Proceedings, and the Powers of a Civil Court

Section 9(6) does not cure everything. Compare it with the far broader saving that section 4(2) gives to appointments. Section 9(6)(b) saves an act done by a person whose appointment is defective; it does not save an act done by a person who was never appointed at all, and clause (c) is confined to irregularities not affecting the merits. Chapter 610 is the proof that a defective appointment is not beyond challenge: when the recommendation was held non est, the appointment went with it.

Section 10: acting arrangements

10(1): a vacancy. On any vacancy in the office of the Central Vigilance Commissioner by reason of his death, resignation or otherwise, the President may by notification authorise one of the Vigilance Commissioners to act as Central Vigilance Commissioner until a new one is appointed.

10(2): an absence. When the Central Vigilance Commissioner is unable to discharge his functions owing to absence on leave or otherwise, such one of the Vigilance Commissioners as the President may by notification authorise shall discharge his functions until he resumes his duties.

Notice what section 10 does not say. It does not say the senior-most Vigilance Commissioner succeeds automatically. The President chooses, by notification, and the choice is the Government's. Section 9(5), which does use seniority, governs only who presides at a meeting.

And notice the gap this creates in practice. An acting Central Vigilance Commissioner appointed under section 10 has not gone through the Committee in section 4 and has not been recommended by anyone. Where a Government is slow to fill the substantive vacancy, an acting head chosen by it runs the anti-corruption watchdog indefinitely. The section fixes no outer limit on "until the appointment of a new Central Vigilance Commissioner", and chapter 750 counts that among the Commission's structural weaknesses.

Section 11: the powers of a civil court

The Commission shall, while conducting any inquiry referred to in clauses (b) and (c) of sub-section (1) of section 8, have all the powers of a civil court trying a suit under the Code of Civil Procedure 1908, and in particular in respect of:

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses or other documents; and (f) any other matter which may be prescribed.

This list is the standard Indian inquiry-powers formula. Chapter 440 read section 4 of the Commissions of Inquiry Act 1952 and chapter 170 read section 27 of the Lokpal Act; the six clauses recur almost word for word. When an examiner asks what powers an inquiry body has, the same six sentences answer for all three, and a candidate who says so has shown that he sees the pattern rather than a list.

A drafting difficulty a careful student should record. As printed, section 11 attaches these powers to inquiries "referred to in clauses (b) and (c) of sub-section (1) of section 8". Look back at chapter 630. Clause (b) is not an inquiry at all: it is the power to give directions to the Delhi Special Police Establishment. Clause (d), the inquiry into a complaint against an officer of the categories in section 8(2), which is the Commission's own principal inquiry power, is not named.

Two readings are possible and the book will not pretend to settle it. On a literal reading the civil court powers attach to a clause that confers no inquiry power and are absent from the clause that does. On a purposive reading the reference is to the inquiry functions of section 8(1), and clause (b) is an obvious slip for clause (d). What can be said with certainty is that the text as enacted reads as it reads, and that a candidate who quotes it accurately and identifies the difficulty is doing more than reproducing a syllabus.

Section 12: the deeming that gives the powers teeth

The Commission shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973, and every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code.

What each limb does.

Section 195 of the Code and Chapter XXVI are the machinery by which a court prosecutes offences against its own authority and against public justice. No court may take cognizance of those offences except on a complaint in writing of the court concerned, and Chapter XXVI sets out the procedure by which the court makes that complaint. Deeming the Commission a civil court for those purposes means the Commission itself may set the prosecution in motion; a private complaint would not lie.

Section 193 of the Penal Code punishes intentionally giving or fabricating false evidence in any stage of a judicial proceeding. Because a proceeding before the Commission is deemed a judicial proceeding, a witness who lies to the Commission commits perjury, which is what makes the oath in section 11(a) mean anything.

Section 196 punishes corruptly using or attempting to use as true or genuine any evidence known to be false or fabricated.

Section 228 punishes intentional insult or interruption to a public servant sitting in any stage of a judicial proceeding, which is contempt in the face of the tribunal.

