The Peculiar Conundrum of Citizenship in India & the Apostille Convention

Posted on by guulr in GUULR Blog

By Aryan Sharma and Tanya George

INTRODUCTION

The diversity present in the modern world has facilitated international travel and migration. As a corollary, such development has made the verification of foreign documentation, particularly at scale, an arduous and labor-intensive process.1 To navigate this issue, countries entered into the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, also known as the Hague Apostille Convention (hereafter “the Apostille Convention”).2

India had signed the Apostille Convention in 2005, effectively making the process of recognizing the authenticity of foreign documents in a simplified manner.3 Inter alia, the simplified process could now be used for death certificates, birth certificates, and so forth. The government’s recent initiative, the e-Sanad portal, is an extension of the country’s efforts to simplify processes and avoid future conundrums.4

However, the manner in which the Apostille Convention should be applied still presents certain lacunae in the Indian legal sphere. A peculiar problem that arises concerns the documentation of transnational commercial surrogacy and whether such documents could be verified in India under the Apostille Convention, despite domestic law banning commercial surrogacy. Another issue arises in the context of the citizenship of such children, as well as children born abroad to same-sex adoptive parents.

The Constitution of India guarantees that all persons (not citizens) will be treated equally before the law.5 However, by virtue of this incongruence in domestic and international law, the law mandates that citizenship may be assessed only within the bounds of Indian perception of marriage and family life.

This article proceeds in four parts: Part II explains the Apostille Convention and its reception in Indian law; Part III examines whether apostilled surrogacy documents from permissive jurisdictions can ground Indian citizenship claims despite the domestic prohibition; Part IV addresses the citizenship lacuna produced by India’s structural exclusion of same-sex couples from joint parenthood; and Part V draws on comparative jurisprudence and the UNCRC’s best interests principle to propose a framework that disaggregates document authentication from substantive rights.

  1. WHAT IS THE APOSTILLE CONVENTION?

The Apostille Convention seeks to replace the traditional process of legalization with the issuance of a single Apostille certificate by a Competent Authority in the state where the document was originally issued.6 125 countries are parties to the Convention, with millions of Apostilles signed each year.7

Initially, domestic legislatures were solely attuned to the veracity of their own documents. Such strict adaptation created problems in the international sphere when the courts had to ascertain the authenticity of each foreign document time after time. The Apostille Convention offered a supposed panacea: a standardized, simple seal or signature. This seal guarantees that a verified foreign authority has granted the document, allowing the state to verify it without further attestation.

The Convention made the process easier by creating a uniform certificate called an Apostille. The Convention’s explanatory note states that the Apostille certificate is issued by the designated authority in the document’s country of origin, i.e., competent trustworthy authorities such as the Ministry of External or Foreign Affairs, and is either affixed to the document itself or attached separately.8 Each Apostille carries a date, a unique identification number, and registration details. These details enable reliable and efficient verification with the issuing authority.

  1. THE APOSTILLE CONVENTION IN INDIA

In India, Apostilles currently require no further attestation, a principle affirmed by the Bombay High Court in Thakur Infraprojects Pvt. Ltd. Vs. State of Maharashtra and Others.9 Further, the 2020 office memorandum, published by the Ministry of External Affairs, states that such a document must necessarily be treated as a legalized document in India.10

However, such clarity in the law has not manifested in administrative consistency on the ground, particularly regarding citizenship and Overseas Citizenship of India (OCI) matters. The latter refers to a long-term visa status granted to foreign citizens of Indian descent. Such administrative dissonance is exemplified by the recent ruling of the Allahabad High Court in Naromattie Devi Ganpat vs Union of India and Others.11 The petitioner, a U.S. citizen of Indian origin, relied on her Indian ancestry to apply for recognition as an OCI cardholder. To establish that her great-grandparents migrated in 1882 from Allahabad and Jaunpur to British Guiana, she submitted apostilled records issued by the Guyana National Archives. Indian authorities ignored the apostilled documents, which meet the international authentication standard, and instead demanded a Nativity Certificate. Such a certificate is not required by the Citizenship Act or the Citizenship Rules.12

The Court weighed its responsibilities under the Apostille Convention by rejecting this administrative insistence. It concluded that the government could not punish an applicant for failing to obtain a document that might not have been issued. The Court affirmed that the apostilled immigration records were adequate evidence of Indian ancestry.

Naromattie Devi Ganpat exposes the persistent structural ambiguity in India’s citizenship framework with respect to documents of foreign origin, even in light of the Court’s recognition. Critically, the Apostille Convention does not require substantive recognition of the facts in the document, even though it eliminates the need for diplomatic legalization.

