Section 86 Evidence Act: Presumption as to Certified Copies of Foreign Judicial Records
Section 86 of the Indian Evidence Act, 1872 addressed when an Indian court may presume that a certified copy of a foreign judicial record is genuine and accurate. The corresponding current provision is Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023
Heading: Presumption as to certified copies of foreign judicial records.
Sub-section (1). The Court may presume that a document purporting to be a certified copy of a judicial record of a country beyond India is genuine and accurate if it purports to be certified in a manner which a representative of the Central Government in or for that country certifies to be the manner commonly used there for certifying copies of judicial records.
Sub-section (2). An officer who is a Political Agent for a territory or place outside India, within the meaning of section 3, clause (43), of the General Clauses Act, 1897, is deemed to be a representative of the Central Government for this purpose.
Read the official statutory text: Bharatiya Sakshya Adhiniyam, 2023, Section 88 (India Code PDF).
Meaning and legal effect of the presumption
"May presume" gives the court discretion. Under the statutory definition of that expression, the court may regard the fact as proved unless disproved, or may require further proof. It is not an automatic or conclusive declaration that every foreign court record is authentic.
"Certified copy" refers here to a copy presented as officially certified from the judicial record of a foreign country. The relevant question is whether the method of certification is recognised as commonly used in that country by the designated Indian governmental representative.
"Genuine and accurate" concerns the authenticity and correctness of the certified copy as a record. It does not by itself establish that the foreign judgment is enforceable in India, that its findings bind parties in India, or that all underlying facts are true.
Conditions for invoking Section 88
- The document must purport to be a certified copy of a foreign judicial record, such as an order or judgment.
- Its certification must purport to follow a manner used in the foreign country.
- A representative of the Central Government in or for that country must certify that the manner is commonly used there for judicial-record copies.
- The court must decide whether to exercise its discretion to presume genuineness and accuracy, taking account of any contrary evidence.
Former Section 86 of the Indian Evidence Act, 1872
The earlier provision likewise permitted a court to presume the genuineness and accuracy of a certified copy of a foreign judicial record when its certification method was confirmed by a representative of the Central Government as the usual method in that country. It also treated a qualifying Political Agent as such a representative.
The original wording contained historical references to Her Majesty's Dominions and numerous adaptation and amendment notes. These expressions reflect the statute's colonial drafting history; the current Section 88 uses the modern expression "any country beyond India". The original page's amendment notes included substitutions and omissions made by the Adaptation Orders of 1937 and 1950, Act 3 of 1891, Act 5 of 1899 and Act 3 of 1951. These notes are historical legislative annotations, not separate present-day requirements.
Practical example
Suppose a party produces a certified copy of an order issued by a court in another country. A representative of the Central Government in or for that country certifies that the copy bears the form of certification commonly used for judicial records there. The Indian court may presume that the copy is genuine and accurate. If the opposing party produces credible evidence of tampering or irregular certification, the court may call for further proof.
Other relevant legal provisions
| Provision | Relevance |
|---|---|
| BSA Section 88 | Discretionary presumption for certified copies of foreign judicial records. |
| BSA Section 77 | Modes of proving specified official documents, including certain foreign public documents. |
| Code of Civil Procedure, 1908, Sections 13 and 14 | Separate rules on conclusiveness of foreign judgments and presumption concerning foreign judgments produced as certified copies. |
| General Clauses Act, 1897, Section 3(43) | Statutory definition relevant to the Political Agent reference. |
The presumption under Section 88 should not be confused with the rules governing recognition or execution of foreign judgments. Those questions may require separate consideration under the Code of Civil Procedure, 1908.
Official statutory sources
- Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), India Code
- India Code - official central legislation database
- Legislative Department, Government of India
This article explains the statutory rule for general information. The applicable evidence law and the effect of a particular foreign judicial record depend on the facts and procedural context.