Currency, and it is the kind of point that separates a good answer from an ordinary one. The Indian Penal Code 1860 was replaced by the Bharatiya Nyaya Sanhita 2023 and the Code of Criminal Procedure 1973 by the Bharatiya Nagarik Suraksha Sanhita 2023, both from 1 July 2024. Section 12 has not been amended, and it is read through the rule in section 8 of the General Clauses Act 1897 that a reference to a repealed enactment is construed as a reference to the corresponding provision of the re-enactment. In the new Codes the corresponding provisions are section 215 and Chapter XXVIII of the Sanhita on procedure, and sections 229, 233 and 267 of the Nyaya Sanhita for false evidence, using false evidence, and insult or interruption in a judicial proceeding.

Do not overstate this in an answer. The correct form is: section 12 as enacted refers to the old Codes; those Codes were replaced with effect from 1 July 2024; the references are carried across by the General Clauses Act; the corresponding provisions are those named above. Write the old numbers first, because that is what the section says.

Sections 11 and 12 together

Section 11 gives the Commission the power to compel. It can summon a witness from anywhere in India, put him on oath, order documents produced and call for a public record.

Section 12 supplies the sanction if he defies or deceives. Lying is perjury, using a forged document is an offence, insulting the Commission in its sitting is an offence, and the Commission itself may complain so that a court can take cognizance.

What the two together still do not give. Neither section lets the Commission punish anybody. Chapter 460 makes the same point about a Commission of Inquiry, and it is the standing feature of Indian inquiry bodies: the powers of a civil court to gather evidence, and none of a criminal court to punish.

A worked example

The Commission is inquiring into a complaint against a Group 'A' officer.

It needs a file the Ministry will not part with. Section 11(b) lets it require discovery and production of the document; section 11(d) lets it requisition a public record or a copy from any court or office.

A contractor who is in another State will not come. Section 11(a) lets the Commission summon and enforce the attendance of any person from any part of India and examine him on oath.

He comes, is sworn, and gives an account the Commission later finds to be deliberately false. Section 12 deems the proceeding a judicial proceeding within the meaning of section 193 of the Penal Code, now section 229 of the Nyaya Sanhita, so the false evidence is an offence; and because the Commission is deemed a civil court for section 195 of the Code of Criminal Procedure, now section 215 of the Sanhita, the complaint must come from the Commission and no court will take cognizance without it.

During the sitting he abuses the Commissioner and refuses to let the proceedings continue. That is section 228 of the Penal Code, now section 267 of the Nyaya Sanhita, and the same route applies.

The Commission is divided two to one on the finding. Section 9(3) requires it to try for unanimity as far as possible; failing that, section 9(4) decides the matter by the majority.

Midway the Central Vigilance Commissioner resigns. Section 10(1) lets the President authorise, by notification, one of the Vigilance Commissioners to act until a new Central Vigilance Commissioner is appointed; and section 9(6)(a) ensures that the inquiry already done is not invalidated merely by reason of the vacancy.

What beginners get wrong

That the Commission is a court. It is deemed to be a civil court for two specified purposes and its proceedings are deemed judicial for three specified offences. Outside those deemings it is not a court and cannot try or punish anyone.

That the senior-most Vigilance Commissioner automatically takes over. Under section 10 the President authorises by notification. Seniority governs only who presides at a meeting under section 9(5).

That section 9(6) validates any appointment. It saves an act or proceeding from invalidity; it does not validate the appointment itself.

That the Commission decides everything by majority. Its procedure and allocation of business need a unanimous decision under section 9(2); business is to be transacted unanimously as far as possible; the majority decides only on a difference of opinion.

That the civil court powers are available for every inquiry. As printed, section 11 names clauses (b) and (c) of section 8(1) and not clause (d).

