Who is eligible to receive bonus and what is the minimum bonus payable?

(a)
Every employee who draws wages not exceeding the amount notified by the appropriate Government and who has worked for at least thirty days in an accounting year is entitled to receive an annual minimum bonus from the employer.

(b)
The minimum bonus shall be eight and one-third per cent of the wages earned by the employee or one hundred rupees, whichever is higher, irrespective of whether the employer has any allocable surplus during the previous accounting year.

How is bonus calculated when an employee’s wages exceed the notified wage limit?

Where an employee’s wages exceed the amount per month notified by the appropriate Government, the bonus payable shall be calculated as if the employee’s wages were equal to the notified amount or the minimum wage fixed by the appropriate Government, whichever is higher.

What happens when the allocable surplus exceeds the minimum bonus payable?

If, for any accounting year, the allocable surplus exceeds the amount of minimum bonus payable, the employer shall pay bonus in proportion to the wages earned by the employee during that accounting year, subject to a maximum limit of twenty per cent of such wages.

How is allocable surplus computed for the purpose of bonus?

While computing the allocable surplus, any amount set on or set off shall be taken into account in accordance with the applicable provisions governing set on and set off.

Can employees demand bonus in excess of the minimum bonus based on production or productivity?

Yes. Any demand for bonus exceeding the minimum bonus, whether based on production or productivity for the accounting year, shall be determined by an agreement or settlement between the employer and the employees. However, the total bonus, including the annual minimum bonus, shall not exceed twenty per cent of the wages earned by the employee in that accounting year.

How is bonus payable during the first five accounting years of a new establishment?

In the first five accounting years after the employer begins selling goods produced or manufactured, or rendering services, bonus shall be payable only for those accounting years in which the employer derives profit from the establishment. The bonus shall be calculated in accordance with the applicable provisions, without applying the provisions relating to set on and set off.

How does the bonus calculation work in the sixth and seventh accounting years of a new establishment?

(a)
For the sixth and seventh accounting years, provisions relating to set on and set off shall apply with modifications.

(b)
For the sixth accounting year, set on or set off shall take into account the excess or deficiency of allocable surplus of the fifth and sixth accounting years.

(c)
For the seventh accounting year, set on or set off shall take into account the excess or deficiency of allocable surplus of the fifth, sixth and seventh accounting years, in the manner prescribed.

What rules apply from the eighth accounting year onwards?

From the eighth accounting year onwards, the provisions relating to set on and set off shall apply in the same manner as they apply to any other establishment.

When is an employer deemed to have derived profit for the purpose of bonus?

An employer shall not be deemed to have derived profit unless provision has been made for depreciation for that year and all arrears of depreciation and past losses of previous accounting years have been fully set off against the profits.

Is sale during trial production or prospecting stage considered for bonus eligibility?

No. Sale of goods produced during trial running of a factory or during the prospecting stage of a mine or oilfield shall not be considered. Any dispute regarding such production shall be decided by the appropriate Government after giving the parties a reasonable opportunity to be heard.

What happens if an employee has not worked for all working days in an accounting year?

If an employee has not worked for all working days in an accounting year, the minimum bonus shall be proportionately reduced, provided the minimum bonus is higher than eight and one-third per cent of the wages for the days actually worked.

Which days are treated as days worked for computing working days?

An employee is deemed to have worked on days when:

(a)
the employee was laid off under a lawful agreement or applicable law;

(b)
the employee was on leave with wages;

(c)
the employee was absent due to temporary disablement caused by an employment-related accident; and

(d)
the employee was on maternity leave with wages.

In which cases is an employee disqualified from receiving bonus?

An employee is disqualified from receiving bonus if dismissed for:

(a) fraud;

(b)
riotous or violent behaviour on the premises of the establishment;

(c)
theft, misappropriation or sabotage of the employer’s property; or

(d)
conviction for sexual harassment.

How are departments, undertakings and branches treated for bonus computation?

All departments, undertakings and branches of an establishment, whether located at the same place or different places, are treated as part of the same establishment for bonus computation. However, if separate balance sheets and profit and loss accounts are maintained for any department, undertaking or branch for a particular accounting year, it shall be treated as a separate establishment for that year, unless it was previously treated as part of the main establishment.

From what source is bonus paid?

Bonus shall be paid out of the allocable surplus, which shall be sixty per cent of the available surplus in the case of banking companies and sixty-seven per cent in the case of other establishments.

Can audited accounts be questioned while determining bonus?

Audited accounts of companies shall not normally be questioned.

What happens if there is a dispute regarding the quantum of bonus?

In case of a dispute regarding the quantum of bonus, the competent authority may require the employer to produce the balance sheet. However, information contained in the balance sheet shall not be disclosed without the employer’s consent.

How are gross profits computed?

Gross profits shall be computed in the manner prescribed by the Central Government, whether the establishment is a banking company or any other establishment.

How is available surplus calculated?

The available surplus for an accounting year is the gross profits after deducting prescribed prior charges. For accounting years after commencement of the Code, available surplus also includes the difference between the direct tax calculated on gross profits of the previous year and the direct tax calculated after deducting the bonus payable for that year.

What deductions are made from gross profits?

The following are deducted as prior charges:

(a) admissible depreciation;

(b)
direct taxes payable for the accounting year; and

(c)
any other prescribed sums.

How is direct tax payable by the employer calculated?

Direct tax is calculated at applicable rates, excluding past losses, carried-forward depreciation, export rebates, and most tax rebates or reliefs except those specifically permitted. Special rules apply to charitable institutions, individuals, Hindu Undivided Families, and employers earning export income.

What is meant by set on and set off of allocable surplus?

(a)
If allocable surplus exceeds the maximum bonus payable, the excess is carried forward as “set on” for up to four succeeding accounting years.

(b)
If allocable surplus is insufficient to pay minimum bonus, the deficiency is carried forward as “set off” for up to four succeeding accounting years.

(c)
The earliest carried forward amount is adjusted first.

Can customary or interim bonus be adjusted against statutory bonus?

Yes. Any customary bonus or advance payment of bonus made during the accounting year may be deducted from the bonus payable, and the employee is entitled only to the balance.

Can deductions be made from bonus for misconduct?

Yes. If an employee is found guilty of misconduct causing financial loss to the employer, the employer may deduct the amount of loss from the bonus payable for that accounting year.

What is the time limit for payment of bonus?

(a)
Bonus must be credited to the employee’s bank account within eight months from the close of the accounting year. The period may be extended by the appropriate Government, but not beyond two years in total.

(b)
Where a dispute is pending, bonus must be paid within one month from the date the award becomes enforceable or the settlement comes into operation. In disputes regarding higher rates, the minimum bonus must still be paid within eight months.

When do the above provisions apply to public sector establishments?

If a public sector establishment competes with a private sector establishment and earns at least twenty per cent of its gross income from such sale or services, the bonus provisions apply to it as they apply to private establishments. Otherwise, they do not apply.

To which employees do the above provisions not apply?

The above provisions do not apply to employees of specified institutions and establishments such as life insurance corporations, seamen, dock workers under regulated schemes, government departments, educational and charitable institutions not run for profit, the central banking authority, specified public sector financial institutions, inland water transport establishments operating through other countries, and other establishments exempted by notification.

What is the minimum employment threshold for application of the provisions?

Subject to exclusions, the above provisions apply to establishments in which twenty or more persons are employed or were employed on any day during an accounting year.

Therefore, the framework governing payment of bonus under the Code reflects a carefully structured approach aimed at protecting employees’ entitlements while accommodating the financial realities of establishments. By laying down clear rules on eligibility, calculation, set on and set off, adjustments and timely payment, the Code promotes transparency and predictability in bonus administration. Overall, the bonus regime under the Code strengthens industrial harmony by ensuring fair distribution of surplus, encouraging productivity and fostering a sense of shared growth between employers and employees.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Sharing the Surplus appeared first on Greater Kashmir.

In what modes can wages be paid to an employee?

Wages shall be paid in any of the following modes:

(a)
current coin, or

(b)
currency notes, or

(c)
by cheque, or

(d)
by crediting the wages in the bank account of the employee, or

(e)
by electronic mode.

However, the appropriate Government may, by notification, specify certain industrial or other establishments where the employer shall pay wages only by cheque or by crediting the wages in the employee’s bank account.

How is the wage period for employees to be fixed?

The employer shall fix the wage period for employees as one of the following:

(a) daily, or

(b) weekly, or

(c) fortnightly, or

(d) monthly.

No wage period shall exceed one month for any employee. Different wage periods may be fixed for different establishments.

What are the time limits for payment of wages to employees?

The employer shall pay wages as follows:

(a)
to daily-rated employees, at the end of the shift;

(b)
to weekly-rated employees, on the last working day of the week, before the weekly holiday;

(c)
to fortnightly-rated employees, before the end of the second day after the end of the fortnight;

(d)
to monthly-rated employees, before the expiry of the seventh day of the succeeding month.

