​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declarations Giving Opinion as to Public Right or Custom or Matters of General Interest (Section 26(d))
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1. Basic Principle of Section 26(d)Under Section 26(d) of the Bharatiya Sakshya Adhiniyam, the law provides that:
Statements expressing opinions about public rights, customs, or matters of general interest are relevant, when made by a person who is unavailable as a witness, provided such statements were made before any dispute arose (ante litem motam).

2. Nature of Such Declarations

• These are:
  • Opinion-based statements
• Made by:
  • Persons who:
    • Are dead, or
    • Cannot be called as witnesses

👉 Concern:

• Public or community-related matters

3. Essential Conditions (Note Form)For admissibility under Section 26(d):

• ✔ Unavailability of Maker
  • Person must be:
    • Dead or otherwise unavailable
• ✔ Nature of Statement
  • Must be:
    • An expression of opinion
• ✔ Subject Matter
  • Must relate to:
    • Public right, OR
    • Custom, OR
    • Matter of general/public interest
• ✔ Knowledge Requirement
  • Person must be:
    • Likely to have knowledge of the subject
• ✔ Ante Litem Motam
  • Statement must be made:
    • Before dispute arose

4. Meaning of Key Terms(i) Public Right

• Rights enjoyed by:
  • All members of the public

👉 Example:

• Right to use public roads

(ii) General Right

• Rights affecting:
  • A considerable section of society
• (Linked to Section 42)

(iii) Custom

• A practice:
  • Accepted and followed over time
• Recognized by:
  • Community or group

5. Scope of the Provision

• Applies to:
  • Community-wide or public matters
• Does NOT apply to:
  • Private rights or titles

6. Important Limitation❌ Not applicable to:

• Private property disputes
• Family customs
• Individual rights

👉 Examples excluded:

• Boundary disputes of private land
• Private right of way
• Family customs

7. Evidentiary Value

• ✔ Statements are:
  • Relevant evidence

👉 Because:

• They reflect:
  • Long-standing public understanding

8. Key Legal Principle👉 Opinions about public rights or customs made before any dispute by knowledgeable but unavailable persons are admissible as relevant evidence.

9. Purpose of Section 26(d)

• Facilitates proof of:
  • Public rights and customs
• Recognizes:
  • Difficulty in producing direct evidence of:
    • Ancient or customary practices

10. Key Takeaways

• Section 26(d) deals with:
  • Opinion on public rights and customs
• Conditions:
  • Unavailable witness
  • Knowledge of subject
  • Ante litem motam
• Excludes:
  • Private rights

One-Line Summary👉 Opinions of unavailable persons regarding public rights or customs, made before dispute, are relevant evidence but do not apply to private rights.