Union Govt Bound By Apostille Convention, Cannot Disbelieve Apostille Document Of Other Countries: Allahabad High Court

The Allahabad High Court on Thursday held that the Union Government is bound by the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) as India is a signatory to the same. The Court held that the government cannot disbelieve Apostille documents issued by countries signatory to the Apostille Convention.

The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as Apostille Convention, is an international treaty for abolishing the requirement of legalization for foreign public documents. It was brought in to replace the cumbersome process of certification of documents of one country by another. If two countries are signatories of the Apostille Convention, then documents issued by the government of one country are legally recognizable in the other country without any further need of verification.

“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,” observed the Court.

The bench comprising of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar held,

“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.”

Factual Background

Petitioner is a citizen of United States of America though born in Guyana, but of Indian origin. Petitioner's great grandparents and grandfather were from Allahabad and neighbouring districts and were sent to Guyana from Kolkata by ship. Petitioner presented before the Court an apostille copy of the immigration certificate of her grandparents from National Archives of Guyana.

Petitioner claimed to have married an Indian citizen in 2018 in a temple in Mumbai. However, her application for Overseas Citizenship of India Card (OCI Card) through her spouse was rejected as her marriage was not verified. Petitioner's application for visa conversion on both accounts: her ancestry and her marriage. However, the same was rejected as her Visa was required to have a minimum validity period of six months.

While the petitioner was running from pillar to post for obtaining OCI card, her visa expired. Accordingly, the petitioner approached the High Court for grant of OCI card and conversion of visa to X-1 Entry Visa on the basis of Indian Origination/Indian Spouse.

Counsel for petitioner submitted that the visa granted to petitioner was extended from time to time has expired and is not being further extended. It was argued that nativity certificate is not mandatory under the Citizenship Act, 1955 and the Citizenship Rules, 2009 for grant of registration as an Overseas Citizen of India. It was argued that the petitioner had duly submitted requisite documents in support of her claim, demonstrating her Indian Origin as her forefathers were residing in Uttar Pradesh.

It was contended that since India and Guyana were both signatories of the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention), the immigration documents from the National Archives of Guyana were legally recognized documents in India. Counsel for petitioner submitted that the respondent authorities ignored the Office Memorandum dated 18.11.2020 issued by the Ministry of External Affairs, stating that an Apostille document should be treated as legalized document in India by all concerned, in accordance with the international obligation under the Apostille Convention, 1961.

Per Contra, counsel for respondents contended that the petitioner had failed twice to supply a copy of the dissolution of her husband's first marriage, accordingly, her application was closed. It was further contended that foreign nationals do not have a right to visa. The same can be regulated by the Central Government under Section 3(2) of the Foreigners Act, 1946 which empowers the Central Government to regulate the entry stay and departure of any foreigner in India.

It was argued that the petitioner was informed that the OCI card services were temporarily suspended in 2021 due to the spread of COVID-19, however, no correspondence was received from her afterwards and as such the said OCI application could not be processed further.

Lastly, it was argued that the documents furnished by the petitioner obtained by her from the archives of Guyana was not eligible for OCI card registration under Section 7A(1) or Section 7A(3) of the Act, 1955 read with Articles 5 and 8 of the Constitution of India, “as descendants of Indian origin immigrants, who migrated as indentured labourers during British rule to Mauritius, Surinam, Netherlands and Reunion Island were only made eligible for OCI Card registration by granting special dispensation, with the approval of Ministry of Home under Section 7A(3) of the Citizenship Act, 1955 from time to time (whereby the documents of the archives of these countries can only be considered for OCI registration of their citizens).”

Since, Indian immigrants of Guyana were not included in the special dispensation category, application of petitioner for grant of OCI card on the basis of document from archives of Guyana could not be accepted. Respondents stressed on the need for nativity certificate issued by the concerned District Magistrate to be submitted by the petitioner.

High Court Verdict

The issue before the Court was whether an Apostille Certificate issued by the National Archives of Guyana could be treated as a valid document under Hague Convention, 1961.

The Court observed that the Office Memorandum of 18.11.2020 issued by the Ministry of External Affairs provides that there is no need for further attestation of an Apostille Document from any country which is a signatory to the Apostille Convention.

The Court observed that since the petitioner had obtained the documents regarding the immigration of her grandparents from the National Archives of Guyana and they were duly Apostilled, there was no reason for the Indian authorities to disbelieve them, both nations being signatories to the Apostille Convention.

The Court held that the respondents cannot “turn around” and say that the Office Memorandum on Apostille documents is not mandatory when India is a signatory to the Apostille Convention.

“Article 51(C) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations, where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute shall be construed on broad principle of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them.”

The Court relied on decision of the Supreme Court in Lakshmi Kant Pandey vs Union of India & Ors, decision of Delhi High Court in Dr. Sanjay Khanduja vs. Punjab National Bank and another, and decision of Kerala High Court in Abdul Manaf v. State of Kerala recognizing the binding nature of the Apostille Convention.

The Court held that the respondents, including the Union of India, cannot disbelieve Apostille documents when Government of India is a signatory of the Apostille Convention and has also issued the Office Memorandum dated 18.11.2020 treating the 'Apostille' document as a legal document.

The Court held that the petitioner had established her ancestry as was required by the Act of 1955. However, there was no requirement for her to specifically provide a nativity certificate to prove her ancestry as demanded by the respondents.

Accordingly, the Court directed the respondent authorities to process the OCI Card of the petitioner in accordance with Section 7A of the Citizenship Act, 1955 and also directed them to convert the VISA of the petitioner, so that she is eligible for the OCI Card.

Case Title: Naromattie Devi Ganpat vs. Union of India and others 2024 LiveLaw (AB) 30 [WRIT - C No. - 19866 of 2023]

Case Citation: 2024 LiveLaw (AB) 30

Counsel for Petitioner: Vineet Kumar Singh, Prateek Srivastava, Vikrant Pratap Singh and Vipul Singh.

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