What is the time limit for payment of wages when employment comes to an end?

Where an employee has been removed or dismissed from service or retrenched, or has resigned from service, or became unemployed due to closure of the establishment, the wages payable shall be paid within two working days of such removal, dismissal, retrenchment, resignation, or closure.

Can the Government prescribe a different time limit for payment of wages?

Yes. The appropriate Government may prescribe any other time limit for payment of wages if it considers such time limit reasonable, having regard to the circumstances under which the wages are to be paid.

Does this affect payment timelines under other laws?

No. Any time limit for payment of wages provided under any other law for the time being in force remains unaffected.

Are deductions from wages generally allowed?

No. There shall be no deductions from the wages of an employee except those authorised under the Code, notwithstanding anything contained in any other law.

What is deemed to be a deduction from wages?

Any payment made by an employee to the employer or his agent is deemed to be a deduction from wages. However, loss of wages resulting from withholding of increment or promotion (including stoppage of increment), reduction to a lower post or time-scale, or suspension, shall not be deemed to be a deduction if the employer’s provisions for such action satisfy the requirements notified by the appropriate Government.

For what purposes can deductions be made from wages?

Deductions may be made only for the following purposes:

(a)
fines imposed on the employee;

(b)
absence from duty;

(c)
damage to or loss of goods entrusted for custody, or loss of money for which the employee is required to account, where directly attributable to his neglect or default;

(d)
house accommodation supplied by the employer, Government, housing board, or other notified authority;

(e)
authorised amenities and services supplied by the employer, not exceeding their value (excluding tools and raw materials);

(f)
recovery of advances (including travel or conveyance advances) and interest, or adjustment of overpayment of wages;

(g)
recovery of loans from labour welfare funds and interest;

(h)
recovery of loans for house building or other approved purposes and interest;

(i)
deductions of income tax or other statutory levies, or deductions ordered by a court or competent authority;

(j)
subscriptions to and repayment of advances from social security funds or schemes, including provident fund, pension fund, or health insurance;

(k)
payments to cooperative societies subject to Government conditions;

(l)
deductions, with written authorisation, for trade union membership fees and contributions;

(m)
recovery of losses suffered by railway administration due to acceptance of counterfeit or forged currency;

(n)
recovery of railway losses due to failure to invoice, bill, collect, or account for charges or sale proceeds;

(o)
recovery of railway losses due to incorrect rebates or refunds attributable to employee neglect or default;

(p)
deductions, with written authorisation, for contribution to the Prime Minister’s National Relief Fund or any other notified fund.

Is there a limit on total deductions from wages?

Yes. Total deductions in any wage period shall not exceed fifty per cent of the wages.

What happens if deductions exceed fifty per cent of wages?

The excess amount may be recovered in such manner as may be prescribed.

Is the employee responsible if deducted amounts are not deposited by the employer?

No. If deductions are made but not deposited into the required trust, Government fund, or other account, the employee shall not be held responsible for the employer’s default.

When can fines be imposed on employees?

Fines may be imposed only for acts and omissions specified by the employer with prior approval of the appropriate Government or prescribed authority.

How must acts and omissions attracting fines be communicated?

A notice specifying such acts and omissions must be exhibited in the prescribed manner at the premises where employment is carried on.

Is an opportunity of hearing required before imposing a fine?

Yes. No fine shall be imposed unless the employee has been given an opportunity of showing cause, and fines must be imposed following the prescribed procedure.

What is the maximum fine that can be imposed?

The total fine in any wage period shall not exceed three per cent of the wages payable for that period.

Can fines be imposed on minors?

No. No fine shall be imposed on an employee below the age of fifteen years.

What are the time limits for recovery of fines?

No fine shall be recovered by instalments or after the expiry of ninety days from the day it was imposed.

How are fines to be recorded and used?

All fines and realisations must be recorded in a prescribed register and applied only for purposes beneficial to employees, as approved by the prescribed authority.

When can deductions be made for absence from duty?

Deductions may be made for absence from the place where the employee is required to work, for the whole or part of the period during which he was required to work.

How is the amount of deduction for absence calculated?

The deduction shall not exceed the proportion of wages corresponding to the period of absence. If ten or more employees act in concert and absent themselves without due notice and without reasonable cause, deductions may include wages up to eight days, subject to prescribed rules.

When is an employee deemed to be absent despite being present?

An employee is deemed absent if, though present at the workplace, he refuses to work due to a stay-in strike or for any other unreasonable cause.

What rules apply to deductions for damage or loss?

Such deductions shall not exceed the actual damage or loss caused by the employee’s negligence or default and shall be made only after giving the employee an opportunity to show cause.

How are deductions for damage or loss to be recorded?

All such deductions and realisations shall be recorded in a prescribed register.

When can deductions be made for house-accommodation, amenities or services?

Such deductions can be made only if the employee has accepted them as a term of employment or otherwise, shall not exceed their value, and shall be subject to Government-imposed conditions.

What conditions govern deductions for recovery of advances?

(a)
Advances given before employment may be recovered from the first wage payment, excluding travel advances;

(b)
advances given after employment began shall be recovered subject to prescribed conditions;

(c)
advances of wages not yet earned shall also be recovered subject to prescribed conditions.

How are deductions for recovery of loans regulated?

Deductions for recovery of loans, the extent of such loans, and the rate of interest shall be as prescribed.

Do the above provisions apply to Government establishments?

No. The provisions do not apply to Government establishments unless the appropriate Government applies them to specified Government establishments by notification.

Therefore, the payment of wages framework under the Code reflects a deliberate shift towards transparency, predictability and worker centric protection in wage administration. By mandating defined wage periods, fixed timelines for payment, limited and regulated deductions, and procedural safeguards in matters of fines and recoveries, the Code fortifies the principle that wages are not a discretionary benefit but a statutory entitlement. At the same time, the allowance of electronic payment modes and government notified flexibilities demonstrates an effort to align labour regulation with contemporary employment practices. Effective implementation and awareness among employers and employees alike will be crucial in translating these provisions into real economic security for workers and improved compliance across establishments.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Wages Without Delay appeared first on Greater Kashmir.

The Code introduces a uniform statutory architecture governing minimum wages across all employments, sectors and classes of workers while simultaneously strengthening the principles of non discrimination and fair remuneration. By empowering governments to fix minimum wages based on skill levels, geographical considerations and the nature of work and by introducing the concept of a national floor wage, the Code marks a significant shift from fragmented wage regulation to a harmonised and inclusive regime.

Is gender based wage discrimination allowed?

No. There shall be no discrimination on the grounds of gender in matters relating to wages for the same work or work of a similar nature.

Can an employer reduce wages to comply with gender equality?

No. An employer cannot reduce the wages of any employee to achieve compliance.

Is discrimination allowed at the recruitment stage?

No. Discrimination on the ground of sex in recruitment or conditions of employment is prohibited except where employment of women is restricted by law.

Who decides disputes about whether work is the same or similar?

Such disputes are decided by the authority notified by the appropriate Government.

Can an employer pay wages below the minimum wage?

No. No employer shall pay wages less than the notified minimum rate.

Who fixes minimum wages?

The appropriate Government fixes minimum wages.

On what basis are minimum wages fixed?

They may be fixed for time work or piece work and piece work wages must ensure minimum time based wages.

In what wage periods can minimum wages be fixed?

They may be fixed by the hour, day, or month.

What factors are considered while fixing minimum wages?

Skill level, geographical area, arduousness of work, hazardous nature, underground work and prescribed norms.

Should the number of minimum wage rates be many?

No. They should be kept at a minimum as far as possible.

What does minimum wage conceptually ensure?

It ensures sustenance of the worker and family and preservation of the worker’s efficiency.

What can minimum wages consist of?

They may consist of basic wages plus cost of living allowance, basic wages with concessions or an all inclusive rate.

Who computes cost of living allowance?

An authority appointed by the appropriate Government.

How are minimum wages fixed or revised?

Either by appointing committees or by publishing proposals for public consideration.

Who are represented in committees?

Employers, employees in equal numbers and independent persons.

When do revised wages come into effect?

Usually three months after notification.

How often must minimum wages be reviewed?

Ordinarily every five years.

Can the Government alter employment contracts while fixing minimum wages?

No. It can only fix or revise minimum wages, not alter contractual terms.

Can workers be reclassified based on experience by notification?

No. Such reclassification is beyond Government jurisdiction.

Are supervisory or inspector roles covered automatically?

No, if they do not fall within the definition of employee.

Are unpaid trainees covered?

No. Unpaid trainees and fixed training periods imposed by Government are impermissible.

Are contract workers covered?

Yes. Contract workers are covered equally.

Can wages be artificially split into allowances?

No. Such segregation is impermissible.

What is a floor wage?

It is a wage fixed by the Central Government considering minimum living standards.

Can minimum wages be below the floor wage?

No.

Can existing higher wages be reduced?

