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Report No. 185

Section 38

Section 38.- which is the last one under the heading 'statements made under special circumstances', refers to 'relevancy of statements as to any law contained in law books'. It reads as follows:

"Section. 38: When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant."

In the 69th Report, a pertinent point was raised with reference to this section, namely, that so far as the proof as to 'law of any country', the Court may require proof in the manner mentioned in this section (or by calling an expert) but that so far as the law in force in India is concerned, that is a matter which the Court is bound to take 'judicial notice' of and need not be proved. The 69th Report pointed out that Indian law cannot be a matter for evidence, that it is the duty of the Court to decide the question according to the Indian legal system and that cannot be a matter of proof, such as by expert evidence or under this section. Best on 'Evidence' was quoted to say that courts are bound to know the 'general law' of the land, without proof. (Section 57 also speaks of facts which a court is bound to take judicial notice of.)

So far as proof of rulings of Indian courts are concerned, it is again not a matter of evidence. It is a question of authority and under the Indian Law Reports Act (Act 18 of 1875), Section 3 provides that a court is not bound to hear a citation of a legal report "other than a report published under the authority of any State Government". (May be, the court may look into private law reports though not bound to do so.)

In para 14.59 of the 69th Report, it was recommended that Section 38 is to be 'narrowed down, so as to exclude Indian law from its application' and that to achieve this object, after the words 'any country', the words 'other than India' should be added. Sarkar (15th Ed, 1999, p. 809) also refers to this anomaly, namely, that the latter part of Section 38 is inconsistent with Section 3 of the Indian Law Reports Act.

Vepa P. Sarathi, in his 'Law of Evidence' (5th Ed, 2002, p.169) says that 'Indian courts take judicial notice of Indian law, but with respect to foreign law, it must be proved before the court under this section or calling an expert'.

Phipson (15th Ed, 1999, para 2.11) states that courts in England take judicial notice of every branch of unwritten law (i.e. apart from statutory law) obtaining in England and Ireland (Section 19 of Supreme Court Act, 1981). He says:

"Thus, if in a common law court, points of equity or of parliamentary, ecclesiastical or Admiralty law arise, even before the Judicature Acts, they had to be determined not by calling experts, but by the court itself, within its own knowledge or by inquiry, or by hearing authority and argument. Scots, colonial or foreign law, however, are not judicially noticed but must be proved as a fact by skilled witnesses or by appropriate reference to the courts of those countries, except Scots law and the law of Northern Ireland in the House of Lords, or colonial law in the Privy Council, when what was a question of fact in the court below to be proved by evidence becomes a question of law to be judicially noticed."

However, in England, the law of the European Economic Community is an exception and is to be taken judicial notice of and is not to be treated as 'foreign law' because of Section 3 Sch. 11 Part I of the European Communities Act, 1972. Similarly, the European Judgments Convention, 1968 and the 1971 Protocol and the Accession Convention as well as the decisions of the European Court of Justice, relating to these Conventions, are taken judicial notice of because of Section 2(1) and 3 of the Civil Jurisdiction and Judgments Act, 1982.

Section 4(2) of the English Civil Evidence Act, 1972 refers to 'questions as to the law of any country or territory outside the United Kingdom'.

We, accordingly, agree with the recommendation in para 14.59 of the 69th Report but instead of the words 'other than India', the words 'outside India' are appropriate (as in the English Act of 1972) and have to be added after the words 'any country'.



Review of the Indian Evidence Act, 1872 Back




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