Proving the Truth

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) modernizes the law of evidence in India while retaining its foundational principles. It lays down clear provisions regarding what facts need not be proved, how oral evidence should be presented and how documentary evidence including electronic and digital records may be proved. The BSA harmonizes traditional evidentiary concepts with contemporary realities ensuring that courts can efficiently deal with both conventional and electronic forms of proof.

What is the rule regarding facts which are judicially noticeable?

No fact of which the Court will take judicial notice needs to be proved.

Which facts shall the Court take judicial notice of?

The Court shall take judicial notice of the following facts:

1. a)
   All laws in force in the territory of India, including laws having extra-territorial operation.
2. b)
   International treaties, agreements, or conventions with countries by India, or decisions made by India at international associations or other bodies.
3. c)
   The course of proceedings of the Constituent Assembly of India, of Parliament of India, and of the State Legislatures.
4. d)
   The seals of all Courts and Tribunals.
5. e)
   The seals of Courts of Admiralty and Maritime Jurisdiction, Notaries Public, and all seals which any person is authorised to use by the Constitution, or by an Act of Parliament or State Legislature, or by Regulations having the force of law in India.
6. f)
   The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette.
7. g)
   The existence, title, and national flag of every country or sovereign recognised by the Government of India.
8. h)
   The divisions of time, the geographical divisions of the world, and public festivals, fasts, and holidays notified in the Official Gazette.
9. i)
   The territory of India.
10. j)
    The commencement, continuance, and termination of hostilities between the Government of India and any other country or body of persons.
11. k)
    The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of advocates and other persons authorised by law to appear or act before it.
12. l)
    The rule of the road on land or at sea.

What may the Court do in relation to judicial notice and reference materials?

In such cases, and also on all matters of public history, literature, science or art, the Court may resort to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless such person produces such books or documents as it considers necessary.

What caution must the Court exercise while relying on historical texts?

The Court must exercise caution before deriving negative inferences from historical texts i.e., the absence of a reference to an event in a historical text cannot be a decisive factor to believe or disbelieve a fact. The Court must be circumspect in drawing negative inferences from what a historical text does not contain.

What is the rule regarding admitted facts?

No fact needs to be proved in any proceeding which the parties or their agents agree to admit at the hearing, or which before the hearing they agree to admit in writing, or which by any rule of pleading they are deemed to have admitted. However, the Court may require such facts to be proved otherwise than by such admissions.

What is the nature of admissions as evidence?

(a)
An admission enabling inference of another’s title must be clear and explicit. An admission cannot create title.

(b)
Admitted facts need not be proved.

(c)
Admission of fact must be during trial or at hearing.

How may facts be proved by oral evidence?

All facts, except the contents of documents, may be proved by oral evidence.

What is meant by direct oral evidence?

Oral evidence shall, in all cases, be direct. If it refers to:

(a)
A fact that could be seen, it must be evidence of a witness who saw it.

(b)
A fact that could be heard, it must be evidence of a witness who heard it.

(c)
A fact perceived by any other sense, it must be evidence of the witness who perceived it.

(d)
An opinion, it must be evidence of the person who holds that opinion.

(e)
However, opinions of experts expressed in published treatises may be proved by producing such treatises if the author is dead, missing, incapable, or cannot be called without unreasonable delay or expense. The Court may require production of any material thing referred to by oral evidence for inspection.

What is the rule regarding hearsay evidence?

Testimony based on information from another person is inadmissible unless that informant is examined as a witness.

How may the contents of documents be proved?

The contents of documents may be proved either by primary or by secondary evidence.

What is primary evidence?

Primary evidence means the document itself produced for the Court’s inspection.

(a)
If a document is executed in several parts, each part is primary evidence.

(b)
Each counterpart is primary evidence against the party executing it.

(c)
Documents made by a uniform process (printing, lithography, photography) are primary evidence of each other but not of the original.

(d)
Each simultaneously or sequentially stored digital file is primary evidence.

(e)
Electronic or digital records produced from proper custody are primary evidence unless disputed.

(f)
Simultaneously stored and transmitted video recordings, each stored copy is primary evidence.

