Report No. 185
Section 57
This section refers to 'facts of which the Court must take judicial notice'.
This section has 13 clauses and is lengthy and we do not propose to extract the entire section. Thereafter there are two additional paragraphs.
In the 69th Report clause (1) of Section 57 was taken up separately and clauses (2) to (6) of Section 57 were taken up together, clause (7) of section 57 was taken separately, clauses (8) to (13) were taken up together. Then the two additional paragraphs were taken up separately.
We shall therefore, take up the discussion on the same lines.
Clause (1) of Section 57:
It says that, 'All laws in force in the territory of India have to be taken judicial notice of'.
We find that in Burma Section 57(1) has been amended as follows:
"(1) All laws, or rules having the force of laws, now or heretofore in force or hereafter to be in force, in any part of Burma or India or Pakistan"
Article 13(3)(a) of the Constitution includes, within the meaning of the law 'laws in force', ordinance, order, bye-law, rules, regulation, notification, custom or usage having in the territory of India the force of law and Article 310 13(3)(b) says it includes laws passed by the legislature or other competent authority in the territory of India.
The words 'laws in force' are also defined in Article 372 of the Constitution of India.
Article 366 (10) says 'existing law' means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of the Constitution.
Section 3(29) of the General Clauses Act, 1897 defines 'Indian Law' as including Act, Ordinance, Regulation, Rule, Order, Bye-law or other instrument have force of law.
In Edward Mills Ltd. v. State of Ajmer AIR 1955 SC 25, interpreting the words 'law in force', it was held (reference to Act 366(10) and 372) that the said Articles are wide enough to include not merely a legislative enactment but also any regulation or order which has force of law. This view was affirmed in later cases by the Supreme Court of India.
Question arises as to whether the courts can take judicial notice of notifications, bye-laws, rules of business of legislature etc. or whether they have to be proved by the party relying on them or should be ascertained by the court itself. An executive notification in a Gazette (not issued under any 'particular statute') is not law as held in State v. Gopal Singh AIR 1956 MB 138 (FB) and has to be proved.
Rules of Hindu Law, it was held, could be gathered from books, including the opinion of pundits (see Bhagwan v. B) (ILR 21 All 423), Collector of Madras v. Muthu Ramalinga 12 Moores' Indian Appeals 397 but not Mohammedan ecclesiastical law (R. v. Ramzan) (7 All 461).
The problem indeed arises as to the extent of duty of the court as to proof of notifications, bye-laws etc. made under statutory power.
After referring to some case law, the 69th report suggested clarificatory Explanations below clause (1) of Section 57 as follows: (see para 21.42)
"Explanation I: Where, by virtue of this section, the Court is bound to take judicial notice, and the question relates to the existence, extent, commencement, of the terms of a statutory instrument, the Court shall, for the purpose of deciding the question, resort for aid to appropriate books or documents of reference, if such books or documents are readily available, before calling upon the party concerned to produce such books or documents.
Explanation II: 'Statutory instrument' means a rule, notification, bye-law, order, scheme, or other instrument made under an enactment."
We agree that the two Explanations be added below clause (1) of Section 57 as follows:
"Explanation I:-Where, by virtue of this section, the Court is bound to take judicial notice, and the question relates to the existence, extent, commencement of the terms of a statutory instrument, the Court shall, for the purpose of deciding the question, resort for its aid to appropriate books or documents of reference, if such books or documents are readily available, before calling upon the party concerned to produce such books or documents.
Explanation II:-'Statutory instrument' means a rule, notification, bye- law, order, scheme, or other instrument made under an enactment;"
Clauses (2) to (6) of section 57:
These clauses contain a large number of items of which the court shall take judicial notice of such as law, articles of war, Proceedings of Parliament, etc.
Now clause (2) of 57 refers to all Acts passed by the Parliament of UK. It was suggested in the 69th report in para 21.43 that this clause should be confined to UK Acts passed before 15.8.1947, in view of what we have said under section 37, relating to proof of foreign law.
Similarly, it was pointed out in para 21.45 of the 69th Report, that in clause (4) of section 57 reference to proceedings to UK Parliament should be confined to proceedings before 15.8.1947.
Likewise, clause (5) of section 57 which refers to accession in UK, should be confined to the power before 15.8.1947.
Clause (6) of Section 57 refers to seals of English court and other matters relating to UK. It was suggested in para 21.48, these should be limited to the period prior to 15.8.1947.
In the light of the above, we agree with the 69th Report that clauses (2),(4), (5) and (6) of section 57 be revised as follows:-
"(2) All public Acts passed by Parliament of the United Kingdom before the fifteenth day of August 1947 and local and personal Acts directed by Parliament of the United Kingdom before that date, to be judicially noticed;"
(4) The course of proceeding of Parliament of the United Kingdom before the fifteenth day of August 1947, of the Constituent Assembly of India, of Parliament and of legislatures established under any laws for the time being in force in a Province before the said date or in the States;
(5) The accession and sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland in relation to any act done before the fifteenth day of August 1947;
(6) The following seals, that is to say,
(a) All seals of which English Court take judicial notice in relation to any act done before the fifteenth day of August 1947:
(b) The seals of all Courts in India;
(c) Seals of all Courts out of India, established by the authority of the Central Government;
(d) Seals of law Courts established by the authority of the Crown Representative in relation to any act done before the fifteenth day of August 1947.