No.

Who is consulted before fixing floor wages?

Advisory Boards and State Governments.

Is a worker entitled to full wages if he works less hours?

Yes, unless the failure is due to unwillingness or prescribed exceptions.

How are wages paid if an employee does multiple types of work?

Wages must be paid according to the applicable minimum rate for each type of work.

What if only time-based minimum wages are fixed?

The employee must be paid at least the minimum time rate.

Can the Government fix working hours?

Yes, including rest days and overtime for rest days.

Are exceptions allowed?

Yes, for emergencies, intermittent work, preparatory work, technical work and work dependent on natural forces.

When is work considered intermittent?

When declared so by the Government due to periods of inaction during duty hours.

Is overtime payable?

Yes. Overtime must be paid at not less than twice the normal rate.

The minimum wage framework under the Code represents a decisive step towards simplifying wage regulation while reinforcing worker protection in a rapidly evolving labour market. By extending the applicability of minimum wages to all employments, introducing transparent procedures for fixation and revision and mandating periodic review, the Code seeks to balance economic realities with the imperative of social welfare. The introduction of a floor wage further ensures that no worker is paid below a nationally acceptable subsistence threshold irrespective of regional or sectoral variations. At the same time, judicial guidance continues to play a crucial role in ensuring that the exercise of wage fixing powers remains within statutory limits and does not encroach upon contractual autonomy or managerial prerogatives. As the Code transitions from legislation to lived reality, its success will ultimately depend on effective implementation, informed compliance by employers and robust enforcement by authorities. If applied in its true spirit, the minimum wage regime under the Code has the potential to advance the constitutional promise of fair wages and dignified work for millions of workers across India.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post From Fragmentation to Fairness appeared first on Greater Kashmir.

How is the order in which witnesses are produced and examined determined?

The order of producing and examining witnesses is regulated by the law and practice relating to civil and criminal procedure. If there is no such law, it is decided by the discretion of the Court.

What may a Judge ask when a party proposes to give evidence of a fact?

The Judge may ask how the alleged fact, if proved, would be relevant.

When will the Judge admit the proposed evidence?

The Judge will admit the evidence only if he considers that the fact, if proved, would be relevant.

What must happen if a fact is admissible only upon the proof of another fact?

The foundational fact must be proved first unless the party undertakes to prove it and the Court accepts that undertaking.

What if relevancy of one fact depends on another fact being proved first?

The Judge may allow the first fact to be proved before the second or may insist that the second fact be proved first.

In proving statements by a deceased person, what must be proved first?

It must first be proved that the person is dead.

What must be shown before producing a copy of a lost document?

It must be shown that the original is lost.

When proving denial of possession of stolen property, what may the Court require?

The Court may require the property to be identified before proving the denial, or allow the denial to be proved first.

When proving that a fact is a cause or effect of a fact in issue, how may the Court proceed regarding intermediate facts?

The Court may either require the intermediate facts to be proved first or allow proof of the main fact before intermediate facts.

What is examination-in-chief?

Examination of a witness by the party who calls him.

What is cross-examination?

Examination by the adverse party.

What is re-examination?

Examination after cross-examination by the party who called the witness.

In what sequence are witnesses examined?

First examination-in-chief, then cross-examination, then re-examination.

To what must examination-in-chief and cross-examination relate?

They must relate to relevant facts, but cross-examination need not be confined to facts stated in examination-in-chief.

What is the scope of re-examination?

It must address matters raised in cross-examination, if new matters are introduced with permission, the adverse party may further cross-examine on those matters.

Does a person called only to produce a document become a witness?

No. He cannot be cross-examined unless he is called as a witness.

Can witnesses to character be cross-examined and re-examined?

Yes.

What is a leading question?

A question that suggests the answer the questioner wants or expects.

When are leading questions prohibited?

During examination-in-chief or re-examination if the adverse party objects, unless the Court permits.

When must the Court allow leading questions?

On introductory or undisputed matters, or those already proved.

When may leading questions be asked freely?

In cross-examination.

What may a witness be asked about contracts or dispositions of property?

Whether they were contained in a document.

What if the witness starts to speak about document contents?

The adverse party may object until the document is produced or secondary evidence is justified.

When may a witness give oral evidence about statements regarding document contents?

If such statements themselves are relevant facts.

Can a witness be cross-examined on previous written statements?

Yes, without showing the writing.

When must his attention be drawn to parts of the writing?

When it is intended to contradict him with that writing.

What types of questions may be asked in cross-examination besides those already permitted?

Questions to test veracity, discover identity or social position, shake credit by injuring character even if answers incriminate the witness.

What restriction applies in cases involving consent in certain offences?

Evidence or questions about the victim’s general immoral character or previous sexual experience cannot be used to prove consent.

When must a witness answer a question affecting a relevant matter?

When the question relates to a matter relevant to the case.

When does the Court decide whether a witness must answer a question unrelated to the case but affecting credibility?

When such a question injures character but is not relevant to the case itself.

What factors will the Court consider?

(a)
Whether the truth would seriously affect credibility.

(b)
Whether the imputation is too remote.

(c)
Whether the imputation is disproportionate to the value of the evidence.

(d)
Whether refusal to answer permits an adverse inference.

When may a question affecting character be asked?

Only if the questioner has reasonable grounds for believing the imputation to be well-founded. Random accusations without basis cannot be asked.

What may the Court do if such a question was asked by an advocate without reasonable grounds?

Report the matter to the High Court or relevant authority.

When may the Court forbid indecent or scandalous questions?

Whenever they are not necessary to establish a fact in issue or a matter essential to determine such facts.

When must the Court forbid a question?

When it is intended to insult or annoy or is needlessly offensive.

Can a witness’s answer to a question affecting only his character be contradicted?

No, except for two exceptions.

What are the exceptions?

(a)
Previous convictions may be proved if denied.

(b)
Facts impeaching impartiality may be contradicted.

When may a party ask questions to its own witness as in cross-examination?

When permitted by the Court.

Can the party still rely on parts of such witness’s testimony?

Yes.

How may the credit of a witness be impeached?

(a)
By testimony about his untrustworthiness.

(b)
By proof of bribery or corrupt inducement.

(c)
By proof of inconsistent former statements.

Can a witness explaining why he considers another unworthy of credit be contradicted?

No, but he may be prosecuted for false evidence if his answers are false.

When may a witness be asked about other circumstances to corroborate a relevant fact?

When the Court finds such circumstances would support his testimony.

When can a witness’s former statements be proved for corroboration?

If made at or near the time of the fact, or before an authority legally empowered to investigate.

What may be proved when a statement relevant under dying declarations or similar provisions is proved?

Any matter that could be used to contradict or corroborate the maker of the statement, or affect his credit, as if he were a witness.

When may a witness refresh memory with a writing?

(a)
If he wrote it at the time of the transaction or soon after.

(b)
If written by someone else but read by him then, knowing it was correct.

May a witness refresh memory using a copy?

Yes, with the Court’s permission and sufficient reason for non-production of the original.

May experts refresh memory using professional treatises?

Yes.

Can a witness testify to facts in such documents even without recollection?

Yes, if he is sure the documents accurately recorded the facts.

What are the rights of the adverse party?

They may inspect the writing and cross-examine the witness on it.

What must a witness summoned to produce a document do?

Bring it to Court, despite objections.

How are objections to production handled?

The Court decides validity of objections.

May the Court inspect the document?

Yes, unless it concerns matters of State.

May the Court order translation of documents?

Yes, and may direct secrecy. Violation amounts to an offence.

What communication cannot be compelled?

Communications between Ministers and the President.

If a party calls for a document and inspects it, must he use it?

Yes, if the producing party insists.

Can a party later use a document he refused to produce?

No, unless the other party consents or Court permits.

What may a Judge do to obtain proof of relevant facts?

(a)
Ask any question, in any form, at any time, to any witness or party.

(b)
Order production of any document or thing.

Can parties object?

No, unless the Court’s consent is sought.

On what must judgment be based?

Only on relevant and duly proved facts.

What limits apply to Judge’s powers?

(a)
Cannot compel answers or production where witness has a legal right to refuse.

(b)
Cannot ask improper questions.

(c)
Cannot dispense with primary evidence except as allowed.

Is improper admission or rejection of evidence a ground for new trial or reversal?

No, if the Court finds:

(a)
The properly admitted evidence was sufficient, or

(b)
The rejected evidence would not have changed the decision.

What statute is repealed by BSA?

The Indian Evidence Act, 1872 has been repealed.

What happens to pending proceedings?

Any application, trial, inquiry, investigation, proceeding or appeal pending before commencement of the BSA will continue under the old law as if the new one had not come into force.

Therefore, by unifying clear witness examination norms with a restrained doctrine on evidentiary errors, the BSA shifts focus from technical skirmishes to truth finding. Judges are empowered to direct inquiry, parties are steered toward relevant, reliable proof and trials gain predictability with fewer retrials on mere technicalities. The net effect is sharper courtroom practice, stronger records, fairer evaluations of credibility and judgments that rest on substance rather than procedural missteps.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post The Power of the Witness Box appeared first on Greater Kashmir.

