Report No. 69
IX. Section 38
While section 37 was concerned with published legislation and Governmental acts, section 38 is concerned with the relevancy of statements as to "a law"-i.e., any law, contained in certain officially published law-books. Under the section, 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 in a book purporting to be a report of such rulings, is relevant.
14.45. Amendment needed as to Indian law.-
So far as laws of foreign countries are concerned, the section needs no comments. But, so far as Indian law is concerned, the section, in our opinion, is not appropriate. We shall presently set out our reasons for this comment.
14.46. Indian law not a matter of evidence.-
The first observation which we would like to make is, that a question of Indian law is not a matter of evidence, and therefore the terminology of "relevant fact" is not appropriate for such questions. It is well established that evidence cannot be given of the general law, although evidence can be given of customs which derogate from the general law. Even if it be assumed, for the sake of argument, that what has been stated officially on a matter of law can be used for persuading the court, it is obvious that official expression of views on a matter of Indian law can have no binding effect.
14.47. Foreign law is a question of fact, and therefore, a matter for evidence. We are not, at the moment, concerned with the mechanics of proof of foreign law, nor with the question as to the materials to be used for proof of foreign law.1 But it cannot be denied that a question of Indian law is a question to be decided by the judge, "Jura novit curia" (The Judge knows the law).
1. See Nussbaum The Problem of Proving Foreign Law, 50 Yale I.J.
14.48. Duty of judge in deciding questions of the law.-
For deciding questions of Indian law, the Judge must refer to the materials that are recognised in the Indian legal system as the source of law. These materials-except in the case of custom-cannot be the subject-matter of proof. A book published under official authority is not, according to the Indian legal system, a source of law.
14.49. Judge and Jury.-
A question of law is, thus, for the judge and is not subject to evidence. This is precisely the reasoning on which juries in England, which are final judges of fact, are not empowered to determine questions of law. The judge sums up the evidence, spells out the main issues and explains the relevant rules of law which the jury is to apply. In fact, in India, the Code of Criminal Procedure1 made express provision for such a demarcation of the functions of the judge and the jury, the former being exclusively vested with jurisdiction to determine questions of law.
1. Section 292, Code of Criminal Procedure, 1898 (repealed).
14.50. Generally speaking, matters of law are determinable by the Judge, and matters of fact by the jury.1 According to Phipson2in English Courts, although the existence of English law is a question of law to be determined by authorities and argument, the existence of Scots, colonial or foreign law is treated as a question of fact, to be determined by evidence.3
1. Mechanical Inventions v. Austin, 1935 AC 346.
2. Phipson Evidence, (1963), para. 29.
3. See also Hartman v. Kong, 50 Times Law Reports 114.
14.51. Judicial evidence not including questions of law.-
In this connection, we may also refer to the analysis of "judicial evidence" as given by Best. HE says1-
"'judicial evidence' may be defined as the evidence received by courts of justice in proof or dis-proof of facts, the existence of which comes in question before them. By fact, here, must be understood the res gestae of some suit, of other matters, to which when ascertained, the law is to be applied; for although, in logical accuracy, the existence or non-existence of law is question of fact, it is rarely spoken of as such, either by jurists of practitioners. By 'law' here, we mean the general law of each country, which its tribunals are bound to know without proof; for they are not bound, at least it general, to take judicial cognisance of local customs, or the laws of foreign nations-the existence of both of which must be proved as facts."2
Best has pointed out that courts are bound to know the 'general law' without proof.
1. Best Principles of Evidence, (1922), p. 22, para. 33
2. Emphasis added.
14.52. Duty of the Court to decide questions of law.-
Secondly, as was pointed out in Aziz Banu's case, 1925 ILR 47 All 823 (835) (Sulaiman, J.),-whose observations were approved in a later case1 by the Privy Council-it is the duty of the courts themselves to find the law of the land and apply it, and not to depend on the opinion of the witnesses, however reliable they may be. Foreign law, on the other hand, is a question of fact, with which the courts in India are not supposed to be conversant.
1. Shahid Ganj case, infra.
14.53. Judicial notice to be taken of Indian law.-
We may also point out, in this context,1 that under section 57(1), a court is bound to take judicial notice of all laws in force in the territory of India2. The Judge can on matters of which he can take judicial notice; consult certain materials. But an Indian law cannot be the subject-matter of "evidence". Expert evidence may be given3 of foreign law, but not of Indian law.
1. See S.P.P. v. Thipayya, AIR 1949 Mad 459 (460) (Subba Rao, J.).
2. (a) Mazhar Ali, AIR 1965 Pat 489 (490), para. 3.
3 Section 45.
14.54. We may add that for some time, there was a practice of consulting pundits in matters relating to Hindu law. But this practice was discontinued long ago, and has never been revived. In fact, when a particular subordinate court resorted to any such practice, the higher courts came down upon it, and this was for the reason that Hindu law, being the law of the country, could not be a matter of evidence or of expert opinion.
14.55. In the Shahid Ganj case,1Sir George Rankin, sitting in the Judicial Committee of the Privy Council, observed-
"But it would not be tolerable that a Hindu or a Muslim in a British Indian Court should be put to the expense of proving by expert witnesses the legal principles applicable to his case and it would introduce great confusion into the practice of the Courts if decisions upon Hindu or Muslim law were to depend on the evidence given in a particular case, the credibility of the expert witnesses and so forth."
1. Shahid Ganj v. S.G.P. Committee, AIR 1940 PC 116 (120).
14.56. Rulings of Indian Courts.-
Thirdly, coming to the latter half of the section, we may state that so far as the rulings of Indian Courts are concerned, that, again, is a matter not of evidence. It is a question of authority. The Indian Law Reports Act1, section 3, provides that no court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case decided by any High Court for any State, other than a report published under the authority of any State Government. We are not, in the present context, concerned with non-official reports. But the use of official Indian law Reports is impliedly dealt with by this provision in the Indian Law Reports Act-if a provision were at all needed on the subject.
1. Section 3, Indian Law Reports Act, 1875 (18 of 1875).
14.57. Calcutta case.-
The view taken above may be regarded as obvious; but it appears that the proper scope of the section requires to be clarified. In a Calcutta case,1 for example, the question arose whether a newspaper report of a judgment of the Supreme Court could be relied upon for deciding a point of law. The High Court held that the report would not be relevant under section 38, because the newspaper could not be regarded as "a book published under the authority of Government". However, the High Court relied on it on the basis of a precedent, in which a report in the "Statesman" has been relied upon in an earlier case.
1. State v. Sardar Bahadur, AIR 1969 Cal 451 (457).
14.58. It should be pointed out, that in the Calcutta case cited above, the question whether section 38 is appropriate in relation to Indian law, was not examined. But there is a reference to section 38 in the judgment.
In the circumstances, a clear statement of the scope of the section is needed, and it is desirable that the section is narrowed down, so as to exclude Indian law from its application. To achieve this object, we recommend that in section 38, after the words "any country", the words "other than India" should be added.