(g)
Every automated digital storage file in a computer resource is primary evidence.

(h)
A person possesses many placards printed from one original. Any placard is primary evidence of another placard’s content but not of the original.

What constitutes secondary evidence?

Secondary evidence includes:

(a)
Certified copies;

(b)
Mechanically reproduced copies ensuring accuracy;

(c)
Copies compared with originals;

(d)
Counterparts against non-executing parties;

(e)
Oral accounts by a person who saw the original;

(f)
Oral admissions;

(g) Written admissions;

(h)
Expert summaries of numerous documents.

How should documents ordinarily be proved?

Documents must be proved by primary evidence except in cases where secondary evidence is allowed.

When may secondary evidence of documents be given?

Secondary evidence may be given when:

(a)
The original is in the possession or power of the opposite party, or a person beyond reach, or legally bound to produce it but fails to do so after notice;

(b)
The contents of the original are admitted in writing;

(c)
The original is destroyed, lost, or cannot be produced without fault;

(d)
The original is not easily movable;

(e)
The original is a public document;

(f)
The original is one where certified copies are admissible;

(g)
The originals consist of numerous accounts and the general result is to be proved.

What is the rule regarding electronic or digital records as evidence?

No electronic or digital record shall be denied admissibility merely for being electronic. It has the same legal effect and validity as other documents, subject to prescribed provisions.

How can the contents of electronic records be proved?

The contents of electronic records may be proved in accordance with the relevant provisions on electronic evidence.

When is an electronic record admissible as evidence?

An electronic record printed, stored, recorded, or copied in any digital medium shall be admissible if certain conditions are satisfied:

(a)
It was produced during regular use;

(b)
The information was regularly fed in ordinary course;

(c)
The device was functioning properly;

(d)
The information reproduced is derived from regularly fed data.

(e)
All devices used collectively form a single system.

(f)
A certificate must identify the record, describe production, give particulars of the device, and be signed by the responsible person or expert.

What are the rules regarding notice to produce documents?

Secondary evidence of certain documents cannot be given unless notice to produce is given to the opposite party. However, no notice is required when:

(a)
The document itself is a notice;

(b)
The adverse party must know it will be required;

(c)
The original was obtained by fraud or force;

(d) The original is in Court;

(e)
The adverse party admits loss;

(f)
The holder is beyond the Court’s reach.

How is the handwriting or signature of a person proved?

If a document is alleged to be signed or written by a person, the handwriting or signature must be proved to be that person’s handwriting.

How is an electronic signature proved?

Except in the case of a secure electronic signature, the electronic signature of a subscriber must be proved to be his signature.

How is the execution of a document required by law to be attested proved?

A document required by law to be attested shall not be used as evidence until at least one attesting witness is called, if available and capable. However, for a registered non-will document, calling a witness is unnecessary unless execution is specifically denied.

What if no attesting witness can be found?

It must be proved that the attestation is in the handwriting of one witness and that the signature of the executing person is in his handwriting.

What if a party admits execution of an attested document?

Admission of execution by a party is sufficient proof of execution as against him, even if attestation was required.

What happens when the attesting witness denies or forgets execution?

The execution of the document may then be proved by other evidence.

How is an attested document not required by law to be attested proved?

Such a document may be proved as if it were unattested.

How may a Court compare handwriting, signatures, or seals?

(a)
The Court may compare any signature, writing, or seal with others admitted or proved to be that person’s, even if produced for no other purpose.

(b)
The Court may direct any person in Court to write words or figures for comparison.

(c)
This rule applies with necessary modifications to finger impressions.

How is a digital signature verified?

The Court may direct:

(a)
The person concerned, the Controller, or the Certifying Authority to produce the Digital Signature Certificate; or

(b)
Any other person to apply the public key listed in the certificate to verify the digital signature.

Therefore, in essence, the BSA preserves the core principles of the law of evidence while embracing technological advancement. By defining when facts need not be proved and providing structured rules for oral and documentary evidence, it strengthens the fairness and efficiency of judicial proceedings. The BSA ensures that justice remains rooted in truth, relevance and reliability even in an increasingly digital age.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.