What is the principle of estoppel?

Estoppel means that when a person, by his declaration, act, or omission, intentionally causes or allows another person to believe something to be true and to act upon that belief, he or his representative cannot later deny the truth of that thing in any suit or proceeding between them.

Is there any illustration explaining the rule of estoppel?

If A intentionally and falsely leads B to believe that a certain land belongs to A and induces B to buy and pay for it, and later the land actually becomes A’s property, A cannot later claim that he had no title at the time of sale. He is not allowed to prove his lack of title.

What are the general principles behind the doctrine of estoppel?

(a)
It is based on the maxim that a party cannot be heard to allege the contrary.

(b)
It creates a conclusive presumption against a particular party due to some act done by that party.

(c)
It is an argument directed personally (argumentum ad hominem).

What is the basic principle underlying issue estoppel?

The same issue of fact and law must have been previously determined in earlier litigation.

Is the doctrine of estoppel absolute, or does it have exceptions?

It has exceptions. There is no estoppel against statute. The doctrines of election and approbate reprobate are also subject to exceptions.

How does estoppel relate to abandonment of rights?

(a)
If abandonment of right and estoppel against a person claiming vested interest in property is established, he may be prevented from seeking legal redress or asserting a claim.

(b)
Mere waiver, acquiescence, or delay is not enough to extinguish title.

(c)
Abandonment can be inferred from conduct.

Can a tenant deny the landlord’s title?

No. A tenant or anyone claiming through the tenant cannot deny that the landlord had title to the property at the beginning of the tenancy, during or after the tenancy.

Can a licensee deny the title of the person who granted the licence?

No. A person who enters property by licence cannot deny that the licensor had title to possession at the time the licence was granted.

Can an acceptor of a bill of exchange deny the authority of the drawer?

No. An acceptor cannot deny that the drawer had authority to draw or endorse the bill.

Can a bailee or licensee deny the authority of the bailor or licensor?

No. A bailee or licensee cannot deny that the bailor or licensor had authority to make the bailment or grant the licence at the beginning.

Who is competent to testify?

All persons are competent unless the Court believes they cannot understand questions or give rational answers due to tender age, extreme old age, disease (physical or mental), or any similar cause.

Can a person of unsound mind testify?

Yes. A person of unsound mind is not incompetent unless the unsoundness prevents understanding of questions or rational answering.

How should evidence of a child witness be approached?

It must be scrutinised with care and caution, especially if the child is the sole eyewitness.

How does a court determine the competency of a child witness?

(a)
The judge forms an opinion on the child’s ability.

(b)
The child may be questioned to assess intelligence, understanding of the occurrence, and ability to speak the truth.

(c)
There is no fixed rule.

How can a witness unable to speak give evidence?

(a)
By writing or signs, made in open Court.

(b)
Such evidence is treated as oral evidence.

(c)
Court must take help of an interpreter or special educator and the statement must be videographed.

Are spouses competent witnesses?

(a)
In civil cases: parties and their spouses are competent.

(b)
In criminal cases: the accused’s spouse is competent.

Can a Judge or Magistrate be compelled to answer questions about his judicial conduct?

(a)
Not without a special order of a superior Court.

(b)
They may however be examined about other matters occurring in their presence.

Are there any illustrations explaining this rule?

(a)
A cannot compel Magistrate B to answer questions about allegedly improper recording without superior Court order.

(b)
B cannot be asked what A said during earlier proceedings without such order.

(c)
A Judge present during an alleged attack may testify about what occurred.

Are communications between spouses during marriage protected?

Yes. A person cannot be compelled or permitted to disclose communications made by the spouse during marriage, unless the spouse consents, except in suits or proceedings between the spouses or where one is prosecuted for a crime against the other.

Can evidence from unpublished official records relating to State affairs be given?

(a)
Only with permission of the department head.

(b)
The rule applies only to unpublished documents.

(c)
Improperly obtained copies do not make the documents admissible.

Why is official secrecy protected?

(a)
The candour principle (ensuring honest internal communication).

(b)
The need for informed criticism.

(c)
Privilege rules govern these situations.

Can a public officer be compelled to disclose official confidential communications?

No, if he believes disclosure would harm public interest.

Can a Magistrate, police officer, or revenue officer be compelled to reveal the source of information regarding an offence?

No. They cannot be compelled to say when they received such information.

What communications between an advocate and client are protected?

(a)
All communications made during the professional engagement.

(b)
Contents of documents seen in that capacity.

(c)
Advice given by the advocate.

When is such communication not protected?

(a)
It is made in furtherance of an illegal purpose.

(b)
The advocate observes a fact showing a crime or fraud committed after the engagement began.

Does it matter whether the client pointed out the fact to the advocate?

No. Protection does not depend on whether the client drew attention to the fact.

Does the obligation of confidentiality continue after the engagement ends?

Yes.

Are there any illustrations explaining protected and unprotected professional communications?

(a)
A client admitting past forgery to seek defence — protected.

(b)
A client seeking to use a forged deed for obtaining property — not protected.

(c)
Advocate discovering a fraudulent entry made after his engagement began — not protected.

Who else is bound by professional confidentiality rules?

Interpreters and clerks or employees of advocates.

Does a party waive privilege by giving evidence?

No. A party testifying does not automatically consent to disclosure of privileged communications.

If a party calls his advocate as a witness, is privilege waived?

Only if the party questions the advocate on privileged matters.

Can a person be forced to disclose confidential communication with a legal adviser?

No, unless he offers himself as a witness. Even then, disclosure is limited to what is necessary to explain his testimony.

Can a witness who is not a party be compelled to produce title deeds?

No, unless he has agreed in writing to produce them.

Can a person be compelled to produce documents or electronic records that someone else could refuse to produce?

No, unless that other person consents.

Can a witness refuse to answer a question because it may incriminate him or expose him to a penalty?

No. A witness cannot refuse on that ground.

What protection is given to such a witness?

Any compelled answer cannot:

(a)
Subject him to arrest or prosecution, or

(b)
Be used in criminal proceedings, except for prosecution for giving false evidence.

What is the policy underlying this protection?

(a)
To secure all possible evidence for justice.

(b)
To ensure a witness speaking truth is not penalised.

What does “answers the witness is compelled to give” mean?

(a)
Compulsion arises from the legal duty to answer truthfully.

(b)
Not dependent on judicial pressure.

(c)
Any voluntary answer also counts as compelled and cannot be used against the witness.

Is an accomplice a competent witness?

Yes.

Can a conviction be based on accomplice testimony?

Yes, if the testimony is corroborated.

How do the rules on accomplices operate together?

(a)
Conviction on accomplice evidence is legally valid.

(b)
Courts generally seek independent corroboration.

(c)
Several accomplices may corroborate each other if their statements are independently given without prior concert.

Is there any required number of witnesses to prove a fact?

No. No specific number is required.

Therefore, the dual pillars of estoppel and witness competency under the BSA reflect a careful calibration of equity, procedural fairness and evidentiary soundness. Estoppel prevents injustice by holding parties to their prior representations and conduct, discouraging opportunistic denials after benefiting from a transaction or causing reliance. The witness-related provisions, on the other hand, strive to open the courts to all competent individuals including children, persons with disabilities or communication difficulties or even parties and their spouses subject to safeguards that ensure the reliability and fairness of the evidence. This legal architecture thus aims to foster both substantive justice and procedural legitimacy, promoting confidence in transactions and ensuring that fact finding remains comprehensive, balanced and respectful of basic human and societal values.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Chains of Conduct, Chorus of Truth appeared first on Greater Kashmir.

What is the rule regarding burden of proof when a person wants a court to decide on a legal right or liability?

Whoever wants a court to give a judgment about a legal right or liability that depends on certain facts must prove that those facts exist. When a person is required to prove the existence of a fact, the burden of proof lies on that person.

If A wants the court to punish B for a crime which A alleges B committed, who must prove the commission of the crime?

A must prove that B committed the crime.

If A wants the court to declare that he is entitled to land in B’s possession based on facts that B denies, who must prove those facts?

A must prove the existence of those facts.

Who bears the burden of proving mala fides?

The burden of proving mala fides lies on the person alleging it.

When are presumptions not to be invoked?

Presumptions are not invoked when the truth or fact is already known. If the fact is known, there is no room for presumption.

Who bears the burden when the constitutional validity of a law is challenged?

The person who challenges the constitutional validity of a law must prove that it is invalid.

Who bears the burden of proving the existence of a Hindu Undivided Family (HUF)?

The person who asserts that a HUF exists must prove it.

On whom does the burden of proof lie in a suit or proceeding?

The burden of proof lies on the person who would lose if no evidence were given by either side.