Quick revision

s.9(1) proceedings at the headquarters. s.9(2) procedure and allocation of business by unanimous decision. s.9(3) business transacted unanimously as far as possible. s.9(4) on a difference, majority. s.9(5) the Central Vigilance Commissioner presides, else the senior-most Vigilance Commissioner present. s.9(6) no act invalid merely by reason of a vacancy, a defect in constitution, a defect in appointment, or an irregularity not affecting the merits.

s.10 the President by notification authorises a Vigilance Commissioner to act on a vacancy, or to discharge the functions during absence on leave or otherwise.

s.11 all the powers of a civil court trying a suit under the Code of Civil Procedure 1908, in particular: attendance on oath from any part of India; discovery and production of documents; evidence on affidavits; requisitioning public records; commissions for examination; and any other prescribed matter. As printed, for inquiries under clauses (b) and (c) of s.8(1).

s.12 the Commission is deemed a civil court for s.195 and Chapter XXVI of the Code of Criminal Procedure, and its proceedings are deemed judicial proceedings for ss.193, 196 and 228 of the Indian Penal Code; read after 1 July 2024 as s.215 and Chapter XXVIII of the Bharatiya Nagarik Suraksha Sanhita and ss.229, 233 and 267 of the Bharatiya Nyaya Sanhita.

Test yourself

1. How does the Commission transact its business? At its headquarters under section 9(1). By unanimous decision it may regulate its own procedure and the allocation of business among the Commissioners under section 9(2). All other business is to be transacted unanimously as far as possible under section 9(3), and where the Commissioners differ, the matter is decided by the majority under section 9(4). The Central Vigilance Commissioner presides, or if he is unable to attend, the senior-most Vigilance Commissioner present. Section 9(6) saves its acts and proceedings from invalidity merely by reason of a vacancy, a defect in its constitution, a defect in the appointment of a person acting as a Commissioner, or an irregularity in procedure not affecting the merits.

2. What happens when the office of Central Vigilance Commissioner falls vacant? Section 10(1) empowers the President, by notification, to authorise one of the Vigilance Commissioners to act as Central Vigilance Commissioner until a new one is appointed, and section 10(2) makes similar provision where he is unable to discharge his functions owing to absence on leave or otherwise. The choice is the President's and is not governed by seniority, and the section sets no outer limit on how long an acting arrangement may continue, which is a criticism of it.

3. What powers does the Commission have while conducting an inquiry? All the powers of a civil court trying a suit under the Code of Civil Procedure 1908, and in particular the powers of summoning and enforcing the attendance of any person from any part of India and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavits, requisitioning any public record or copy from any court or office, issuing commissions for the examination of witnesses or documents, and any other matter that may be prescribed. The formula is the same as section 4 of the Commissions of Inquiry Act 1952 and section 27 of the Lokpal and Lokayuktas Act 2013. As printed, section 11 attaches those powers to inquiries referred to in clauses (b) and (c) of section 8(1), although clause (b) is the direction-giving power and clause (d), the inquiry into a complaint, is not named.

4. What is the effect of section 12? It deems the Commission a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure 1973, so that a prosecution for an offence against its authority or against public justice can be launched only on its own complaint and by the procedure that Chapter lays down; and it deems every proceeding before it a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, so that giving false evidence before it is perjury, corruptly using evidence known to be false is an offence, and intentional insult or interruption during its sitting is an offence. Since 1 July 2024 those references are read, through section 8 of the General Clauses Act 1897, as section 215 and Chapter XXVIII of the Bharatiya Nagarik Suraksha Sanhita 2023 and sections 229, 233 and 267 of the Bharatiya Nyaya Sanhita 2023.

5. Do sections 11 and 12 make the Commission a court? No. Section 11 gives it the evidence-gathering powers of a civil court, and section 12 deems it a civil court and its proceedings judicial for the limited purposes named in the section. Outside those deemings it is not a court: it cannot try an offence, convict anyone or impose a punishment, and it can do no more than record what happened and set the criminal machinery in motion by its own complaint. That combination, full powers to gather evidence and none to punish, is the standing pattern of Indian inquiry bodies, and it is the same in the Commissions of Inquiry Act 1952 and in the Lokpal and Lokayuktas Act 2013.