Presumptions Regarding Documents under Sections 78 to 93 of the Bharatiya Sakshya Adhiniyam, 2023

Sixteen sections relieve a party of proving things about documents that would otherwise have to be proved. Together they are the reason nobody proves the genuineness of a Gazette, calls the officer who certified a copy, or establishes the execution of a deed whose signatories died two generations ago. Six of the sixteen concern electronic records, which is where the Adhiniyam has moved furthest from the statute it replaced.

1. The Block at a Glance

2. Section 78 — Certified Copies

This is the most used presumption in the block and the reason public documents are proved as easily as they are. Two matters are presumed: that the document is genuine, and that the officer signing it held the office he claims — which relieves the party of proving the appointment of a functionary he has never heard of.

The presumption is conditional. It applies only where the document is substantially in the form and purports to be executed in the manner directed by law, which takes one back to the four elements of Section 75: issue by an officer having custody, a certificate at the foot that it is a true copy, date and subscription with the officer's name and official title, and a seal where he is authorised to use one. A copy lacking any of these does not attract it.

Genuineness is not correctness. The presumption goes to the copy — that it is a true copy issued by the officer who purports to have issued it. It says nothing about whether the entry copied is right. A certified copy of a revenue record is presumed to be a true copy of the record; whether the record correctly states who owns the land is a different question, and revenue entries confer no title.

3. Sections 79 to 84 — The Official Group

Six sections presume the genuineness of documents produced by official process. They share a rationale: the process by which such documents come into existence is itself a guarantee, and requiring proof of it would be an expensive formality.

3.1 Section 79 — Records of evidence

Where a document is produced as a record or memorandum of the evidence given by a witness in a judicial proceeding or before an officer authorised by law to take it, or as a statement or confession by a prisoner or accused person taken in accordance with law and purporting to be signed by a Judge or Magistrate or such authorised officer, the court shall presume that the document is genuine, that any statements as to the circumstances in which it was taken are true, and that the evidence, statement or confession was duly taken.

The provision matters most in relation to confessions and statements recorded by a Magistrate under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The recitals in the memorandum — that the accused was warned, that he was given time to reflect, that the statement was voluntary — are presumed true, which is a considerable advantage to the prosecution and correspondingly a matter the defence must address by evidence rather than by assertion.

3.2 Section 80 — Gazettes and newspapers

The court shall presume the genuineness of every document purporting to be the Official Gazette, or a newspaper or journal, or a document directed by law to be kept by any person, if it is kept substantially in the form required by law and produced from proper custody.

Read with Section 77(c), under which proclamations, orders and regulations may be proved by copies or extracts contained in the Official Gazette, this is why subordinate legislation is never formally proved in an Indian court.

A caution about newspapers. The presumption goes to the genuineness of the document — that the thing produced is the newspaper it purports to be. It says nothing about the truth of the reports in it, which remain hearsay. A newspaper report of an occurrence proves that the report was published, not that the occurrence took place.

3.3 Section 81 — Electronic Gazette

The same presumption extends to the Gazette in electronic or digital form, provided it is kept substantially in the form required by law and produced from proper custody. The provision recognises that official publication is now electronic, and it should be read with Section 57, under which an electronic record from proper custody is primary evidence unless disputed.

3.4 Section 82 — Government maps and plans

The court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

The proviso is the operative part and is regularly overlooked. A survey map or a Government plan carries the presumption; a site plan prepared for the litigation does not, and its accuracy must be proved by the person who prepared it. The distinction is between a document made in the ordinary course of official business and one made because there is a dispute.

3.5 Section 83 — Books of law and reports of decisions

The court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the courts of such country.

This provision does the work that permits foreign law to be proved at all. Foreign law is a question of fact and must be pleaded and proved; Section 32 makes official publications of the foreign statute and authorised reports of its rulings relevant, and Section 83 supplies the presumption that such a book is what it purports to be. Together with expert opinion under Section 39(1), these are the routes.

3.6 Section 84 — Powers of attorney

The court shall presume that every document purporting to be a power-of-attorney, and to have been executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

The presumption attaches only where the instrument was executed before and authenticated by one of the named functionaries. A power of attorney executed privately carries no presumption and must be proved in the ordinary way.

4. Sections 85 to 87 — Electronic Agreements and Signatures

These three correspond to Sections 85A, 85B and 85C of the Indian Evidence Act and are carried forward unchanged.

Section 86 contains two distinct presumptions, and the first is easily missed. The presumption about a secure record is one of integrity — that the record has not been altered since the secure status attached. There is no comparable presumption for paper documents anywhere in the Adhiniyam, and it is the practical superiority of properly executed electronic instruments over paper ones.

The presumption about a secure signature is one of intention — that it was affixed by the subscriber with the intention of signing or approving. This forecloses the argument that a signature was applied inadvertently or by an automated process without assent.

5. Sections 88 to 90 — Three Discretionary Presumptions

5.1 Section 88 — Foreign judicial records

The court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India, or of Her Majesty's dominions, is genuine and accurate, if the document purports to be certified in the manner commonly in use in that country for the certification of copies of judicial records.

The provision operates alongside Section 77(f), which prescribes how foreign public documents generally are proved — a copy certified by the legal keeper, a notarial or consular certificate, and proof of the character of the document under the foreign law. Section 88 provides a lighter route for judicial records specifically, but it is a may presume provision and the court retains the discretion to call for proof.