If A sues B on a bond whose execution is admitted, and B alleges fraud, who bears the burden?

The burden of proof is on B because if no evidence were given on either side, A would succeed.

Who bears the burden of proof when alleging breach of contract?

The party alleging breach must prove the breach, applying the test of who would fail if no evidence were led.

Who bears the burden of proving a particular fact?

The person who wants the court to believe in the existence of that fact must prove it, unless the law places the burden elsewhere.

If A alleges that B admitted a theft, who must prove the admission?

A must prove the admission.

If B claims he was elsewhere at the relevant time, who must prove it?

B must prove the fact that he was elsewhere.

Who bears the burden of proving facts necessary to make other evidence admissible?

The person who wants to give that evidence must prove the necessary preliminary facts.

If A wants to prove a dying declaration by B, what must A establish?

A must prove that B is dead.

If A wants to give secondary evidence of a lost document, what must A prove?

A must prove that the document has been lost.

Who bears the burden of proving circumstances bringing an accused person within any general or special exception?

The accused bears the burden, and the court will presume absence of such circumstances.

If A is accused of murder and claims unsoundness of mind, who must prove this?

A must prove it.

If A claims grave and sudden provocation, who bears the burden?

A bears the burden.

If A is charged with voluntarily causing grievous hurt, and claims to fall under a special exception, who must prove this?

A must prove the circumstances bringing the case under the exception.

Does raising a plea of private defence shift the prosecution’s burden?

No. The prosecution must first prove its case beyond reasonable doubt. Only thereafter does the question of private defence arise.

Who bears the burden of proving insanity as a defence?

The accused must prove it.

What is the rule when a fact is especially within a person’s knowledge?

The burden of proving that fact lies on that person.

If a person claims he acted with a different intention than suggested by his conduct, who must prove that intention?

He must prove it himself.

If a person is charged with travelling without a railway ticket, who must prove that he had a ticket?

He must prove it.

Does the rule about special knowledge diminish the prosecution’s burden?

No. It does not undermine the rule that prosecution must prove its case, except in very exceptional cases.

What determines on whom the onus lies?

It depends on the facts of each case.

How does the “last seen together” theory relate to this burden?

If the accused was last seen with the deceased in close proximity to the time of death and provides no explanation, the burden may shift to him regarding facts within special knowledge, contributing to conviction when supported by other circumstances.

Who bears the burden of proving that a person is dead when it is shown that he was alive within thirty years?

The person asserting that the man is dead must prove it.

Who bears the burden of proving that a person is alive when he has not been heard of for seven years?

The person asserting that he is alive must prove it.

Who bears the burden of proving that parties who acted as partners, landlord and tenant, or principal and agent are no longer in those relationships?

The person who claims that the relationship has ceased must prove it.

Who bears the burden of proving that a person in possession of property is not its owner?

The person asserting that he is not the owner must prove it.

Who bears the burden of proving good faith in a transaction where one party stands in a position of active confidence?

The party in the position of active confidence must prove the good faith of the transaction.

What presumption applies when a person is accused of certain offences in disturbed areas?

If the person was present at a place where firearms or explosives were used to attack armed forces, it is presumed unless the contrary is shown that he committed the offence.

What offences does this presumption apply to?

It applies to certain offences involving unlawful assembly, rioting, and related acts, including conspiracy, attempt, and abetment.

What is the rule regarding legitimacy of a child born during marriage?

A person born during a valid marriage or within 280 days after its dissolution (if the mother remains unmarried) is conclusively presumed to be the legitimate child of the husband, unless it is shown that the spouses had no access to each other.

What presumption applies when a married woman commits suicide?

If she dies within seven years of marriage and it is shown that she was subjected to cruelty by her husband or his relatives, the court may presume that the suicide was abetted by them.

When can this presumption be invoked?

Only when the prosecution proves the prerequisites thereafter the burden shifts to the accused.

Does suicide at the matrimonial home automatically imply cruelty?

No. Suicide by itself does not lead to a presumption of cruelty.

What presumption applies in cases of dowry death?

If it is shown that the woman was subjected to cruelty or harassment for dowry soon before her death, the court shall presume that the accused caused the dowry death.

What may a court presume regarding the existence of certain facts?

The court may presume facts likely to have happened, considering natural events, human conduct, and business practices.

Are there any examples of these presumptions?

(a) A person in possession of stolen goods soon after theft is presumed to be the thief or receiver.

(b) An accomplice is presumed unworthy of credit unless corroborated.

(c) A bill of exchange is presumed to be for good consideration.

(d) A state of things existing recently is presumed to continue.

(e) Judicial and official acts are presumed properly performed.

(f) Usual business practices are presumed followed.

(g) Withholding evidence raises a presumption that it would be unfavourable.

(h) Refusing to answer a question implies an unfavourable answer.

(i) A document creating an obligation found with the obligor implies discharge.

What factors must the court consider in applying or rejecting these presumptions?

The court must consider various circumstances provided, such as:

(a) The nature of business (e.g., a shopkeeper receiving marked coins).

(b) The credibility of witnesses.

(c) Improbability of prior concert among accused persons.

(d) Relative influence between parties.

(e) Effects of natural events like floods.

(f) Exceptional circumstances affecting official acts.

(g) Interruptions in postal service.

(h) The impact of producing sensitive documents.

(i) Risks unrelated to the matter when refusing answers.

(j) Possibility of the obligor having stolen a document.

What is the purpose of these presumptions?

Their purpose is to fill gaps in the chain of evidence and aid judicial reasoning.

Can a presumption be raised against the accused?

No. Presumptions of fact or evidence cannot be raised against an accused.

Can courts presume continuance of a state of affairs?

Yes, unless discontinuity is proved. A stray revenue entry is insufficient to prove discontinuity.

Are official acts presumed to be regularly performed?

Yes. Courts should not begin with distrust of police records.

Can an adverse presumption be drawn against a defendant who avoids cross examination?

Yes. If a defendant refuses to enter the witness box, an adverse presumption may be drawn.

Therefore, the BSA affirms and refines the timeless principle that a party who asserts facts must prove them, while also specifying circumstances in which legal presumptions and shifts of onus arise. Whether in civil disputes over property and contracts, or criminal cases invoking general or special exceptions, the law strikes a balance, placing initial responsibility with the party making allegations, yet not losing sight of fairness and substantive justice. By clarifying when, how, and on whom the burden rests, the BSA streamlines evidence law and enhances the predictability of outcomes.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post When Facts Seek Light appeared first on Greater Kashmir.

When the terms of a contract, grant, or other disposition of property have been reduced to a document, can oral evidence be given to prove those terms?

No. When the terms of a contract, grant, or any other disposition of property have been reduced to the form of a document, and whenever any matter is required by law to be documented, no evidence may be given in proof of those terms except the document itself or admissible secondary evidence of its contents.

Is proof of appointment in writing necessary when a public officer is shown to have acted in that capacity?

No. When a public officer is required by law to be appointed in writing, and it is shown that a particular person has acted as such officer, the written appointment need not be proved.

How may wills admitted to probate in India be proved?

Wills that have been admitted to probate may be proved by the probate itself.

Does the rule apply to contracts, grants, or dispositions of property that are contained in multiple documents?

Yes. The rule applies equally whether such terms are contained in one document or several documents.

If there are multiple originals of a document, must all originals be proved?

No. Only one original needs to be proved.

Does a statement of a fact in a document prevent oral evidence from being admitted about that fact?

No. A statement of a fact in any document (other than the terms that must be proved by the document itself) does not bar admission of oral evidence of that fact.

If a contract is contained in several letters, must all the letters be proved?

Yes, all letters containing the contract must be proved.

If a contract is contained in a bill of exchange, what must be proved?

The bill of exchange must be proved.

If a bill of exchange is drawn in a set of three, must all be proved?

No. Only one needs to be proved.

If a written contract mentions payment for another transaction done verbally, can oral evidence be given to show that no such payment was made?

Yes. Oral evidence is admissible.

If A gives B a written receipt for money paid, can oral evidence be given to prove the payment?

Yes, the evidence is admissible.

After proving the terms of a document, can oral evidence be given to contradict, vary, add to, or subtract from those terms?

Generally, no. When the terms of a documented contract, grant, disposition of property, or any matter required to be documented have been proved, oral evidence between the parties or their representatives cannot be admitted to contradict, vary, add to, or subtract from its terms.

What facts may still be proved to invalidate or affect a document?

Facts that may invalidate or entitle a party to a decree or order such as fraud, intimidation, illegality, want of due execution, lack of capacity, want or failure of consideration, or mistake of fact or law may always be proved.

Can a separate oral agreement regarding a matter on which the document is silent be proved?

Yes, if the oral agreement is not inconsistent with the terms of the document. The degree of formality of the document will be considered in deciding this.

Can a separate oral agreement constituting a condition precedent to obligations under the document be proved?

Yes, such evidence is admissible.

Can a subsequent oral agreement modifying or rescinding the document be proved?

