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Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023 -Presumption as to Certified Copies of Foreign Judicial Records [Section 88]
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption relating to certified copies of judicial records of foreign countries. This provision facilitates the proof of foreign judicial documents by reducing the difficulty involved in formally proving records originating outside India.
Statutory ProvisionSection 88(1): Presumption of Genuineness and AccuracyUnder Section 88(1), the Court may presume that a document purporting to be a certified copy of a judicial record of any country outside India is genuine and accurate, provided that:
Section 88(2): Presumption as to Representative of the Central GovernmentSection 88(2) clarifies who may be treated as a representative of the Central Government for the purpose of certification. It provides that:
Scope and Nature of the Presumption
Geographical ScopeSection 88 applies broadly to judicial records of any country beyond India, without limiting its application to specific jurisdictions. This marks a departure from the narrower wording of the corresponding provision in the earlier law, thereby expanding its applicability to judicial records from all foreign countries.
Illustrative PositionIf a party seeks to produce certified copies of court records from a foreign jurisdiction, the Court should not reject such an application merely because certification has not yet been obtained. The party must first be given a reasonable opportunity to:
ConclusionSection 88 of the Bharatiya Sakshya Adhiniyam, 2023 simplifies the process of proving foreign judicial records by allowing courts to presume the genuineness and accuracy of properly certified copies. By recognising authorised representatives of the Central Government and preserving alternative methods of proof, the provision balances procedural convenience with evidentiary fairness.
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption relating to certified copies of judicial records of foreign countries. This provision facilitates the proof of foreign judicial documents by reducing the difficulty involved in formally proving records originating outside India.
Statutory ProvisionSection 88(1): Presumption of Genuineness and AccuracyUnder Section 88(1), the Court may presume that a document purporting to be a certified copy of a judicial record of any country outside India is genuine and accurate, provided that:
- The document appears to be certified, and
- The certification is made in a manner which is certified by a representative of the Central Government in or for that country as being the manner commonly used there for certifying copies of judicial records.
Section 88(2): Presumption as to Representative of the Central GovernmentSection 88(2) clarifies who may be treated as a representative of the Central Government for the purpose of certification. It provides that:
- An officer of any territory or place outside India who is a Political Agent, as defined under Section 3(43) of the General Clauses Act, 1897,
- Shall be deemed to be a representative of the Central Government in and for the country comprising that territory or place.
Scope and Nature of the Presumption
- The presumption under Section 88 is discretionary, as indicated by the words “may presume”.
- It extends only to the genuineness and accuracy of the certified copy, and not to the correctness of the judicial findings recorded therein.
- The section does not exclude other modes of proof. A party may still prove a foreign judicial record by other legally recognised methods if certification under Section 88 is not available.
Geographical ScopeSection 88 applies broadly to judicial records of any country beyond India, without limiting its application to specific jurisdictions. This marks a departure from the narrower wording of the corresponding provision in the earlier law, thereby expanding its applicability to judicial records from all foreign countries.
Illustrative PositionIf a party seeks to produce certified copies of court records from a foreign jurisdiction, the Court should not reject such an application merely because certification has not yet been obtained. The party must first be given a reasonable opportunity to:
- Have the documents certified by a recognised representative of the Central Government, or
- Prove them through any other admissible mode of proof.
ConclusionSection 88 of the Bharatiya Sakshya Adhiniyam, 2023 simplifies the process of proving foreign judicial records by allowing courts to presume the genuineness and accuracy of properly certified copies. By recognising authorised representatives of the Central Government and preserving alternative methods of proof, the provision balances procedural convenience with evidentiary fairness.
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