Introduction
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), marks a significant shift in Indian evidence law, replacing the Indian Evidence Act of 1872. Enacted as part of a larger overhaul of India’s criminal justice framework, the BSA aims to modernize rules of evidence and streamline judicial processes in line with contemporary legal needs. One of its key provisions is Section 88, located in Chapter 5, which deals with documentary evidence. Section 88 introduces a presumption regarding the authenticity of certified copies of foreign judicial records, providing a procedural advantage in cases involving international documentation.
This article aims to explain Section 88 in detail, clarify its language, and evaluate its practical implications in legal proceedings involving foreign judicial records.
Legal Context and Purpose of Section 88
Section 88 addresses a common issue in international legal proceedings—how Indian courts should treat certified copies of judicial records from other countries. With increasing globalization, it has become routine for Indian courts to encounter documents originating from foreign jurisdictions. These may arise in contexts such as commercial disputes, enforcement of foreign judgments, extradition cases, child custody matters, and immigration appeals.
In such cases, a mechanism is needed to assess the authenticity and admissibility of judicial documents without placing undue burden on the parties. Section 88 provides a solution by allowing Indian courts to presume the genuineness and accuracy of foreign judicial records, provided certain conditions are met. This helps facilitate cross-border legal cooperation and avoids unnecessary delays.
Understanding Sub-section (1)
Sub-section (1) of Section 88 states:
“The Court may presume that any document purporting to be a certified copy of any judicial record of any country beyond India is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.”
This provision can be broken down into several important components.
First, the phrase “may presume” indicates that the court is not obligated to accept the document as genuine but has the discretion to do so. This discretionary presumption is rebuttable, meaning the other party can challenge it with contrary evidence.
Second, the document in question must “purport to be a certified copy” of a judicial record. This includes judgments, orders, decrees, or other official court documents issued by a foreign court.
Third, the certification must follow the procedure commonly used in the foreign country. Importantly, this procedure must itself be certified by a representative of the Indian Central Government posted in or responsible for that foreign country.
In essence, this clause aims to eliminate doubts over the authenticity of foreign judicial records when proper diplomatic or consular validation is available. It recognizes the practical difficulties in verifying the legitimacy of foreign records through standard procedures and offers a more efficient alternative.
Understanding Sub-section (2)
Sub-section (2) provides clarity on who qualifies as a representative of the Central Government for the purposes of this section. It states:
“An officer who, with respect to any territory or place outside India is a Political Agent therefor, as defined in clause (43) of section 3 of the General Clauses Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.”
This sub-section draws on the definition of a “Political Agent” from the General Clauses Act, 1897, referring to an officer officially recognized to act on behalf of the Central Government in foreign territories. In modern terms, this would typically include Indian diplomats, consular officials, or embassy officers assigned to that country.
For example, an Indian consular officer in the United Kingdom may issue a certification confirming that a particular form of document certification is the standard practice in UK courts. Based on such a certification, an Indian court may presume the genuineness and accuracy of the attached judicial record.
Scope and Practical Application
Section 88 has wide applicability, particularly in the current globalized legal environment. Foreign judicial records are often used in Indian proceedings for various purposes. These include enforcing foreign court orders, verifying a party’s legal status, establishing divorce or marriage records, or confirming judgments in cross-border commercial disputes.
For instance, in an extradition proceeding, Indian authorities may present a certified copy of a foreign arrest warrant. Similarly, a party seeking to enforce a UK court judgment in India might rely on a certified copy of that judgment. Section 88 facilitates these processes by reducing the need for the party to produce a witness or obtain extensive secondary proof to validate the document’s authenticity.
Presumption vs. Conclusive Proof
It is important to distinguish between a presumption and conclusive proof in law. A presumption allows the court to assume a fact unless it is disproved, whereas conclusive proof cannot be challenged. Section 88 deals with a presumption, meaning the authenticity and accuracy of the certified copy can still be questioned by the opposing party.
If a party believes that the foreign judicial document is forged, outdated, or improperly certified, they may present evidence to challenge its authenticity. The court will then evaluate both sides before reaching a decision. Thus, while Section 88 simplifies the process, it does not override principles of fairness or due process.
Judicial Discretion and Safeguards
Although Section 88 empowers courts to presume the genuineness of foreign records, it does not make this presumption automatic. The language “may presume” leaves the final decision to the discretion of the judge, who may examine the context and the accompanying certification.
Courts are expected to act with caution, especially in cases where a party raises reasonable doubts about the document. For instance, if the document appears suspicious or lacks adequate certification, the court may require further evidence before accepting it. These safeguards ensure that the presumption is not misused and that justice is not compromised.
Alignment with Previous Laws and International Practice
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023, is broadly similar to Section 86 of the now-repealed Indian Evidence Act, 1872. However, the new provision is drafted in clearer language and aligns better with current diplomatic practices and international protocols.
Many countries have similar rules allowing courts to accept foreign public documents based on certification by diplomatic or consular authorities. By codifying this presumption in the BSA, India brings its evidence law in line with globally accepted legal standards.
Illustrative Example
Consider a civil case in India involving the division of property, where one party seeks to prove that a particular property in the United States was transferred to them under a probate order issued by a US court. To support their claim, they submit a certified copy of the probate order, along with a certification from the Indian consulate in the US confirming that this is the standard method of judicial certification in that country.
Under Section 88, the Indian court may presume the document to be genuine and accurate, unless the opposing party can offer convincing evidence to the contrary. This saves considerable time and resources for the party presenting the document, while still allowing an opportunity for rebuttal.
Read also: BSA Section 70
Conclusion
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023, plays a crucial role in facilitating the use of foreign judicial records in Indian courts. By allowing courts to presume the authenticity and accuracy of certified copies, the provision simplifies procedural requirements and promotes efficiency in cross-border litigation. At the same time, the discretionary nature of the presumption and the option for rebuttal ensure that the provision is not misused.
In a legal system that increasingly intersects with international laws and jurisdictions, Section 88 serves as an essential bridge, enabling smoother judicial cooperation and reinforcing the credibility of foreign evidence within the Indian legal framework.