Yes, unless the document is required by law to be in writing or has been registered.

Can usage or custom be proved to annex incidents to a contract?

Yes, provided such incident is not repugnant to or inconsistent with the express terms of the contract.

Can evidence be given to show how the language of a document relates to existing facts?

Yes, such evidence is admissible.

Can oral evidence be given that a particular ship was excepted from an insurance policy on goods “in ships from Kolkata to Visakhapatnam”?

No, such oral evidence is not admissible.

If a written agreement requires A to pay B on a specific date, can oral evidence be given that payment was orally postponed?

No, such oral evidence cannot be proved.

Can oral evidence be given that land not shown on a map in a sale deed was still intended to pass?

No, such evidence is not admissible.

Can A prove that he was induced into a written mining contract by B’s misrepresentation of the mine’s value?

Yes, this fact may be proved.

Can A prove a mistake in a contract sought to be specifically enforced where reformation is prayed for?

Yes, such a mistake may be proved.

If goods are ordered by letter without mention of payment terms, can A show that credit was agreed?

Yes, A may prove that credit was allowed.

If A sells B a horse with a verbal warranty but gives only a written receipt, may B prove the verbal warranty?

Yes, the warranty can be proved.

If lodgings are hired with a written card stating only rent, can A prove a verbal agreement about partial board?

Yes, in the informal arrangement. But if a formal stamped agreement is made and silent on board, A cannot prove a verbal term for board.

If A sends B a receipt for money due and B keeps it without paying, can A prove this in a suit?

Yes, A may prove it.

If a contract is to take effect on a contingency and the writing is left with B, can A prove circumstances of delivery?

Yes, he may show these facts.

Can evidence be given to explain or amend ambiguous or defective language appearing on the face of a document?

No. If a document’s language is facially ambiguous or defective, evidence cannot be given to explain its meaning or supply defects.

If A agrees to sell a horse for “one lakh rupees or one lakh fifty thousand rupees”, can evidence be given to show which price was intended?

No.

If a deed contains blanks, can evidence be given to show how they were meant to be filled?

No.

When a document’s language is plain and applies accurately to existing facts, can evidence be given to show it was intended to apply differently?

No. Evidence cannot be given to show that it was not meant to apply to such facts.

If A has an estate at Rampur of 100 bighas and sells “my estate at Rampur containing 100 bighas”, can evidence show that some other land was intended?

No, such evidence is not admissible.

When a document’s language is plain but meaningless with reference to existing facts, can evidence be given to show a peculiar meaning?

Yes. Evidence may be given to show the language was used in a special sense.

If a deed conveys “my house in Kolkata” but A has no house in Kolkata and B has been occupying A’s house in Howrah, can these facts be proved?

Yes, to show that the deed referred to the Howrah house.

When language could apply to one of several persons or things, can evidence be given to show which was intended?

Yes. Evidence may be given to identify the intended person or thing.

If A has two white horses and agrees to sell B “my white horse”, can evidence be given to show which one?

Yes.

If A agrees to accompany B to Ramgarh, can evidence show which Ramgarh (in Rajasthan or Uttarakhand) was meant?

Yes.

When language applies partly to one of two sets of facts and partly to another, can evidence show which was intended?

Yes. Evidence may be given to identify the intended subject matter.

If A agrees to sell “my land at X in the occupation of Y” but has land at X not occupied by Y and land occupied by Y not at X, can evidence determine which land was meant?

Yes.

Can evidence be given to explain illegible, obscure, foreign, technical, or special expressions?

Yes. Evidence may be given to explain illegible characters, uncommon expressions, abbreviations, technical or local terms, or words used in a special sense.

If A, a sculptor, agrees to sell B “all my mods”, and A has both models and modelling tools, can evidence be given to show which was intended?

Yes.

May a person who is not a party to a document give evidence of a contemporaneous oral agreement varying its terms?

Yes. Persons who are not parties (or their representatives) may give evidence of such facts.

If A and B make a written contract for sale of cotton payable on delivery but also make a contemporaneous oral agreement for three months’ credit, can C prove this oral agreement if it affects his interest?

Yes, C may prove it, though A and B cannot do so between themselves.

Therefore, the BSA strengthens the reliability of documentary proof while allowing oral evidence only in limited, clearly defined situations. By prioritising written and electronic records, the law enhances certainty in litigation and reduces disputes based on unverifiable oral claims ensuring a more consistent and objective evidentiary process.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post The Primacy of Documents appeared first on Greater Kashmir.

What are considered public documents?

The following are public documents:

1. a)
   Documents forming the acts, or records of the acts of the sovereign authority; of official bodies and tribunals; and of public officers, legislative, judicial, and executive, of India or of a foreign country.
2. b)
   Public records kept in any State or Union territory of private documents.

What are private documents?

All documents except public documents are private documents.

Are public records of private documents themselves public documents?

Public records kept in any State of private documents are public documents, but the private documents of which public records are kept are not themselves public documents.

What is the nature of a registered private document or conveyance?

Though the entry in the register book is a public document, the original registered private document is a private document. Hence, a registered private document or conveyance is not a public document.

Is a certified copy of a registered instrument a public record of a private document?

No. A certified copy of a registered instrument is not a public record of a private document because the original must be returned to the party.

Are Parliamentary Committee reports admissible in evidence?

Yes. They are admissible as public documents.

Is permission from the Speaker required to produce Parliamentary Committee reports in court?

No, because such reports are already in the public domain.

Who adjudicates on factual and legal issues involving such reports?

It is the court, not Parliament, which adjudicates on factual and legal issues.

Who can issue certified copies of public documents?

Every public officer having custody of a public document that any person has a right to inspect must issue a certified copy on demand, upon payment of the legal fee.

What must such a certified copy contain?

(a)
It must be certified as a true copy,

(b)
Be dated and signed by the officer,

(c)
Bear his name and official title,

(d)
Be sealed if the officer is authorised to use a seal.

Who is deemed to have custody of such documents?

Any officer who, by ordinary course of duty, is authorised to deliver such copies is deemed to have custody of such documents.

How can public documents be proved in court?

By producing certified copies of such documents or parts thereof.

How can certain public documents be proved?

The following public documents may be proved as follows:

(a)
Acts, orders or notifications of the Central or State Government or Union territory Administration by certified records of the Department, or by any document printed by order of the Government.

(b)
Proceedings of Parliament or State Legislature by journals of those bodies, or by published Acts or abstracts printed by Government order.

(c)
Proclamations, orders or Regulations by the President, Governor or Administrator by copies or extracts in the Official Gazette.

(d)
Acts or proceedings of foreign Governments by official journals, certified copies under seal, or recognition in any Central Act.

(e)
Proceedings of municipal/local bodies by certified copies of proceedings, or by printed books published under authority of such bodies.

(f)
Public documents of foreign countries by originals or certified copies with a Notary/Indian Consul’s certificate verifying the legal keeper and authenticity under foreign law.

What presumption does the court make about certified copies?

The court shall presume such documents to be genuine if duly certified by an authorised officer and executed in the prescribed form.

What about the officer’s authority?

The court shall presume that the certifying officer held the official position he claims at the time of certification.

What presumptions apply to documents recording judicial evidence or confessions?

The court shall presume:

(a) The document is genuine;

(b)
Statements about circumstances of recording are true;

(c)
Such evidence or confession was duly taken in accordance with law.

What presumption applies to Gazettes, newspapers, and similar documents?

The court shall presume their genuineness if produced from proper custody and kept substantially as required by law.

What is meant by proper custody?

It means custody with the person and in the place where it should lawfully be kept. Custody is not improper if it has a legitimate origin or is likely under the circumstances.

What presumption applies to travellers’ accounts and gazettes?

The genuineness of such documents is presumed but not the truth of their contents.

Are Gazetteer contents relevant in evidence?

Yes. Gazette entries are relevant as facts recorded in official duty and may serve as expert opinion. They aid discovery of historical facts but are not conclusive.

What presumption applies to electronic or digital Gazettes?

The court shall presume their genuineness if maintained and produced from proper custody in accordance with law.

What constitutes proper custody for electronic records?

Proper custody means they are kept where and by whom they are required to be kept or have a legitimate and probable origin.

What presumption applies to government maps or plans?

The court shall presume they were made by Government authority and are accurate, unless made for litigation purposes (which must be proved).

What presumption applies to law reports and collections of laws?

The court shall presume the genuineness of every book printed or published under government authority containing the laws or court decisions of that country.

What presumption applies to powers of attorney?

Every document purporting to be a power of attorney executed before and authenticated by a Notary, Court, Judge, Magistrate, or Indian Consul is presumed to be validly executed and authenticated.

What presumption applies to electronic agreements?

The court shall presume every electronic record purporting to be an agreement with electronic/digital signatures was concluded by affixing those signatures.

What presumption applies to secure electronic records?

The court shall presume they have not been altered since the time of certification.

