Report No. 69
36.12. Section 78(3)-Recommendation.-
So much as regards the proof of legislation. We now proceed to the next clause of section 78. Clause (3) provides for the proof of proclamations, orders and regulations issued by Her Majesty or by the Privy Council or by any department of Her Majesty's Government. This clause should be confined to proclamations etc. issued before the 15th August, 1947, in view of the constitutional changes that have taken place. We recommend that section 78(3) should be amended, by inserting, before the words "proclamations, orders and regulations issued by Her Majesty or by the Privy Council or, by any department of Her Majesty's Government", the words and figures "as respects the period before the 15th day of August, 1947".
36.13. Section 78(3)-British statutes regarding orders of Her Majesty or departments of the U.K. Government.-
At this stage, we may refer to two Acts, of the U.K. Parliament, the Documentary Evidence Act, 18681 and the Documentary Evidence Act, 1882,2 relating to certain official documents (now repealed in their application to India). The Act of 1868 provides that the prima facie evidence of any proclamation, order or regulation issued by Her Majesty or by the Privy Council or under the authority of any department or officer mentioned in the Schedule to the Act of 1868 may be given by providing a copy of the gazette or a copy provided by the Government printer etc. The Act of 1882 supplements the Act of 1868, by providing that provisions (of the 1868 Act) applicable to copies printed by the Government printer or under Her Majesty's authority etc. shall apply also to documents printed under the superintendence or authority of Her Majesty's Stationery Office.
1. The Documentary Evidence Act, 1868 (31 & 32 Vict., Ch. 37).
2. The Documentary Evidence Act, 1882 (45 & 46 Vict., Ch. 9).
36.14. Recommendation in 5th Report.-
A recommendation was made in the Fifth Report of the Law Commission,1 to the effect that if these provisions are to be retained, they may be included in the Evidence Act at the proper place. Subsequent to that Report, the two British Acts in question have been repealed2 in their application to India.
1. Fifth Report (British Statutes applicable to India) entry 81.
2. The British Statute (Application to India) Repeal Act, 1960 (57 of 1960).
36.15. It does not appear to be necessary, in the present constitutional position, to make any provision on the subject. So far as orders and proclamations issued before the 15th August, 1947, are concerned, the question may not arise frequently, and, in any case, section 78(3) of the Evidence Act will take care of them. Now that the Acts in question have been repealed, we may leave the matter at that. For all practical purposes, section 78(4) will suffice.
36.16. Section 78(4).-
Under section 78, clause (4), the act of the executive or the proceedings of the legislature of a foreign country may be proved by journals published by their authority or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign or by a recognition thereof in some Central Act. We have no comments on this clause.
36.17. Section 78(5).-
Section 78, clause (5), deals with proof of the proceedings of a municipal body in a State. Two modes of proof are provided, namely-(i) a copy of such proceedings certified by the legal keeper thereof, and (ii) a printed book purporting to be published by the authority of such body. Certified copies would even otherwise be admissible under section 77 in proof of public documents, and there can be hardly any doubt that the proceedings of a municipal body in a State, in so far as they form the acts or records of the acts of that body within the meaning of section 74(1), are public documents. Doubts might arise, however, in respect of other proceedings of the municipal bodies. Clause (5) avoids all these controversies.
36.18. This is the first point that illustrates the utility of the clause. Secondly, 'certified copies', in relation to public documents in general, (as defined in section 76), bring in the requirement of a right to inspect. Clause (5) of section 78 avoids that complication also. In other words, whether or not there is a right to inspect, and whether or not the proceedings fall within section 74(1), a copy of the proceedings of a municipal body in a State, certified by the legal keeper thereof, is one mode of proof recognised in respect of those proceedings.
36.19. No changes are needed in the clause. No doubt, the clause is somewhat ill-placed, being sandwiched between clauses which deal with foreign documents. However, we do not think it convenient to disturb the structure of the section.
36.20. Section 78(6).-
Finally, clause (6) of section 78 deals with the proof of public documents of any other class in a foreign country. In this case, the "original" is specifically mentioned. Besides the original, the clause allows proof by a certified copy. But the copy must be certified by the legal keeper thereof, and must also bear a certificate under the seal of a notary public or of an Indian consular or Diplomatic officer, where the copy is duly certified by the officer having legal custody of the original. In addition, there must be "proof of the character of the documents according to the law of the foreign country".1
1. Fast India Trading Company v. Badat & Co., AIR 1959 Born 414 (419), para. 12
36.21. Recommendation to split up clause (6).-
It is the last mentioned requirement which raises one query, namely, what is the precise purport of this requirement? One view could be that irrespective of whether the document produced is the original or a certified copy (bearing the necessary certificate), this clause contemplates that there must be proof of the character of the document according to the foreign law. How-ever, it is possible to adopt a different construction, by holding that the requirement of the proof of character is applicable only to the certified copy, in order to show that it was a public document. As printed in the Act, the clause is capable of either construction. If the latter construction is to be adopted-and that appears to be the construction intended,-it would be necessary to split up the clause in a suitable manner. We recommend that it should he so split up.
36.22. Revised section 78(6).-
Revised section 78(6) will read as under:-"(6). Public document of any other class in a foreign country,
(a) by the original, or
(b) by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consular or diplomatic officer, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."