the diplomatic mission is headed by a minister.
- High Commission- High Commissions are diplomatic missions sent to Commonwealth countries. The highest official in the High Commission is known as High Commissioner.
- Consulate- Whereas, a Consulate is a smaller version of an embassy and is generally located in the larger tourist cities of a country, but not the capital. Consular offices handle minor diplomatic issues such as issuing visas, aiding in trade relationships, and taking care of migrants, tourists, and expatriates.
2) Notaries Act 1952
Section 14: Reciprocal arrangements for recognition of notarial acts done by foreign notaries
If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.
3) Oaths Act 1969
Oaths Act 1969 provides that witnesses, interpreters and jurors may take oath or give affirmation before persons authorised by law to administer oath. Further, in cases of oaths and affirmations for the purpose of affidavits to be filed in judicial proceedings, even High Courts can administer oath and in case of other affidavits, even State Government may administer oath. This Act has repealed the earlier, Indian Oaths Act 1873.
Judgments regarding legalisation of foreign documents:
The Delhi High Court has in a case of Crocodile Int. vs Lacoste 2007 SCC OnLine Del 1690 held that in case of a non-reciprocal country, notarial act can be consularised by the Consular Office.
The Court further held as follows:
16. the Diplomatic or Consular Officers were empowered to administer oath and to take any affidavit and also to do the notarial act which a Notary Public may do in the State where the Diplomatic or Consular service is functioning. The documents notarised by such officers were, therefore, deemed to be validly notarized in India. The Court has, in our opinion, rightly held that even though there might be no reciprocity between India and another country under Section 14 of the Notaries Act, 1952, the notarial acts of the Notaries in the foreign country could be given legal recognition by the courts and authorities in India.
The Supreme Court of India in a case of Jugraj Singh and Another vs Jaswant Singh and Others (1970) 2 SCC 386 passed the following Judgment dated 16-03-1970 and recognised the Power of Attorney executed by the Principal which was notarised in the United States of America. The Power of Attorney was not accepted by District Court and the matter went in Appeal to the High Court of Punjab which also did not allow the Appeal. However, the Supreme Court overruled the Judgments and recognised the Power of Attorney as a legal document as it had been validly executed and notarised in the United States. The Apex Court held as follows:
8. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney was also duly authenticated in accordance with our laws.
11. It therefore follows that the second power of attorney was a valid document and it authorised Mr. Chawla to execute the document…
Conventions regarding legalisation of foreign documents:
1- Convention Abolishing the Requirement of Legislation for Foreign Public Documents 1961
As per the Convention Abolishing the Requirement of Legislation for Foreign Public Documents (Hague Apostille Convention) 1961, Apostille is done for personal documents like birth/death/marriage certificates, affidavits, power of Attorney, etc and educational documents like degree, diploma, matriculation and secondary level certificates etc. Any document Apostilled in one member country is acceptable in all the other member-countries. India is a member of the Apostille Convention.
Sushila Ram Varma
The Indian Lawyer