What about secure electronic signatures?

The court shall presume such signatures were affixed intentionally by the subscriber for authentication.

Are non-secure electronic records covered by presumption?

No, the section applies only to secure electronic records and signatures.

What presumption applies to Electronic Signature Certificates?

Unless proved otherwise, the information listed in the certificate is correct except subscriber information not verified, if accepted by the subscriber.

What presumption applies to certified copies of foreign judicial records?

The court may presume them genuine and accurate if certified as per the practice of that country and confirmed by an authorised Indian representative.

What presumption applies to published books, maps, or charts?

The court may presume they were written or published by the person and at the time and place mentioned, if relevant to matters of public or general interest.

What presumption applies to electronic messages?

The court may presume that an email message corresponds with what was fed into the originator’s computer for transmission. However, it will not presume who actually sent it.

What presumption applies to documents called for but not produced?

The court shall presume that such documents were duly attested, stamped, and executed as required by law.

What presumption applies to documents thirty years old?

The court may presume such documents, if from proper custody, to be duly signed, written, executed, and attested by the persons it purports to be.

What is considered proper custody?

(a)
A possesses land long and produces deeds showing title – proper custody.

(b)
A is mortgagee and produces mortgage deeds while mortgagor is in possession – proper custody.

(c)
A holds deeds of B’s land given for safe custody – proper custody.

Does presumption extend to correctness of statements in the document?

No. The presumption does not apply to correctness of contents.

Does presumption apply to wills over 30 years old?

No. Wills must be proved under the Succession Act and BSA.

Can the 30-year period be relaxed even slightly?

No. Relaxation, even by a few months, is not permissible.

What presumption applies to electronic records five years old?

If produced from proper custody, the court may presume that the electronic signature was affixed by the person or authorised agent.

Therefore, the BSA strengthens the evidentiary regime by clearly defining the scope of public documents and codifying presumptions that courts may draw from specific classes of documents. These provisions strike a balance between procedural efficiency and evidentiary integrity ensuring that authentic documents produced from official or reliable sources are given due legal weight. By aligning with contemporary needs, including recognition of electronic and digital records, the BSA upholds the principle that the law of evidence must evolve with society while preserving its core purpose, i.e., discovering the truth through reliable and verifiable proof.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Trusting the Written Word appeared first on Greater Kashmir.

What is the rule regarding facts which are judicially noticeable?

No fact of which the Court will take judicial notice needs to be proved.

Which facts shall the Court take judicial notice of?

The Court shall take judicial notice of the following facts:

1. a)
   All laws in force in the territory of India, including laws having extra-territorial operation.
2. b)
   International treaties, agreements, or conventions with countries by India, or decisions made by India at international associations or other bodies.
3. c)
   The course of proceedings of the Constituent Assembly of India, of Parliament of India, and of the State Legislatures.
4. d)
   The seals of all Courts and Tribunals.
5. e)
   The seals of Courts of Admiralty and Maritime Jurisdiction, Notaries Public, and all seals which any person is authorised to use by the Constitution, or by an Act of Parliament or State Legislature, or by Regulations having the force of law in India.
6. f)
   The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette.
7. g)
   The existence, title, and national flag of every country or sovereign recognised by the Government of India.
8. h)
   The divisions of time, the geographical divisions of the world, and public festivals, fasts, and holidays notified in the Official Gazette.
9. i)
   The territory of India.
10. j)
    The commencement, continuance, and termination of hostilities between the Government of India and any other country or body of persons.
11. k)
    The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of advocates and other persons authorised by law to appear or act before it.
12. l)
    The rule of the road on land or at sea.

What may the Court do in relation to judicial notice and reference materials?

In such cases, and also on all matters of public history, literature, science or art, the Court may resort to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless such person produces such books or documents as it considers necessary.

What caution must the Court exercise while relying on historical texts?

The Court must exercise caution before deriving negative inferences from historical texts i.e., the absence of a reference to an event in a historical text cannot be a decisive factor to believe or disbelieve a fact. The Court must be circumspect in drawing negative inferences from what a historical text does not contain.

What is the rule regarding admitted facts?

No fact needs to be proved in any proceeding which the parties or their agents agree to admit at the hearing, or which before the hearing they agree to admit in writing, or which by any rule of pleading they are deemed to have admitted. However, the Court may require such facts to be proved otherwise than by such admissions.

What is the nature of admissions as evidence?

(a)
An admission enabling inference of another’s title must be clear and explicit. An admission cannot create title.

(b)
Admitted facts need not be proved.

(c)
Admission of fact must be during trial or at hearing.

How may facts be proved by oral evidence?

All facts, except the contents of documents, may be proved by oral evidence.

What is meant by direct oral evidence?

Oral evidence shall, in all cases, be direct. If it refers to:

(a)
A fact that could be seen, it must be evidence of a witness who saw it.

(b)
A fact that could be heard, it must be evidence of a witness who heard it.

(c)
A fact perceived by any other sense, it must be evidence of the witness who perceived it.

(d)
An opinion, it must be evidence of the person who holds that opinion.

(e)
However, opinions of experts expressed in published treatises may be proved by producing such treatises if the author is dead, missing, incapable, or cannot be called without unreasonable delay or expense. The Court may require production of any material thing referred to by oral evidence for inspection.

What is the rule regarding hearsay evidence?

Testimony based on information from another person is inadmissible unless that informant is examined as a witness.

How may the contents of documents be proved?

The contents of documents may be proved either by primary or by secondary evidence.

What is primary evidence?

Primary evidence means the document itself produced for the Court’s inspection.

(a)
If a document is executed in several parts, each part is primary evidence.

(b)
Each counterpart is primary evidence against the party executing it.

(c)
Documents made by a uniform process (printing, lithography, photography) are primary evidence of each other but not of the original.

(d)
Each simultaneously or sequentially stored digital file is primary evidence.

(e)
Electronic or digital records produced from proper custody are primary evidence unless disputed.

(f)
Simultaneously stored and transmitted video recordings, each stored copy is primary evidence.

(g)
Every automated digital storage file in a computer resource is primary evidence.

(h)
A person possesses many placards printed from one original. Any placard is primary evidence of another placard’s content but not of the original.

What constitutes secondary evidence?

Secondary evidence includes:

(a)
Certified copies;

(b)
Mechanically reproduced copies ensuring accuracy;

(c)
Copies compared with originals;

(d)
Counterparts against non-executing parties;

(e)
Oral accounts by a person who saw the original;

(f)
Oral admissions;

(g) Written admissions;

(h)
Expert summaries of numerous documents.

How should documents ordinarily be proved?

Documents must be proved by primary evidence except in cases where secondary evidence is allowed.

When may secondary evidence of documents be given?

Secondary evidence may be given when:

(a)
The original is in the possession or power of the opposite party, or a person beyond reach, or legally bound to produce it but fails to do so after notice;

(b)
The contents of the original are admitted in writing;

(c)
The original is destroyed, lost, or cannot be produced without fault;

(d)
The original is not easily movable;

(e)
The original is a public document;

(f)
The original is one where certified copies are admissible;

(g)
The originals consist of numerous accounts and the general result is to be proved.

What is the rule regarding electronic or digital records as evidence?

No electronic or digital record shall be denied admissibility merely for being electronic. It has the same legal effect and validity as other documents, subject to prescribed provisions.

How can the contents of electronic records be proved?

The contents of electronic records may be proved in accordance with the relevant provisions on electronic evidence.

When is an electronic record admissible as evidence?

An electronic record printed, stored, recorded, or copied in any digital medium shall be admissible if certain conditions are satisfied:

(a)
It was produced during regular use;

(b)
The information was regularly fed in ordinary course;

(c)
The device was functioning properly;

(d)
The information reproduced is derived from regularly fed data.

(e)
All devices used collectively form a single system.

(f)
A certificate must identify the record, describe production, give particulars of the device, and be signed by the responsible person or expert.

What are the rules regarding notice to produce documents?

Secondary evidence of certain documents cannot be given unless notice to produce is given to the opposite party. However, no notice is required when:

(a)
The document itself is a notice;

(b)
The adverse party must know it will be required;

(c)
The original was obtained by fraud or force;

(d) The original is in Court;

(e)
The adverse party admits loss;

(f)
The holder is beyond the Court’s reach.

How is the handwriting or signature of a person proved?

If a document is alleged to be signed or written by a person, the handwriting or signature must be proved to be that person’s handwriting.

How is an electronic signature proved?

Except in the case of a secure electronic signature, the electronic signature of a subscriber must be proved to be his signature.

How is the execution of a document required by law to be attested proved?

A document required by law to be attested shall not be used as evidence until at least one attesting witness is called, if available and capable. However, for a registered non-will document, calling a witness is unnecessary unless execution is specifically denied.

What if no attesting witness can be found?

It must be proved that the attestation is in the handwriting of one witness and that the signature of the executing person is in his handwriting.

What if a party admits execution of an attested document?

