Self-Attestation And The Ease Of Doing Business

As someone whose job has for decades included marketing India as an investment destination to people around the world, I have often evangelised about how doing business in India isn’t actually as hard as it is made out to be. And while this might be true in some respects, I recently had the chance to test the proposition, with mixed results.

‘Non-In-Person’ Procedure

The process to convert my bank account to an NRI account should have begun before we moved to France but... Covid. A few months later, with travel still severely restricted, we decided to do this online, which my bank referred to as ‘non-in-person procedure’. This nomenclature should have alerted me to the fact that the process was online only in a somewhat limited sense of the word.

Forms had to be completed, but none could be filled out digitally. They had to be downloaded, printed out, completed, signed, scanned, and emailed. In addition, ‘self-attested’ copies of a whole host of documents had to be provided, including my passport, visa, resident permit, lease agreement, PAN card, wife’s passport and OCI card, and French tax registration. These too had to be scanned, printed out, self-attested, scanned again, collated, and emailed. If I’d been back in India, with a friendly bouquet of willing secretaries and office assistants to help, I probably would have expressed mild irritation and carried on. But here in Paris, I had only myself to rely on, and I made a brave if ultimately futile attempt to avoid this tedious task.

“Was this really necessary?”, I asked. I’d had an account with the bank over a decade and many of these documents were already in their possession, as a result of home loans taken, KYC procedures followed, etc. Sorry, they needed them afresh.

I then suggested that if I just attached the documents to an email (without self-attesting them), what they received would be mirror images of what I sent, and all would be well with the world. No, they were having none of that either.

I took another tack – I have a shiny new digital signature, can I use that? “No sir, not recognised for this purpose”. “Any other form of digital certification?” Perhaps one of the myriad forms of e-signature and e-certification that now legally exist in India? No, self-attestation is a must. Why, I wondered, could I use my digital signature to sign contracts and perform various other official, legally-binding tasks, but not the self-attestation of some miserable documents that are otherwise easily verifiable?

Where did this sacred and apparently inviolable procedure come from?

From Attestation To Self-Attestation

In July 2014, the Government of India did away with the need for various documents to be attested by notaries or government officials in situations where it was not mandated by statute. This was based on a report of the second Administrative Reforms Commission, which suggested that self-attestation be permitted instead. The Times of India announced “In major relief to citizens govt to accept self-attested documents ”. Now it is entirely understandable that removing the onerous requirement of going to a notary or a gazetted officer was welcome, but no one seemed to have asked at the time why this was being replaced by self-attestation. What evidentiary alchemy was being provided by self-attestation that the state could not afford to do without?

But Sir, Why Self-Attest At All?

The logic seems to be as follows: if you signed the documents, you couldn’t deny that those were the ones you had submitted. But as the original documents always remain liable to be produced if required, how did this change anything if you submitted the wrong ones? Further, signing copies did not make them any more genuine than they already were! The argument perhaps could be made that the copies could be replaced or removed if they weren’t signed, but again, whether they were genuine or not would be determined by comparing them with the originals, not because they were self-attested.

The only residual justification for self-attestation may be that the signature of the person submitting documents marks them as the ones submitted and therefore a bit easier to identify as evidence. But is this small benefit worth the effort? A cursory review of the case law on self-attestation reveals little by way of any greater evidentiary justification. And why is it that few if any other countries in the world feel the need for self-attestation?

Now, Please Sign Your Face

Consider also the somewhat mind-bending requirement that pops up from time to time, that of the need to sign across a photo of your own face. This is almost an existential issue – do I not officially become me until I scribble across my own face, that too in the age of Aadhaar and biometric facial recognition? If a picture is worth a thousand words, do the two or three words representing my signature really add anything to my photo? It is either my photo or it is not. If it isn’t, my signing it doesn’t magically convert it to my photo!

OK, What’s Really Going On Here?

Despite having moved up a number of places in the World Bank’s annual Doing Business report, from 130th in 2016 to 63rd in 2020, the fact is that India remains a difficult place to do business, as almost any business owner will testify. Despite a degree of high-level commitment and good intentions from the powers-that-be, ease of doing business thinking has not made significant inroads into the public-facing parts of the state and other semi-official institutions like banks and insurance companies. We have so far failed to create a culture of making the day-to-day life of a citizen or a business easy. The focus tends to be on top-down reform, which is why much of the improvement in the Ease of Doing Business Rankings comes from centralised reforms such as the implementation of the insolvency code and changes to trade policy. There also tends to be an over-reliance on technological solutions, narrowly and sometimes crudely applied, rather than institutional reform, which is why we perform poorly on indicators such as implementing contracts.

It will take a long time age for top-down reform to reach the various nooks and crannies of the massive bureaucratic machine that is the Indian state. What the government should consider is to empower and incentivise every government department and agency that has a touchpoint with the public to drastically simplify procedures, on the basis of some common principles to provide guidance.

One of these principles must be to operate on the assumption that most people will tell the truth. The mechanisms we put into place tend to assume dishonesty and clumsily try and plug the apparent loopholes, rather than assume that people will generally be honest and then go after the handful of people who actually commit fraud. In that context, asking for a self-attested document or photo is an almost meaningless ritual that doesn’t go very far in providing protection from fraud but does add unnecessary inconvenience for hundreds of millions of citizens.

(At almost exactly the same time as I was converting my bank account in India, I was setting up a company in France, applying for a tax registration, and opening bank accounts, all by emailing scanned, non-self-attested documents, so it is possible!)

Akshay Jaitly is President - 262 Advisors; and co-founder of Trilegal.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.