The Diplomatic and Consular Officers (Oaths and Fees) Act, 1948

What it does

The Act gives an Indian diplomatic or consular officer the powers of a notary and of an officer who administers oaths, for use in India, while the officer is abroad. Section 3(1), as the site's note on powers of attorney records, lets such an officer in a foreign country or place where he is exercising his functions administer an oath, take an affidavit and do any notarial act that a notary public may do within a State. Each of those acts is as effectual as if it had been done before a lawful authority in a State.

Section 3(2) deals with proof. A document bearing the officer's seal and signature is admitted in evidence without proof of either, and without proof of the officer's official character. The Act also provides for fees, which is the second half of its title.

Who it binds

The Act empowers officers of the Government of India posted abroad, and it is used by anyone resident abroad who needs a document to be accepted in India, such as a non-resident Indian signing a power of attorney or swearing an affidavit. It does not bind a foreign notary, who acts under the law of the country where he practises, and it does not make a foreign document valid in India. For that, a different route is needed.

What has changed, and when

The Act is an old and short one. The evidence presumption that sits beside it has changed. The presumption as to a power of attorney executed before and authenticated by a notary public, a court, a judge, a magistrate, an Indian consul or vice-consul, or a representative of the Central Government now sits in section 84 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced section 85 of the Indian Evidence Act, 1872. The presumption is of execution and authentication only, and says nothing about the scope of the authority, stamp duty or registration.

What turns on it in practice

The usual setting is a property in India that an owner living abroad wishes to sell, mortgage or manage through an attorney. The site's note on a power of attorney signed abroad to sell a flat in Bengaluru sets out the choice. One route is signature before an Indian consular officer, which this Act supports. The other is signature before a notary of the country where the owner lives, followed by an apostille under the Hague Convention of 1961, which India joined in 2005 on the Ministry of External Affairs' account. The apostille certifies the origin of the signature or seal on the foreign public document. It does not stamp or register the document.

The Act addresses authentication and nothing else, and three further steps remain. The instrument must be stamped in Karnataka within three months of first reaching the State, under section 18 of the Karnataka Stamp Act, 1957, where the property is there. A general power of attorney does not itself transfer a flat: the Supreme Court has held that a transfer needs a registered deed of conveyance, which the attorney can sign on the owner's behalf. And the authority in the instrument must be drawn to cover the particular act, because the presumption in the Evidence law does not widen it.

For the real estate and RERA practice, the consular route has the advantage that section 3(2) itself speaks to proof of the officer's seal and signature.