Admission of execution by a party is sufficient proof of execution as against him, even if attestation was required.

What happens when the attesting witness denies or forgets execution?

The execution of the document may then be proved by other evidence.

How is an attested document not required by law to be attested proved?

Such a document may be proved as if it were unattested.

How may a Court compare handwriting, signatures, or seals?

(a)
The Court may compare any signature, writing, or seal with others admitted or proved to be that person’s, even if produced for no other purpose.

(b)
The Court may direct any person in Court to write words or figures for comparison.

(c)
This rule applies with necessary modifications to finger impressions.

How is a digital signature verified?

The Court may direct:

(a)
The person concerned, the Controller, or the Certifying Authority to produce the Digital Signature Certificate; or

(b)
Any other person to apply the public key listed in the certificate to verify the digital signature.

Therefore, in essence, the BSA preserves the core principles of the law of evidence while embracing technological advancement. By defining when facts need not be proved and providing structured rules for oral and documentary evidence, it strengthens the fairness and efficiency of judicial proceedings. The BSA ensures that justice remains rooted in truth, relevance and reliability even in an increasingly digital age.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Proving the Truth appeared first on Greater Kashmir.

When is the opinion of experts considered relevant?

When the Court has to form an opinion upon a point of foreign law, science, art, or any other field, or as to the identity of handwriting or finger impressions, the opinions of persons specially skilled in such foreign law, science, art, or field, or in questions as to handwriting or finger impressions, are relevant facts. Such persons are called experts.

If the question is whether the death of A was caused by poison, what expert opinion is relevant?

The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

If the question is whether A, at the time of doing a certain act, was incapable of knowing the nature of the act due to unsoundness of mind, what expert opinion is relevant?

The opinions of experts on whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness usually renders persons incapable of knowing the nature of their acts or knowing that their acts are wrong or contrary to law, are relevant.

If the question is whether a certain document was written by A, and another document admitted to have been written by A is produced, what expert opinion is relevant?

The opinions of experts on whether the two documents were written by the same or different persons are relevant.

When is the opinion of the Examiner of Electronic Evidence relevant?

When the Court has to form an opinion on any matter relating to information transmitted or stored in any computer resource or electronic or digital form, the opinion of the Examiner of Electronic Evidence, referred to in the Information Technology Act, is a relevant fact.

What authority does the Central Government have in relation to Examiners of Electronic Evidence?

The Central Government may, by notification in the Official Gazette, specify any Department, body, or agency of the Central or State Government as an Examiner of Electronic Evidence for providing expert opinion on electronic evidence before any court or authority.

What is the nature and duty of an expert witness?

An expert is not a witness of fact but of advisory character. His duty is to furnish the Court with scientific criteria to test conclusions. The Court must independently judge such evidence and not subjugate its own judgment to that of the expert. (State of Karnataka v. J. Jayalalitha; Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy; Prem Sagar Manocha v. State NCT of Delhi)

Is expert evidence conclusive?

No. Expert evidence is not always conclusive because human judgment is fallible. For example, fingerprint identification is highly reliable, but handwriting identification is less perfect. (Basheera Begam v. Mohd. Ibrahim)

What should a court do when no expert opinion is available?

The court may refer to authoritative textbooks and use its own experience and knowledge. (Ajay Kumar Parmar v. State of Rajasthan; Goel Ganga Developers India (P) Ltd. v. Union of India; Tomaso Bruno v. State of U.P.)

How should the opinion of a handwriting expert be treated?

It should be received with caution, as such evidence is fallible. It may be accepted if supported by internal or external evidence relating to the writing in question. (Ram Narain v. State of U.P.; Baru Ram v. Prasanni; S.P.S. Rathore v. CBI; Padum Kumar v. State of U.P.; Basheera Begam v. Mohd. Ibrahim)

What is the duty of an expert witness in court?

An expert must furnish the court with a reasoned report based on expertise so the court can form its own independent judgment. Opinion evidence is advisory and not binding. (Pattu Rajan v. State of T.N.)

How is medical evidence treated vis-à-vis ocular (eye-witness) evidence?

Cogent and credible ocular evidence prevails over contrary medical evidence. (Ravi Kumar v. State of Punjab, 2005.)

Who is competent to opine about injuries and cause of death?

The doctor who examined the deceased and conducted the post-mortem. (Sahebro Mohan Berad v. State of Maharashtra)

How is expert opinion different from factual testimony?

Expert opinion is based on specialized knowledge and may change with new material, while factual testimony is based on direct observation. The expert must give reasons and materials for his opinion, and the court must assess its correctness. (Prem Sagar Manocha v. State NCT of Delhi)

What is the standard of care expected from a medical professional in cases of alleged medical negligence?

The standard is that of a reasonably competent practitioner in the field. Liability arises only when conduct falls below that standard. (Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd.; Maharaja Agrasen Hospital v. Rishabh Sharma)

What is the value of medical opinion evidence compared to eye-witness testimony?

Medical opinion is corroborative and not conclusive. Unless medical evidence rules out the prosecution version, eye-witness testimony cannot be doubted solely due to inconsistency with medical opinion. (Mallikarjun v. State of Karnataka, 2019.)

When are facts that support or contradict expert opinions relevant?

Facts that are otherwise irrelevant become relevant if they support or are inconsistent with expert opinions.

If the question is whether A was poisoned by a certain poison, what fact is relevant?

The fact that other persons poisoned by the same substance showed similar or dissimilar symptoms as affirmed or denied by experts is relevant.

If the question is whether obstruction to a harbour was caused by a sea-wall, what fact is relevant?

The fact that other similar harbours without such seawalls were obstructed at the same time is relevant.

When is the opinion of a person acquainted with handwriting relevant?

When the court must determine who wrote or signed a document, the opinion of anyone acquainted with that person’s handwriting is relevant.

When is a person said to be acquainted with another’s handwriting?

When he has seen that person write, or received documents written by that person in reply to his own, or in the course of business, habitually dealt with documents written by that person.

If the question is whether a letter is in A’s handwriting, who may give relevant opinions?

B, a merchant who has corresponded with A; C, B’s clerk who handled A’s letters; and D, B’s broker who advised on A’s letters, all may give relevant opinions even if none have seen A write.

When is the opinion of a Certifying Authority relevant?

When the court must form an opinion as to a person’s electronic signature, the opinion of the Certifying Authority that issued the Electronic Signature Certificate is relevant.

When is the opinion of persons on general custom or right relevant?

When the court must form an opinion on the existence of any general custom or right, the opinions of persons likely to know of its existence are relevant.

What does “general custom or right” include?

Customs or rights common to any considerable class of persons.

Is the right of villagers to use the water of a village well a general right?

Yes, it is a general right.

In what matters are the opinions of persons with special knowledge relevant?

When the court must form an opinion regarding:

(a)     the usages and tenets of any body or family,

(b)     the constitution or governance of a religious or charitable foundation, or

(c)     the meaning of words or terms used in particular districts or classes,

the opinions of persons having special means of knowledge thereon, are relevant facts.

When is opinion on the relationship between persons relevant?

When the court must form an opinion about the relationship between two persons, the opinion expressed by conduct of a person with special means of knowledge (like a family member) is relevant.

Can such opinion prove a marriage in divorce or criminal proceedings?

No. Such opinion alone cannot prove marriage in proceedings under the Divorce Act or prosecutions for offences relating to marriage.

Is the fact that A and B were treated as husband and wife relevant to the question of their marriage?

Yes, it is relevant.

Is the fact that A was treated as B’s legitimate son relevant to that question?

Yes, it is relevant.

Are the grounds on which an opinion is based relevant?

Yes, whenever a person’s opinion is relevant, the grounds for it are also relevant.

May an expert describe experiments performed to form his opinion?

Yes, an expert may give an account of such experiments.

Is character relevant in civil cases to prove conduct?

No, in civil cases, character is irrelevant to prove conduct imputed, except when it appears from otherwise relevant facts.

Is good character relevant in criminal cases?

Yes, the fact that an accused is of good character is relevant.

Is evidence of the victim’s previous sexual experience relevant in certain offences?

No, in prosecutions for sexual offences where consent is in issue, the character or previous sexual experience of the victim is not relevant to the issue of consent or its quality.

Is bad character of the accused relevant?

Generally, no. However, if the accused has given evidence of good character, his bad character then becomes relevant.

When is character relevant to affect damages?

In civil cases, character may be relevant to determine the amount of damages the person should receive.

Therefore, the BSA clearly defines when the opinions of third persons and the character of individuals can be considered by the court. It allows expert opinions, opinions of persons familiar with handwriting or customs and certain character evidence only when they genuinely help in finding the truth. At the same time, it restricts the use of such opinions and character evidence to prevent unfair prejudice. Overall, these provisions aim to make the process of proving facts in court more fair, logical and reliable.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.

The post Whispers of the Wise and Mirrors of the Mind appeared first on Greater Kashmir.