Section 88 BSA: Presumption as to Certified Copies of Foreign Judicial Records

Section 88 BSA explains when Indian courts may presume that certified copies of foreign judicial records are genuine and accurate.

Introduction

Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to certified copies of foreign judicial records. It enables Indian courts to presume the genuineness and accuracy of qualifying certified copies of judicial records originating outside India, provided the statutory requirements are satisfied.

The provision is relevant in civil litigation, disputes involving foreign judgments, matrimonial proceedings, cross-border commercial disputes and cases in which a party relies on records maintained by a foreign court.

Section 88 corresponds to Section 86 of the Indian Evidence Act, 1872. The provision retains the essential rule that the court may draw the presumption where the certification method is confirmed by a representative of the Central Government as being commonly used in the relevant country.

Section 88 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

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 (10 of 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.

Explanation of Section 88 BSA

Section 88 provides a mechanism for dealing with certified copies of judicial records originating in foreign countries. Rather than requiring the certification process to be independently established in every case, the provision permits the court to draw a presumption when the specified conditions are met.

The provision has two subsections. Subsection (1) addresses the presumption concerning certified copies, while subsection (2) identifies a category of officer who is treated as a representative of the Central Government for this purpose.

1. What are foreign judicial records?

Foreign judicial records are records associated with judicial proceedings or courts in countries outside India.

Depending on the circumstances, these may include:

• Certified copies of judgments delivered by foreign courts.
• Certified copies of foreign court orders.
• Copies of records maintained by a foreign court.
• Other judicial records whose certified copies are relied upon in Indian proceedings.

Whether a particular document qualifies as a judicial record depends on its nature and the applicable law.

2. What is a certified copy?

A certified copy is a copy whose accuracy or authenticity is formally certified by an authorised person or authority in accordance with the applicable procedure.

For Section 88 to apply, it is not sufficient that a document merely appears to be a copy of a foreign judgment. The document must purport to be certified in a manner recognised by the statutory provision.

The certification method must be certified by a representative of the Central Government in or for the relevant country as the method commonly used there for certifying copies of judicial records.

This requirement connects the foreign certification process with the evidentiary presumption available before an Indian court.

3. Meaning of “may presume”

Section 88 uses the expression “may presume”, rather than “shall presume”.

Under Section 2 of the Bharatiya Sakshya Adhiniyam, the expression “may presume” gives the court discretion to treat a fact as proved unless and until it is disproved, or to require proof of that fact.

Therefore, even where the statutory conditions are met, the presumption under Section 88 is discretionary. The court is not compelled to draw it in every case.

Also Read: Section 86 BSA: Presumption as to Electronic Records and Electronic Signatures

This differs from provisions using “shall presume”, which direct the court to draw the specified presumption when the statutory requirements are satisfied.

4. Presumption of genuineness and accuracy

Section 88 permits the court to presume two related matters:

• Genuineness: That the document is what it purports to be, namely a certified copy of a foreign judicial record.
• Accuracy: That the certified copy accurately reproduces the judicial record.

These presumptions concern the document’s genuineness and accuracy as a copy. They do not automatically establish that every factual finding in the foreign judgment is correct, that the foreign court had jurisdiction in every legal sense, or that the judgment is conclusive or enforceable in India.

Those questions must be considered under the applicable law.

5. Role of a representative of the Central Government

Section 88(1) requires the certification method to be certified by a representative of the Central Government in or for the relevant country as a method commonly used there for certifying copies of judicial records.

The provision does not require the court to assume that every certification method used abroad meets this condition. The statutory link between the certification method and the confirmation by the specified representative must be established.

Subsection (2) further provides that an officer who is a Political Agent for a territory or place outside India, as defined in Section 3(43) of the General Clauses Act, 1897, is deemed to be a representative of the Central Government for the purposes of this section.

This deeming provision clarifies whose status may satisfy the representative requirement in the specified circumstances.

Illustration of Section 88 BSA

Suppose a party in a civil suit in India relies on a certified copy of a judgment delivered by a court in Canada.

The document purports to have been certified using a method that a representative of the Central Government in or for Canada has certified as commonly used in that country for certifying copies of judicial records.

The Indian court may presume that the document is genuine and accurate under Section 88, subject to its discretion and the circumstances of the case.

However, the presumption does not automatically mean that the Canadian judgment is enforceable in India. The court must separately consider any applicable requirements concerning foreign judgments, jurisdiction, conclusiveness and enforcement.

Important Case Laws on Section 88 BSA

Section 88 carries forward Section 86 of the Indian Evidence Act, 1872. The following decisions and legal materials concerning the predecessor provision help explain the rule. They should not be described as judgments directly interpreting Section 88 unless they actually considered the BSA provision.

1. Aleyamma Kuruvilla v. Pennamma Thomas, 1994 (1) Crimes 670 (Kerala High Court)

The Law Commission of India’s 185th Report on the Indian Evidence Act discusses this decision in connection with Section 86. The case concerned a fax copy of an order passed by an American court and attested by the Indian Consulate.

The report notes that the fax copy was held admissible as secondary evidence. It also explains that Section 86 does not exclude other methods of proof.

Legal principle: The statutory presumption concerning certified copies of foreign judicial records does not necessarily exclude other legally available methods of proving a foreign judicial record. The admissibility of a particular copy must still be assessed under the applicable evidentiary rules.

2. Kassim v. Isaf Md., ILR 29 Cal. 509

The Law Commission’s 185th Report also refers to this decision while discussing Section 14 of the Code of Civil Procedure, 1908.

