Section 88 BSA 2023: Presumption as to Certified Copies of Foreign Judicial Records
Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the evidentiary presumption that a court may draw regarding certified copies of judicial records issued in a country outside India.
Text of Section 88, Bharatiya Sakshya Adhiniyam, 2023
88. Presumption as to certified copies of foreign judicial records. - (1) 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.
(2) 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.
Meaning and effect of Section 88
Section 88 permits, but does not compel, a court to presume that a certified copy of a foreign judicial record is genuine and accurate when the prescribed mode of certification is shown to be the mode commonly used in the foreign country concerned.
The expression "may presume" makes the presumption discretionary. The court may accept the certified copy on the statutory basis, but the surrounding facts and the adequacy of certification can still matter in a particular proceeding.
Conditions for the presumption
- The document must purport to be a certified copy of a judicial record.
- The judicial record must be from a country beyond India.
- The copy must purport to be certified in a manner stated to be commonly used in that foreign country for certification of judicial records.
- That mode of certification must itself be certified by a representative of the Central Government in or for that country.
- For the purpose of this section, the specified Political Agent is deemed to be such a representative of the Central Government.
Who is a "Political Agent" for this provision?
Section 88(2) refers to clause (43) of section 3 of the General Clauses Act, 1897. The cross-reference is important because it identifies the officer who may be treated as a representative of the Central Government for the limited purpose of Section 88.
Practical significance
The provision facilitates proof of foreign court records in Indian proceedings by providing a statutory route for recognition of properly certified copies. It reduces the need to prove every foreign judicial record from the beginning, provided the certification requirements in Section 88 are satisfied.
Whether a particular foreign judgment, order, decree or other judicial record is relevant, admissible or conclusive may also depend on other applicable provisions of law. Section 88 primarily concerns the presumption relating to the genuineness and accuracy of the certified copy.
Official legal sources
For the authoritative text, refer to the Bharatiya Sakshya Adhiniyam, 2023 on India Code. The commencement notification appointing 1 July 2024 as the date on which the BSA came into force is available from the Ministry of Home Affairs.
This page is intended for general legal information. For a specific case involving a foreign judicial record, the applicable procedural law, treaty or convention, and the facts of the case should also be examined.