Although an apostille ensures that a document is authentic in its place of origin, it does not, and was never meant to, force domestic authorities to recognize the document’s contents as authentic or legally binding. When it comes to citizenship, the content of a document is what counts.

Such a distinction has placed India in a precarious position in areas like transnational commercial surrogacy and same-sex adoption, as these concepts are yet to find validity within the Indian framework.

 Indian law restricts access to legal parenthood, through both adoption and surrogacy, to heterosexual married couples. The Surrogacy (Regulation) Act of 2021 limits surrogacy to legally married heterosexual Indian citizens with proven infertility, and the Central Adoption Resource Authority (CARA) adoption framework under the Juvenile Justice Act of 2015 requires a minimum two-year stable marital relationship, a threshold same-sex couples cannot meet, given the non-recognition of same-sex marriage in India.13 Though the Supreme Court decriminalized consensual same-sex relations in Navtej Singh Johar v. Union of India, it declined to recognize same-sex marriage in Supriyo v. Union of India, leaving LGBTQ+ couples excluded from joint parenthood.14

Notably, these tensions place Indian laws in direct conflict with one of the foundational principles of international humanitarian law: the ‘best interests of the child’, enshrined in Article 3 of the UNCRC.15 It mandates that a child’s welfare (not the circumstances of their birth) guide legal determinations affecting them.

  1. THE DILEMMA OF COMMERCIAL SURROGACY AND INTERNATIONAL PRACTICE

The Supreme Court of India, in Laxmi Kant Pandey vs Union of India and Others, held that Apostille documents ought to be accepted as legitimate in guardianship and adoption cases.16 But when it comes to commercial surrogacy, complications arise. Commercial surrogacy is an arrangement in which a surrogate mother receives financial compensation beyond medical and insurance expenses in exchange for carrying and delivering a child for the intended parents.17 It is distinguished from altruistic surrogacy, where no monetary benefit passes to the surrogate.

Difficulties arise when Indian couples travel to jurisdictions such as Russia or Greece, where commercial surrogacy is lawful, and return with children whose birth and parentage certificates have been Apostille-certified abroad. Because such arrangements would be impermissible if carried out in India, a question emerges: should Indian authorities recognize these documents for the limited purpose of granting citizenship by descent?

Although India is obliged to treat Apostilled documents as authentic, it may still decline to accord them legal effect if recognition would conflict with domestic public policy. Therefore, the main question is whether the ban on commercial surrogacy constitutes a fundamental public policy exception that warrants the denial of citizenship.18 The public policy exception is recognized in Indian law as a doctrine that permits Indian authorities to refuse recognition of a foreign legal arrangement when it fundamentally conflicts with the Indian legal order.19

As noted above, the Apostille Convention was never intended to bind states to the substantive contents of a document simply because it had been apostilled. The Apostille Convention simplifies the authentication process without legal endorsement of a document’s content. Hence, domestic authorities retain the power to deny legal recognition to an apostilled document on limited public policy grounds.

Nevertheless, international practice suggests that public policy exceptions should be narrowly construed and applied proportionately, particularly where their invocation affects fundamental rights.20 An outright refusal to consider apostilled documents simply because they involve a practice disfavored in the domestic law undermines the very object of the Convention.

Another consequence of this tension is the risk of a child becoming stateless. A child born through international surrogacy may not have a nationality if India rejects the commissioning parents, the surrogate’s nation denies parentage, and the country of birth does not grant jus soli citizenship. These results run counter to both Article 15 of the UDHR and Article 7 of the UNCRC, both of which uphold a child’s right to a nationality.21

In line with the ‘best interests of the child’ principle, citizenship should not be denied or withheld due to circumstances beyond the child’s control. Moreover, UNHCR guidance on statelessness emphasizes that it is never in the best interests of the child to be rendered stateless. Statelessness denies the child access to education, healthcare, legal identity, and the protection of any state, leaving them in a condition of legal invisibility from birth.

  1. WAY FORWARD & CONCLUSION

One way to approach the problem would be to distinguish between the authentication of documents, for which the Apostille Convention requires recognition, and the conferral of substantive rights, which would be left to the state’s discretion. Thus, India would treat Apostille-certified birth certificates and parentage documents as authentic records of events that have taken place abroad, but the grant of Indian citizenship, if at all, would be a separate determination. In this regard, consideration might be given to the genetic bond between the child and the Indian parents, the child’s risk of statelessness, and the child’s best interests.