5.2 Section 89 — Books, maps and charts

The court may presume that any book to which it may refer for information on matters of public or general interest, and any published map or chart, the statements in which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published.

The presumption is confined to authorship, time and place of publication. It does not presume that the statements in the book are true. A standard work of reference is presumed to be what it purports to be; whether what it says is correct is a separate matter.

5.3 Section 90 — Electronic messages

The section presumes transmission integrity — that the message was not altered in the course of passing through the server.

The second limb is unusual in a presumption provision and is the most important thing in it: it is a statutory instruction not to presume something. The court shall not presume who sent the message. This is the clearest acknowledgment anywhere in the Adhiniyam of the attribution problem, and it means that in every case founded on an electronic communication the sender must be established by ordinary evidence — exclusive control of the account, contents known only to him, conduct, corroborative records, admission.

6. Section 91 — Document Not Produced After Notice

This provision is easily overlooked and is a considerable practical weapon. A party who serves a notice to produce under Section 64 and receives nothing gains, by force of Section 91, a mandatory presumption that the document was attested, stamped and executed as the law requires.

The value of this lies in what it dispenses with. A party relying on an unproduced attested document would otherwise have to grapple with Section 67 and the requirement of calling an attesting witness; he would have to address the stamp objection; and he would have to establish due execution. Section 91 presumes all three.

It should be pressed together with the other consequences of non-production. Ground (a) of Section 60 makes secondary evidence of the contents admissible. Illustration (g) to Section 119 permits the inference that the withheld evidence would have been unfavourable. And Section 167 shuts the withholding party out from using the document later without consent or leave.

7. Sections 92 and 93 — Old Documents

Both are may presume provisions, so the court retains a discretion, and both are conditional on proper custody — which is explained in the Explanation to Section 92 as custody in the place in which, and under the care of the person with whom, the document would naturally be, though no custody is improper if its legitimate origin is proved or the circumstances render it probable.

Section 92 is indispensable in title and pedigree litigation, where every executant and attestor of the documents relied upon died long ago and execution could not otherwise be proved at all. It works together with Section 68, which permits proof by establishing that the attestation and the executant's signature are in their respective handwritings.

The difference in period between the two sections is deliberate. A paper document becomes unprovable when its executants and attestors die, which takes decades. An electronic record becomes unprovable far faster — keys expire, certificates lapse, systems are replaced, providers close, and the persons who administered them move on. Five years is a realistic estimate of how long the ordinary means of proof survive.

8. Common Features

Four things are true of every presumption in this block and are worth extracting.

Each requires a foundational fact. No presumption arises until something is proved — that the copy is in the prescribed form, that the document is thirty years old, that it came from proper custody, that a notice was served, that the signature was secure. A party who invokes a presumption without establishing its foundation has gained nothing.

Proper custody recurs. Sections 80, 81, 92 and 93 all require it, and the Explanation to Section 92 supplies the meaning for the block: custody in the place in which, and under the care of the person with whom, the document would naturally be.

Genuineness is not truth. Every presumption in this block goes to the authenticity of the document — that it is what it purports to be, that the signature is what it purports to be, that the officer held the office he claims. None presumes that the statements in the document are true. That question is governed by the rules about hearsay and its exceptions, principally Section 29 for entries in public records.

The obligatory presumptions are rebuttable. Not one of the sixteen is a conclusive-proof provision. Under Section 2(1)(l), a shall-presume fact stands unless and until it is disproved, and the party against whom it operates may displace it — though he must disprove rather than merely doubt.

9. Practical Points

1. Check the grade. Eleven of the sixteen are shall-presume; five — Sections 88, 89, 90, 92 and 93 — are may-presume, and for those the court must be persuaded to draw the inference.
2. Establish the foundation expressly in evidence, particularly proper custody, which is a question of fact and is regularly left unproved.
3. Check the form of a certified copy against Section 75 before relying on Section 78.
4. Distinguish a Government map from a map made for the case. The proviso to Section 82 withholds the presumption from the second.
5. Serve a notice to produce, and press Section 91 alongside ground (a) of Section 60, Illustration (g) to Section 119 and Section 167.
6. Establish that an electronic signature was secure before relying on Sections 86 and 87.
7. Do not rely on Section 92 for a will, and remember that Section 90 forbids any presumption as to who sent a message.
8. Remember that none of these presumptions goes to the truth of the contents.

10. The Position Stated Shortly

1. Sixteen sections, eleven obligatory and five discretionary, and none conclusive.
2. Section 78 is conditional on the prescribed form, and presumes genuineness and the officer's official character, not the correctness of the entry.
3. Section 79 presumes that a recorded statement or confession was duly taken, which matters for statements recorded by a Magistrate.
4. Section 82 withholds the presumption from maps made for the purposes of the cause.
5. Section 86 presumes integrity as well as intention, and has no counterpart for paper documents.
6. Section 90 forbids any presumption as to the sender, which is the statutory face of the attribution problem.
7. Section 91 presumes due attestation, stamping and execution of a document not produced after notice, and is badly under-used.
8. Sections 92 and 93 require proper custody, are discretionary, and Section 92 does not extend to a will.

11. Related Topics and Provisions