Indian Diplomats In Non-Apostille Countries Empowered To Administer Oath, Take Affidavits & Notarise: Kerala High Court

The Kerala High Court recently ruled that Indian diplomatic officers in non-Apostille countries are empowered to administer oath, take affidavits and do notarial acts as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act. 

Justice V.G. Arun added that such oath, affidavit and notarial act administered, sworn or done by or before any such diplomatic officer shall be effectual as if duly administered, sworn or done by or before any lawful authority in the State. 

"What emerges from the scrutiny of Section 3, and the well considered decisions above, is that the diplomatic officers of the Indian Embassy in Canada are empowered to apostille affidavits and do notarial acts, which shall have the same effect as done by an authorised officer/attorney in India."

The Court was adjudicating upon a plea filed by a couple, the groom being an Indian Citizen and the bride a Canadian citizen with an Overseas Citizen of India card. The couple had given their notice of intended marriage after which they were required to appear on 22nd May for solemnisation of their marriage. However, in the meanwhile, the bride had to rush back to Canada at her employer's behest. 

Therefore, she requested the Marriage Officer to permit her to appear online, but this request was denied. Aggrieved by this, the couple moved the High Court.

Government Pleader P.S Appu pointed out that it is mandatory to produce a non-objection and bachelorhood certificate to prove her single status from the Embassy if one of the applicants is a foreign national.

Advocate R.V Sreejith appearing for the petitioner submitted that she had requested for a non-objection and bachelorhood certificate from the Canadian Embassy in India. But the Embassy expressed its inability to do so citing that Canadian law does not provide for the issuance of such certificates. It was contended that she cannot be compelled to perform the impossible task of producing the certificate and should be permitted to produce an affidavit as to her single status notarised by an Attorney in Canada.

However, the Government Pleader asserted that affidavits apostilled in a foreign country will only be accepted if it is a member of the Hague Apostille Convention, which Canada was not. Therefore, it was argued that her affidavit, even if apostilled by a Notary in Canada, cannot be accepted.

Advocate Shyam Padman assisted the Court with this issue and submitted that the only option available to the petitioner is to file a properly attested single status affidavit which many countries are accepting in lieu of bachelorhood certificates. He added that since India is a member of the Hague Apostille Convention, no further attestation of a document apostilled by a member country is required for using the document in India. An apostilled document should be treated as legalized document for all purposes in India.

Since Canada is not a participant to the Hague Convention, Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act could be applied which enables administration of oaths by diplomatic and consular officers for a prescribed fee.

The Court noted that since it is impossible for the petitioner to produce the non impediment to marriage certificate, the authority will have to either exempt her from performing the impossible act or provide a viable alternative.

At this juncture, the Justice Arun reminded that the purpose of the Hague Apostille Convention of 1961 was to replace the long and costly legalisation process with the issuance of a single Apostille certificate by a Competent Authority in the place where the document originates. The electronic Apostille Programme (e-APP) was launched in 2006 to support the electronic issuance and verification of Apostilles around the world.

It was also found that Section 3 of the Act empowers diplomatic or consular officers, exercising functions in any foreign country to administer oath, take affidavits and do notarial acts which any notary public may do within that State. 

As such it was held that the petitioner can be permitted to produce an affidavit duly attested/notarised in the manner provided in Section 3, in lieu of the 'non-objection and bachelorhood certificate'.

The Court accordingly allowed a couple to solemnise their marriage through online mode subject to conditions.