Additionally, comparative analysis offers valuable guidance. In Mennesson v. France, the European Court of Human Rights held that France’s refusal to recognize the parent-child relationship violated the children’s right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).22

Similarly, the United Kingdom permits altruistic but not commercial surrogacy. British law addresses international surrogacy through parental order procedures, whereby British couples who have children through surrogacy abroad can apply for parental orders that establish them as the legal parents.23

Another approach might be the application of a proportionality test, which weighs the state’s interest in banning commercial surrogacy against the fundamental rights of the child. It would involve examining whether the denial of citizenship is necessary to a legitimate objective, whether less restrictive measures exist, and whether the burden on the child is disproportionate to the policy objective. A failure to distinguish between document authentication and moral endorsement risks transforming the Apostille Convention from a facilitative instrument of international cooperation into a tool of exclusion.24 India’s challenge lies not in recognizing apostilled documents but in reconciling domestic law with its international obligations.

  1.  All About Apostilles: Who Needs Them and Why? | Courtly, https://www.courtly.com/resources/all-about-apostilles.
    ↩︎
  2. HCCH | #12 – Full Text, https://www.hcch.net/en/instruments/conventions/full-text/?cid=41. ↩︎
  3. Attestation/Apostille | Ministry of External Affairs Government of India, Ministry of External Affairs, Government of India, https://mea.gov.in/apostille-menu.htm. ↩︎
  4. Ministry of External Affairs Launches E-Sanad, an Online Portal for Online Submission and Verification of Documents, https://www.pib.gov.in/www.pib.gov.in/Pressreleaseshare.aspx?PRID=2168764. ↩︎
  5. Article 14, Constitution of India, 1950. ↩︎
  6. HCCH | #12 – Authorities, https://www.hcch.net/en/instruments/conventions/authorities1/?cid=41. ↩︎
  7. HCCH | Apostille Section, https://www.hcch.net/en/instruments/conventions/specialised-sections/apostille. ↩︎
  8. HCCH | Explanatory Note, https://assets.hcch.net/docs/4ce5e150-6a0b-4572-9335-98cd7f0313cb.pdf. ↩︎
  9. Thakur Infraprojects Pvt. Ltd. v. State of Maharashtra and Others, 2025:BHC-AS:20453-DB. ↩︎
  10. Ministry of External Affairs, Office Memorandum, https://indemb-harare.gov.in/public_files/assets/pdf/Apostilled_2020.pdf. ↩︎
  11. Naromattie Devi Ganpat v. Union of India and Others, 2024:AHC:8647-DB. ↩︎
  12. The Citizenship Act, 1955, Act No. 57 of 1955, Enacted by Parliament of India; The Citizenship Rules, 2009, Enacted by Parliament of India.
    ↩︎
  13. Section 2(h), The Surrogacy (Regulation) Act, 2021, Act No. 47 of 2021, Enacted by Parliament of India;  Regulation 5(3), Adoption Regulations, 2017. ↩︎
  14. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321; Supriyo v. Union of India, AIR 2023 SC 5283. ↩︎
  15. Article 3, United Nations Convention on the Rights of the Child. ↩︎
  16. Lakshmi Kant Pandey v. Union Of India and Others, 1984 AIR 469. ↩︎
  17. Section 2(g), The Surrogacy (Regulation) Act, 2021, Act No. 47 of 2021, Enacted by Parliament of India. ↩︎
  18. Recognition and Enforcement of Foreign Judgments | MPIL, https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1848. ↩︎
  19. Renusagar Power Plant Co. Ltd. v. General Electric Co., 1994 AIR 860.
    ↩︎
  20. Taming the Unruly Horse: The Public Policy Exception in Private International Law in the Context of Human Rights | Stephanie Knowler, https://www.otago.ac.nz/__data/assets/pdf_file/0022/332185/taming-the-unruly-horse-the-public-policy-exception-in-private-international-law-in-the-context-of-human-rights-711012.pdf; Parsons & Whittemore Overseas Co., Inc., Plaintiff-appellant-appellee, v. Societe Generale De L’industrie Du Papier (rakta), and Bank of America, Defendants-appellees, Societe Generalede L’industrie Du Papier (rakta), defendant-appellee-appellant, 508 F.2d 969. ↩︎
  21. Article 15, Universal Declaration of Human Rights; Article 7, United Nations Convention on the Rights of the Child. ↩︎
  22. Mennesson v. France, 65192/11, European Court of Human Rights;  Article 8, European Convention on Human Rights. ↩︎
  23. Surrogacy Overseas, GOV.UK, https://www.gov.uk/government/publications/surrogacy-overseas/surrogacy-overseas. ↩︎
  24. HCCH | Apostille Handbook, https://assets.hcch.net/docs/a19ae90b-27bf-4596-b5ee-0140858abeaa.pdf. ↩︎

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