The Best Evidence Rule under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Statutory Expressions and What It Does Not Mean

The best evidence rule is the oldest surviving principle in the law of evidence and the one most often stated wrongly. It does not require a party to produce the best evidence available to him. It requires that where the law prescribes a particular mode of proving something, that mode must be followed and no inferior substitute accepted. The Adhiniyam nowhere states the rule in general terms; it gives effect to it through half a dozen specific provisions scattered across the statute.

1. What the Rule Is

In its modern form the principle is that where the law requires a fact to be proved in a particular way, evidence of an inferior kind is not received in place of it. It operates through prohibitions rather than through a general command, and each prohibition identifies a situation in which a superior form of proof exists and an inferior one is offered.

The historical origin lies in a period when documents were copied by hand and transcription errors were common, when witnesses could not be compelled easily, and when the machinery for testing evidence was primitive. In those conditions a general preference for the most direct available proof made obvious sense. As the machinery improved, the general principle contracted into a set of particular rules, and it is in that form that the Adhiniyam contains it.

2. Where the Rule Appears in the Adhiniyam

Six provisions give effect to the principle, and it is worth seeing them together because each addresses a different way in which inferior proof might be offered.

A seventh expression is found in Section 39(2) read with Section 63, which requires an electronic record tendered otherwise than as primary evidence to be accompanied by a certificate disclosing the hash value. The mechanism is modern but the idea is the same: where a superior form of assurance exists, an inferior one is not accepted.

3. The Documentary Application

The rule is felt most acutely in the proof of documents, and Sections 56 to 60 are its fullest statutory expression.

Three reasons support the preference, and they explain the shape of the exceptions in Section 60.

Accuracy. A copy may be wrong and a recollection almost certainly is imperfect. The original is fixed and can be read.

Detection of tampering. This is the reason that matters most in contested cases and is least often articulated. An original can be examined for alterations, interpolations, erasures, variations in ink and pen pressure, and the sequence of strokes. A photocopy retains almost none of this. Where genuineness is in issue, having the original is the difference between being able to test the document and having to take it on trust.

Completeness. An original is a whole document. A copy may omit an endorsement on the reverse, a schedule, or a page, and the omission may be deliberate.

The exceptions in Section 60 follow from these reasons. Each ground identifies a situation in which the original cannot be produced — it is lost, destroyed, immovable, in the hands of a person beyond the court's process, or is a public record that will not be released — or in which producing it would be pointless, as where its contents have been admitted in writing, or impracticable, as where the originals are numerous accounts. The rule yields where insisting on it would defeat proof altogether rather than improve it.

4. What the Rule Does Not Mean

Three misconceptions recur, and each would make the rule unworkable if it were correct.

4.1 It does not require the best available evidence

There is no rule that a party must lead the strongest evidence he can. A party may prove a fact by one witness where five were present. He may prove a transaction by the testimony of one participant without calling the other. He may rely on circumstantial evidence where direct evidence exists. None of this offends the best evidence rule, because the rule is not about the quality of evidence chosen but about the mode of proof prescribed by law.

This is confirmed by Section 139, which provides that no particular number of witnesses shall in any case be required for the proof of any fact. Evidence is weighed and not counted, and a party who leads sufficient evidence has discharged his burden whether or not he could have led more.

4.2 It does not make inferior evidence inadmissible in general

Secondary evidence is not inadmissible; it is conditionally admissible. Where a ground under Section 60 is established, a copy is received without any reservation and may found a decree. The rule regulates when the substitute may be used, not whether substitutes exist.

4.3 It is not a rule about weight

The rule governs admissibility. Once evidence is admitted, its weight is assessed on the ordinary principles, and admitted secondary evidence is not to be discounted merely because it is secondary. A certified copy of a judgment proves the judgment as effectively as the original would.

5. The Rule and Electronic Records

Electronic records tested the rule more severely than anything before them, because they have no original in the sense the rule assumes. A message exists on the sender's device, the recipient's device, one or more servers and in cached and temporary copies, and no one of these was made from the others.

The Indian Evidence Act had no answer, and the practical consequence was that every electronic output was arguably a copy requiring a certificate. The Adhiniyam supplies the answer in Explanations 3 to 6 of Section 57, which declare that each of several files, each simultaneous storage, each of several simultaneous video recordings, and each automated storage including temporary files is itself primary evidence.

This is not an abandonment of the rule but an adaptation of it. The purpose of preferring the original was to secure accuracy, to permit detection of tampering, and to ensure completeness. For electronic records those purposes are served differently — by the hash value, which detects any alteration however small, and by forensic imaging, which preserves the record in a verifiable state. The certificate regime under Section 63(4) and the Schedule is therefore the modern form of the same principle: it requires the disclosure of the hash value in Part A and an expert declaration in Part B, and it does for an electronic record what production of the original does for a paper one.

6. The Rule in Its Contracting Form

It is often said that the best evidence rule has declined, and the observation is accurate if properly understood.

As a general principle — that a court should always insist on the most direct proof available — the rule has effectively disappeared. Modern procedure permits parties to choose their evidence, admits a very large body of hearsay under exceptions, and assesses what is produced rather than refusing to hear anything until something better is offered.

As a set of specific rules the principle is fully alive, and the provisions listed earlier are all in daily operation. A photocopy tendered without a foundation is still inadmissible; oral evidence varying a written contract is still excluded; a will still requires an attesting witness; and an electronic record still requires a certificate unless it is primary evidence.

The practical lesson is that the rule should be invoked by reference to the provision rather than to the principle. An objection that 'this offends the best evidence rule' is imprecise and easily met. An objection that no foundation under Section 60 has been laid, or that Section 94 excludes oral evidence of the terms, or that no attesting witness has been called under Section 67, identifies exactly what is wrong and what must be done about it.

7. The Rule Compared with Its Neighbours

8. The Position Stated Shortly

1. The rule is that where the law prescribes a mode of proof, an inferior substitute is not received. It is not a rule that the best available evidence must be produced.
2. The Adhiniyam contains no general statement of it. It operates through six or seven specific provisions.
3. Its fullest expression is Section 59, requiring documents to be proved by primary evidence except in the cases mentioned.
4. The exceptions in Section 60 follow from the reasons for the rule. Each identifies a case where insisting on the original would defeat proof rather than improve it.
5. Detection of tampering is the reason that matters most in contested cases, and it is what a copy cannot supply.
6. The rule is about admissibility, not weight, and admitted secondary evidence is not discounted merely for being secondary.
7. Withholding better evidence attracts an adverse inference under Illustration (g) to Section 119, which is a different doctrine — Gopal Krishnaji Ketkar.
8. For electronic records the principle has been adapted, with the hash value and the certificate under Section 63(4) performing the function that production of the original performs for paper.

9. Related Topics and Provisions