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4 weeks ago
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Summary
Notary attestations have been around since ancient times but have been overtaken by digital technology. In a world of digital records and verifiable credentials, as with Aadhaar, why insist on the use of notaries?
In Ancient Rome, parties who wanted to record the terms of an agreement had to present themselves before a tabellio—a particular type of clerk whose job was to write down the terms of a contract on a wax tablet, have them witnessed, and make the document official by pressing his seal into the wax. By certifying the document as valid, the tabellio ensured that parties who had no other way to attest to the document’s integrity each had a legally enforceable copy.
In a world without trust infrastructure, institutional intermediaries such as these were essential for commerce. This was eventually formalized as the Notarius of Imperial Rome—the precursor to today’s notaries.
This arrangement has not changed much in 2,000 years. We still have to appear in person before a notary for various reasons, armed with original documents and stacks of copies so that, after having inspected the original, he can affix his seal to the copies to unequivocally state that they are identical to the original version in all respects.
There are a surprising number of situations in which we still have to perform this ancient tradition. If you lose your PAN card, you need a notarized affidavit. If you have lost a share certificate, Sebi-regulated entities insist on a notarized indemnity affidavit before they will consider issuing a duplicate.
If you are a pensioner, you must provide notarized declarations confirming that you are still alive and eligible. And if you happen to lose your educational certificates, you will be required to produce notarized copies of whatever substitute you can find.
Even if there is a spelling mistake in your name, there is no way you will be able to set it right unless you present a notarized copy of some other official document with the correct spelling.
Underpinning all these official requirements is the presumption that what held true in Ancient Rome must still be valid today—that the only way we can assure ourselves of the authenticity of a document’s copy is if we know a human intermediary has compared it with the original and certified a match.
This presumption not only places a far greater premium than is justified on the industriousness and attention to detail of the notarial class, but, more importantly, completely ignores the march of digital technology and all that it has made possible.
Today, most documents that are required to avail the benefits or services we need are available in digital formats from their issuing authorities. These include identity documents (Aadhaar, PAN and driver’s license), educational credentials (such as school and college marks cards) and proofs of ownership (share certificates, property documents, vehicle registration certificates, etc).
Since there is no greater guarantee of a document’s veracity than getting it directly from the issuer’s system, if that’s possible, it seems utterly pointless to insist on a notary certifying the authenticity of a copy.
Consider what we are actually doing when we ask for a notarized copy of an Aadhaar card. Since the notary has no access to the actual Aadhaar database, he can, at best, certify the copy he is being asked to attest is identical in every respect to the physical card he was shown.
Now, everyone knows that the Aadhaar card we carry is just a small piece of paper or plastic indicating that we are enrolled in India’s unique identification system. The physical card we carry does not have inbuilt anti-counterfeiting or anti-spoofing measures. As a result, it is easy to forge or modify. If a forged Aadhaar card is presented, the notary, not having any way to verify its authenticity, will happily certify that one piece of paper matches the other.
When we insist on a notarized copy of an Aadhaar card, we replace a document signed by its authorized issuing authority with one signed by someone who cannot verify its authenticity. Since the notarized copy is less trustworthy than the original, this moves us down the trust chain instead of moving us up.
It does not have to be this way. The Unique Identification Authority of India (UIDAI) already allows Aadhaar number holders to generate verifiable credentials for their Aadhaar information. These digitally signed credentials attest that the information they contain originates from the UIDAI database. Since the document is signed using the UIDAI’s digital certificate, its authenticity can be cryptographically verified, offering a stronger guarantee of authenticity than any notarial attestation.
What the UIDAI does today, every other authority that issues digital documents can do as well. If, instead of insisting on notarized copies of physical documents, everyone starts accepting verifiable credentials digitally signed by the issuer, we can reduce friction while improving the reliability of documentation across the country. Where affidavits are required, all we need to do is enable citizens to prepare these declarations and certify them with their own Aadhaar e-sign.
The notary was a necessary solution to the problem of establishing trust at a time when there was no reliable societal infrastructure to do so. That problem has since been solved —not by better intermediaries, but by digital infrastructure. Verifiable credentials do not just digitize documents, they replace trust in people with trust in systems.
It has been 2,000 years since we invented the tabellio. There is no reason we should still be hanging on to systems bound by constraints of the past. Other than inertia and our reluctance to let go.
The author is a partner at Trilegal and the author of ‘The Third Way: India’s Revolutionary Approach to Data Governance’. His X handle is @matthan.
English (US) ·