Report No. 185
Section 45B proposed by the 69th Report
The 69th Report contains a separate chapter (ch. 18) on the question of expert opinion on 'Foreign Law' and referred to the procedure in UK, USA etc. and to Indian law e.g., section 26 of the Negotiable Instruments Act, section 11 of the Contract Act relating to capacity, the constitutionality of foreign law, and specially to the British statutes applicable to India (sec. 5, Report of the Law Commission of India, page 45, entry 55, and the British States (Application to India) Repeal Act, 1900 (Act 58 of 1960). The 69th Report stated:
"whether they (British statutes) should be incorporated in the Evidence Act or elsewhere, is a matter of detail, which we leave to the draftsman"
The Recommendation for insertion of section 45B in the 69th Report (see p. 348-349) is as follows: (18.33, though para number not given)
"In the light of the above discussion, we recommend
(a) insertion of a provision requiring notice to be given where a party in a civil case desires to raise a question of foreign law;
(b) incorporation of the substance of the British statutes of 1859 and 1861 into our statute law;
(c) insertion of a provision enabling the court to look at the relevant material relating to foreign law, where it considers such a course necessary in the interests of justice."
The Report stated that the second point (b) mentioned above maybe preferably inserted in a separate law. It was suggested that the first and third (i.e. (a) or (c)) could be inserted in the Evidence Act, as section 45B, somewhat on the following lines:
"(1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country, shall give notice in his pleadings or other reasonable notice;
(2) the court, in determining a question of foreign law, in any case, may after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decisions of the court, shall be treated as a decision on a question of law."
Our Recommendation on section 45B & British statutes of 1859, 1861:
So far as the above recommendation for insertion of section 45B with different subsections, we do not want to repeat the reasons given in the 69th Report but we wholeheartedly support the recommendation.
So far as the recommendation for making a separate Act incorporating the substance of British statutes of 1859 and 1861 are concerned, we are of the view that it is unnecessary.
We recommend that the proposed section 45B should be as follows:
"45B. Procedure to prove foreign law and Court's power.- (1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.
(2) The Court, in determining a question of foreign law, in any particular case may, after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decision of the Court shall be treated as a decision on a question of law".