The Purpose of Authenticating a Document
Authentication is the process of reliably verifying the identity of someone (or something). It establishes who you are. Authentication is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery.
Therefore, it is absolutely crucial for smooth operation of administrative functions.
Authentication of Documents:
1. For Internal Use (inside the country)
There are two ways of proving the contents of a document:-
- Primary Evidence
- Secondary Evidence
(i) Primary Evidence
Primary evidence means the document in itself is produced for the inspection of the Court. When a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Further, where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
For example, when a person possesses a number of placards, all of which are printed at one time from one original, then any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
(ii) Secondary Evidence
Secondary evidence means and includes:-
- Certified copies of the original as produced by the due process;
- Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
- Copies made from or compared with the original;
- Counterparts of documents as against the parties who did not execute them;
- Oral accounts of the contents of a document given by some person who has himself seen it.
Here are some illustrations:-
- A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
- A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
- A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
- Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.
2. For External Use (international)
Public documents such as birth certificates, judgments, patents or notarial attestation (acknowledgements) of signatures abroad However, before the public documents can be used abroad (for use in the country other than the one which issued it), its origin must be authenticated. The traditional process involves officials of the country where the document was issued as well as the foreign Embassy or Consulate of the country where the document is to be issued. Because of the number of authorities involved, the legalization process is slow, cumbersome and costly.
In 1961, a large number of countries all over the world joined in a treaty that greatly simplifies the authentication of public documents to be used abroad. This treaty is called the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents it is commonly known a the Apostille Convention. Where it applies, the treaty reduces the authentication process to a single formality: the issuance of an authentication certificate by an authority designated by the country where the public document was issued. This certificate is called an Apostille.
When is an Apostille needed?
An Apostille is required under the following conditions:-
- If the country where the document was issued is party to the Apostille Convention.
- If the country in which the document is to be issued is party to the Apostille Convention.
- The law of the country where the document was issued considers it to be a public document.
- The country in which the document is to be used requires an Apostille in order to recognize it as a foreign public document.
An Apostille may not be required if the laws, regulations, or practice in force in the country where the public document is to be used have abolished or simplified the requirement of an Apostille, or have exempted the document from any legalization requirement. Such simplification or requirement may also result from a treaty or other document that is in force between the country where the public document is to be issued and the country that issued it. (e.g., some other Hague Conventions exempt documents from legalization or any analogous formality, including an Apostille.)
To which Documents does Apostille Convention apply?
The Convention only applies to public documents. Whether or not a document is a public document is determined by the law of the country in which the document was issued. Most Apostilles are issued for documents of an administrative nature, including birth, marriage and death certificates; documents emanating from an authority or an official connected with a court, tribunal or commission; extracts from commercial registers; patents; notarial acts and notarial attestations (acknowledgements) of signatures; school, university and other academic diplomas issued by public institutions.
The Apostille Convention does not apply to documents executed by diplomatic or consular agents. It also excludes certain administrative documents related to commercial or customs operation.
Twin Process of Authentication
Countries that are not party to the Hague Convention require that documents be authenticated by the foreign affairs ministry of the originating country. Once authenticated by the foreign ministry the documents then need to be reviewed and approved by the consular staff of the country in which the transaction is to occur.
Consularization is the act of authenticating any legal document by the consul office, by the consul signing and affixing a red ribbon to the document. This process is often used for shipping documents, travel documents (such as a parental consent letter for persons under 18 traveling without a parent), letters of credit , and powers of attorney . In India, the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 deals with the law and procedure of Consularization.