Legalisation with the Indian Consulate or VFS - is it required?
Documents that are created or signed in Australia but sent to India generally need to be notarised. This is a widely accepted and recognised process. Whether those documents then need to be counter-signed by the Indian Consulate or VFS is not so clear. This article discusses some issues that you may need to consider before sending your documents to India.
What documents need to be notarised?
Generally, documents that are signed in Australia but sent to India need to be notarised involving the notary public witnessing your signature. Also if you are sending copies of original documents, those copies may need to be certified as being true copies of the original documents.
Common documents that we are asked to witness and notarise include:
- the general power of attorney or special power of attorney
- affidavits and declarations used in legal proceedings (such as divorces under the Hindu Marriage Act or court cases regarding estates and property)
- education sponsorship letters and undertakings
- immigration sponsorships and letters of invitation
- contract or other agreements used for personal and business purposes.
Common documents that we are asked to certify and notarise include:
- education documents (ie, degrees, qualifications and transcripts)
- employment confirmation and payslips
- birth certificates, marriage certificates and death certificates
- forms of identification including passports, drivers licence or utility and rates notices.
Why notarise documents for India?
The notarial acts of a notary public are widely accepted around the world. Unlike a justice of the peace, whose appointment is generally only recognised in Australia, a notary public will be accepted in other countries - including India.
Accordingly, if you are in Australia but you are intending to do something in India, then it is likely that you would need the services of a notary public to assist you with witnessing your signature or certify your documents in a way that it will be accepted in India. Sometimes this may also require an authentication or apostille from the Department of Foreign Affairs and Trade.
If you do not follow this process, your documents may not be accepted in India.
What is the role of the Department of Foreign Affairs and Trade?
According to the Department of Foreign Affairs and Trade (DFAT) website:
The department’s role is to advance Australia’s national interest. This involves working to strengthen Australia’s security and enhance Australia’s prosperity. The department provides foreign, trade and development policy advice to the government. We work with other government agencies to ensure that Australia’s pursuit of its global, regional and bilateral interests is coordinated effectively.
With respect to notary public services, DFAT will confirm on behalf of the Australian Government whether a document has been notarised by a person who is a notary public according to their records. This endorsement by the Australian Government is what gives an Australian notary public 'formal' recognition by foreign governments in other countries. DFAT provides this endorsement in 2 ways - authentication or an apostille.
What is authentication or an apostille?
At its most formal level, in order for Australian documents (ie, government document) or documents that have been notarised by a notary public in Australia to be recognised in other countries, you must either have your document authenticated or stamped with an apostille.
Authentication involves DFAT confirming that the document is either an original Australian Government document or that it has been notarised by a notary public in Australia (this also requires the notary public who has notarised your document to be registered with DFAT). Once the document has been authenticated by DFAT you can take it to the foreign consulate or embassy of the intended destination country for legalisation, which involves that foreign office confirming that the document has been authenticated by DFAT on behalf of the Australian Government. With authentication and legalisation, once your document arrives in the intended destination country and has been stamped by their own government (ie, legalisation) it is basically as though that document had been signed in that country or will be legally recognised by that country.
An apostille stamp simplifies the authentication and legalisation process for certain countries that are signatories to an international convention known as Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. Under this convention, also known as the Apostille Convention, member countries will recognise the apostille stamp from other member countries without needing to go through the authentication and legalisation process. In Australia, DFAT will issue the apostille on original Australian Government documents or documents that have been notarised by a notary public in Australia - in the same way that they do with documents that need to be authenticated, except with an apostille, those documents do not need to be legalised by the foreign office of the intended destination country if that intended destination country is a member of (ie, signatory to) the Apostille Convention.
Is India a signatory to the Apostille Convention?
Yes, India is a signatory to the Apostille Convention. It became a member in 2004 and documents stamped with an apostille came into full legal effect in 2005. Technically, this means that if you need to send a document that you sign in Australia, like a general power of attorney, to India it must first be witnessed by a notary public and notarised, and then stamped with an apostille by DFAT - all of these services are available through our office if you need assistance.
In practice? Well, it seems the process is a little different from the technical normality followed by other member countries of the Apostille Convention. In those countries, once your document has been stamped with an apostille you can send it to those countries and it would be accepted without a problem. On the other hand, with India it seems from our experience that many people who request documents to be sent to them from Australia still want to have the documents countersigned by the Indian Consulate, which is performed through the outsource agent, VFS, and VFS still require those documents to be stamped with an apostille.
So even though the purpose of the apostille, and the reason why countries like India become members of the Apostille Convention, is to avoid the relative complexities of authentication and legalisation in favour of a more simple process, the demand in India for documents to be stamped by the local foreign office (ie, the Indian Consulate) means there really is no benefit - especially for you, the person who needs to manage the process for whatever document you are sending to India. The processing office's requirement (ie, VFS requirement) for documents to be stamped with an apostille really is no different to the authentication and legalisation process except that obtaining an apostille stamp from DFAT is more expensive than the authentication. So in fact, not only is there no benefit, but now it is more expensive. For those of you familiar with the bureaucracy and red tape especially through the government and legal system in India, then this will be of no surprise to you.
What should I do now?
Still not clear? We appreciate that this process can be both confusing and overwhelming regardless of whether you have done it before or you are going through it for the first time. You will probably also find that people working in this area (ie, lawyers, VFS officers, Consulate officials and even public notaries) may not know what is required - and that presents itself as a real problem. Unfortunately, uncertainty and inconsistency can mean unnecessary delays and additional cost.
Our experience is that as long as your document will be accepted for its intended purposes then that's the 'right' process. To this end, you will need to see direction from whoever has asked you to have your document notarised and they should be able to provide you with advice as to what 'they require' and at the end of the day, the majority of our clients simply require some read stamps and a red seal to satisfy their recipient.
Whatever the case may be, the first step in your journey will generally be having your document notarised and that is our service to you.
To obtain a quote on our notary public services for India, please visit
https://www.notary-parramatta.com.au/notary-fees/.
Acknowledgements
This blog is supported and maintained by
Phang Legal.
Phang Legal is a leading provider of notary public services in Sydney. With offices conveniently located in Parramatta, Phang Legal supports and services the Indian community across Sydney with readily available and easily accessible notary public services at highly competitive rates.
For more information regarding notary public services for documents going to India, view our notary publications at
https://www.notary-parramatta.com.au/jurisdiction/india-notary/.
Frequently asked questions regarding our notary public services can also be found at
https://www.notary-parramatta.com.au/faqs/.
For Hindi to English translation services by NAATI accredited translators, see
https://hindi-naati-translation.blogspot.com.au/.
Ern Phang
Notary Public
Ern Phang is the solicitor director of Phang Legal and a notary public. Ern regularly writes about his experiences as a notary public, including the kinds of problems and solutions that his clients face when sending documents to India.
IMPORTANT: the information in this article is correct at the time of publication, however the law constantly changes. This means you should always refer to the most recent articles because we try to update this blog on a regular basis with the most current information.
