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Wednesday, January 14, 2015

Ignorance of Law excused?

Ordinary mortals are often told in stern words that ignorance of law is no excuse.  However it seems that this dictum is not applicable to higher mortals who are in the business of enforcing laws!  Here is an example.  India has subscribed to Hague convention, an international convention.  Under this a legal document executed in a foreign country and meant to be used in another country can be certified (apostilled, a French word, as used in the treaty) by recognized state authorities in the country of execution and then the documents become legal.  There is no need for any further legalization in the country where it is to be used.

Normally a document to be apostilled is first notarized in the country where it is executed and then apostilled by the recognized government authorities there.

However my personal experience in the state of Uttar Pradesh shows that at least two more layers are added post apostille.  The first layer is the requirement of an apostilled document being certified / countersigned by the local Indian consulate.  Here is what the site of the Indian Consulate at San Francisco says:

  • Apostille Convention: the Hague Convention, to which India and USA are signatories, abolishes the requirement of legalization for Foreign Public Documents. With the certification by the Hague Convention 'Apostille', the document is entitled to recognition in India and vice versa and no certification by the Embassy/Consulates of India is required. The convention applies to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.   
  • However in many places in India, they would easily recognize the attestation by the Indian Embassy/Consulate and hence may ask for attested copy despite the document already being apostilled.  Hence, to avoid any inconvenience, if you wish to have the apostilled document also attested by the Consulate, you may apply to the Consulate.    
  • The Consulate will attest the documents only after they have been first apostilled by the state authorities concerned in the US. Apostilling is done at the offices of the Secretary of State where the applicant resides.
Emphasis added by the author. Does this not condone the ignorance of authorities in India?

Things don't end at this.  Once the documents are received in India you have to approach the local revenue authorities.  The envelope containing the document has to be opened in their presence.  The idea is to make sure that the documents were actually shipped from abroad and not fabricated locally!  On top of this you submit an affidavit to the effect that the documents are truly genuine, submit an application requesting legalization, grease appropriate palms for sanction and finally pay a stamp duty of Rs.50/=.  The payment is certified by the Superintendent of Stamps.  Only now will the document be accepted as valid in India by authorities in India.

Apart from questions of harassment, does this requirement of countersignature and payment of stamp duty not violate the Hague convention to which the country is a signatory.

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