Section 14 CPC provides a separate rule concerning the presumption of jurisdiction where a foreign judgment is produced with the required authentication.

Legal principle: The evidentiary presumption concerning a certified copy of a foreign judicial record must be distinguished from the separate legal question of whether the foreign court had competent jurisdiction and whether its judgment satisfies the requirements applicable in India.

Also Read: Section 14 of Bharatiya Sakshya Adhiniyam, 2023: Existence of Course of Business When Relevant

Important distinction: Section 88 concerns the genuineness and accuracy of a qualifying certified copy. It should not be treated as independently resolving every issue relating to recognition or enforcement of a foreign judgment.

Relationship Between Section 88 BSA and Section 14 of the Code of Civil Procedure, 1908

Section 88 BSA and Section 14 CPC serve different purposes.

Section 88 concerns the evidentiary presumption applicable to qualifying certified copies of foreign judicial records. Section 14 CPC provides a presumption concerning the jurisdiction of the foreign court where a foreign judgment is produced with the required authentication.

These provisions may become relevant in the same proceeding, but one should not be substituted for the other.

A certified copy may qualify for the presumption under Section 88 without that fact alone establishing that the foreign judgment is conclusive or enforceable in India.

The requirements of Sections 13 and 14 CPC, where applicable, must be considered separately when a party seeks recognition or enforcement of a foreign judgment.

Difference Between Section 88 BSA and Section 89 BSA

Section 88 and Section 89 deal with different categories of documents.

Basis	Section 88 BSA	Section 89 BSA
Subject	Certified copies of foreign judicial records	Books, maps and charts
Nature of documents	Certified copies of judicial records originating outside India	Books used for public or general interest and published maps or charts whose statements are relevant facts
Type of presumption	Genuineness and accuracy of qualifying certified copies	Matters relating to authorship, publication time and place, subject to the statutory conditions
Certification requirement	Certification method must be confirmed as commonly used in the relevant country	The provision addresses qualifying books, maps and charts produced for inspection

The relevant section depends on the type of document and the purpose for which it is produced.

Difference Between Section 88 BSA and Section 86 BSA

The section numbers should not be confused. Section 86 of the current BSA concerns electronic records and electronic signatures, while Section 88 deals with certified copies of foreign judicial records.

Basis	Section 86 BSA	Section 88 BSA
Subject	Presumption as to electronic records and electronic signatures	Presumption as to certified copies of foreign judicial records
Main focus	Integrity of secure electronic records and intention associated with secure electronic signatures	Genuineness and accuracy of qualifying certified copies of foreign judicial records
Nature of document	Secure electronic records and secure electronic signatures	Certified copies of judicial records from countries outside India
Corresponding provision under the former Evidence Act	Section 85B	Section 86

Section 88 BSA corresponds to Section 86 of the former Indian Evidence Act, 1872, whereas Section 86 BSA corresponds to Section 85B of that Act.

Key Points for Law Students and Judiciary Aspirants

• Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to certified copies of foreign judicial records.
• It corresponds to Section 86 of the Indian Evidence Act, 1872.
• The court may presume that a qualifying certified copy is genuine and accurate.
• The certification method must be certified by a representative of the Central Government in or for the relevant country as commonly used there for certifying copies of judicial records.
• Section 88(2) treats a qualifying Political Agent as a representative of the Central Government for the purposes of the section.
• The expression “may presume” makes the presumption discretionary.
• The presumption does not automatically establish the truth of every finding in the foreign judgment or its enforceability in India.
• Section 88 must be distinguished from Section 14 CPC and the separate rules concerning the recognition and enforcement of foreign judgments.

Frequently Asked Questions (FAQs)

1. What is Section 88 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 88 permits a court to presume that a qualifying certified copy of a judicial record from a country outside India is genuine and accurate, provided the certification requirements in the section are satisfied.

2. Which section of the Indian Evidence Act corresponds to Section 88 BSA?

Section 88 BSA corresponds to Section 86 of the Indian Evidence Act, 1872.

3. Is the presumption under Section 88 mandatory?

No. The provision uses “may presume”, which gives the court discretion to draw the presumption or require further proof.

4. Does Section 88 apply to every foreign judgment?

The provision concerns documents purporting to be certified copies of foreign judicial records. The prescribed certification conditions must be satisfied before the court can consider applying the presumption.

5. Does Section 88 establish that a foreign judgment is enforceable in India?

No. It concerns the genuineness and accuracy of a qualifying certified copy. Recognition, conclusiveness and enforcement of foreign judgments raise separate questions under the applicable law, including Sections 13 and 14 of the Code of Civil Procedure, 1908, where relevant.

6. What is the significance of a Political Agent under Section 88?

Section 88(2) provides that an officer who is a Political Agent for a territory or place outside India, as defined in Section 3(43) of the General Clauses Act, 1897, is deemed to be a representative of the Central Government for the purposes of Section 88.

7. Can a foreign judicial record be proved by another method?

Section 88 does not exclude other legally permissible methods of proof. Whether another method is available depends on the applicable evidentiary rules and the circumstances of the case.

Conclusion

Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 facilitates the use of certified copies of foreign judicial records in Indian proceedings. Where the statutory certification requirements are met, the court may presume that the document is genuine and accurate.

The presumption remains discretionary and limited to the matters addressed by the provision. It does not independently establish the jurisdiction of the foreign court, the conclusiveness of the judgment or its enforceability in India. These issues must be considered separately under the applicable law.

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