(e) Seals of Courts of Admiralty and Maritime Jurisdiction and Notaries Public;and
(f) All seals which any person is authorized to use by an Act of Parliament of the United Kingdom in relation to any act done before the fifteenth day of August 1947 or by the Constitution of India or an Act or Regulation having the force of law in India;"
Clause (7) of Section 57 :
As clause (7) of section 57 did not refer to offices held in India, it was recommended in the 69th Report (para 21.50), that the matter should be added and clause (7) of section 57 be revised as follows to which we agree:
"(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in India or any State, if the fact of their appointment to such office is notified in any Official Gazette;"
Clauses (8) to (13) of Section 57:
We agree with the 69th Report that no amendment is called for in these clauses.
Second Para of Section 57: This para is immediately below clause (13) of Section 57.
This para refers to the powers of the court to refer to appropriate sources for reference and does not require any amendment. We agree with para 21.53 of the 69th Report.
Third Para of Section 57: This para is immediately below the para mentioned above.
This para confers a discretion upon the court to refuse to take judicial notice in the absence of sufficient material. We agree that this paragraph does not also call for any amendment.
Proposed Section 57A:
In Chapter 22 of the 69th Report, the Commission proposed an important provision, Section 57A, concerning 'Judicial Notice' of 'International facts'. The question relates "international facts" and concerns (a) recognition of a State and (b) recognition of a head of a State.
It was pointed out that section 87A (2) of the Code of Civil Procedure, 1908 contains a provision in this behalf but that provision pertains only to civil proceedings. It was suggested (see para 22.13) that such a provision is necessary for purposes of criminal proceedings as well and that section 87A (2) be deleted and shifted to the Evidence Act so that a single provision can It was pointed out that section 87A (2) of the Code of Civil Procedure, 1908 contains a provision in this behalf but that provision pertains only to civil proceedings. It was suggested (see para 22.13) that such a provision is necessary for purposes of criminal proceedings as well and that section 87A (2) be deleted and shifted to the Evidence Act so that a single provision can apply to criminal proceedings as well as to civil proceedings.
Section 87A of the C.P.C. is as follows:
"Sec.87A: Definitions of "foreign State" and "Ruler": (1) ........... .............. .............. ............
(2): Every court shall take judicial notice of the fac.-
(a) that a State has or has not been recognized by the Central Government;
(b) that a person has or has not been recognized by the Central Government to be the head of a State."
This section is in addition to section 6 of the Foreign Jurisdiction Act 1947 which also deals with 'judicial notice' of certain other international facts and reads as follows:
"Section 6: If in any proceeding, civil or criminal, in a court established in India or by the authority of the Central Government outside India, any question arises as to the existence or extent of any foreign jurisdiction of the Central Government, the Secretary to the Government of India in its appropriate department, shall, on the application of the court, send to the court, the decision of the Central Government on the question, and that decision shall for the purpose of the proceeding, be final.
(2) The court shall send to the said Secretary, in a document under the seal of the court or signed by a judge of the court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be returned to the court by the Secretary and those answers shall, on production thereof, be conclusive evidence of the matters therein contained."
The Supreme Court had referred to section 6 of the Foreign Jurisdiction Act 1947 in Hardeodas Jagannath v. State of Assam, AIR 1970 SC 724 in relation to the provincial jurisdiction of the Dominion of India. The matter arose under the Assam Sales Tax Act 1947. Again, in N. Masthan Sahib v. Chief Commissioner, AIR 1962 SC 797, the same Act was referred to in dealing with the question as to whether Pondicherry was an acquired territory.
Section 9 of the Diplomatic Relations Act, 1972 is also relevant and deals with diplomatic immunity of a person. But, presently, we are concerned with the 'status' of a country, whether it is recognised or not and of a person, as to whether he is the head of a State or not.
Several of these aspects are reference to in Phipson (15th Edn., 1999, para 2.14) under the heading 'Constitutional, political and administrative matters of which judicial notice is taken'.
We agree with the recommendations in para 22.13 of the 69th Report for deleting section 87A(2) from the Code of Civil Procedure, 1908 and omitting the figure and bracket '(1)' in Section 87 and for insertion of section 57A in the Evidence Act, by the following method: Sub-section (1) of proposed Section 57A will cover the aspects contained in Section 87A(2) of the CPC. (The 69th Report dealt only with this aspect in Section 57A as proposed by them in para 22.13).
But, it is also necessary to bring into Section 57A, the procedure for grant of a certificate as contained in section 6(1) and (2) of the Foreign Jurisdiction Act, 1947. We propose to bring in that procedure by further adding sub-sections (2) and (3) in Section 57A. (This aspect was not considered in the 69th Report)
In the result, we accept the 69th Report and add something more and propose insertion of Section 57A as follows and Section 87A(2) has to be deleted and the number (1) in the opening part of Section 87A has also to be deleted.
" 57A. Court to take judicial notice of certain matters relating to foreign states.- (1) Every Court shall take judicial notice of the fac.-
(a) that a State has or has not been recognized by the Central Government;
(b) that a person has or has not been recognized by the Central Government as head of a State.
(2) If, in any Court, questions with reference to sub-section (1) arise, the Secretary to the Government of India in the appropriate department shall, on the application of the Court, forward to the Court, the decision of the Central Government on the question, and that decision shall, for the purpose of the proceeding, be final.
(3) The Court shall forward to the said Secretary, in a document under the seal of the Court and signed by a Judge of the Court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be returned to the Court by that Secretary and those answers shall, on production thereof, be conclusive evidence of the matters therein contained."
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