Section 162 IEA vs Section 165 BSA — Production of Documents

In India, the duty of a summoned witness to bring a document to Court moved from Section 162 of the Indian Evidence Act, 1872 (IEA) to Section 165 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) on 1 July 2024. Section 165 adds that no Court shall require communications between the Ministers and the President to be produced.

At a glance

What changed

• New — the Minister–President proviso. "Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it." There is no counterpart in s.162 IEA. It is printed after sub-section (3), ending that sub-section with a colon. A reading: in form it follows sub-section (3), but its words ("no Court shall require any communication…") are not limited to translation. Whether it qualifies only sub-section (3) or the whole section has not been decided in any judgment read for this page.
• Minor edit — restructured into sub-sections. The first sentence becomes s.165(1). The second sentence, "The validity of any such objection shall be decided on by the Court.", becomes a proviso: "Provided that the validity of any such objection shall be decided on by the Court." The duty to bring the document "notwithstanding any objection which there may be to its production or to its admissibility" is word for word the same.
• Identical — inspection. "The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility" is unchanged, now as s.165(2).
• Minor edit — translation. The side heading "Translation of documents" is dropped, and the paragraph becomes s.165(3). The offence reference changes from "section 166 of the Indian Penal Code (45 of 1860)" to "section 198 of the Bharatiya Nyaya Sanhita, 2023". BNS s.198 repeats IPC s.166's definition and punishment. Its only textual differences are a comma ("he will, by such disobedience" in the IPC; "he will by such disobedience" in the BNS) and "Court of Justice" becoming "Court" in the illustration. The classification is the same in both First Schedules.
• Unchanged heading. Both read "Production of documents."

Statutory text (relevant extract)

Extract — Section 165(1) and proviso, BSA:

A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility:

Provided that the validity of any such objection shall be decided on by the Court.

Extract — Section 165(3) and final proviso, BSA:

… if the interpreter disobeys such direction, he shall be held to have committed an offence under section 198 of the Bharatiya Nyaya Sanhita, 2023:

Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it.

Extract — Section 162, IEA (the changed words):

… he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

How it works

1. The summons. Section 165 applies to "A witness summoned to produce a document". In criminal matters the summons or written order is issued under s.94 BNSS, which empowers a Court or an officer in charge of a police station to require production of a document, electronic communication or other thing.
2. The duty to bring. If the document is "in his possession or power", the witness "shall … bring it to Court". An objection — to production or to admissibility — does not excuse bringing it (s.165(1)).
3. The Court decides the objection. The validity of the objection "shall be decided on by the Court" (proviso to s.165(1)). The witness does not decide it, and nor does the party who summoned the document.
4. How the Court decides. The Court "if it sees fit" may inspect the document, "unless it refers to matters of State", or may take other evidence (s.165(2)). Privileges that may be raised include affairs of State (s.129), official communications (s.130), professional communications (s.132) and documents another person could refuse to produce (s.136) — see the privileged communications page.
5. Translation. If translation is needed for this purpose, the Court may direct the translator to keep the contents secret unless the document is to be given in evidence. An interpreter who disobeys commits the BNS s.198 offence (s.165(3)).
6. Communications between Ministers and the President. No Court shall require their production (final proviso). The Court's separate power to order production of "any document or thing" when questioning witnesses is in s.168 BSA — see the Judge's power to question page.

Related constitutional text. Article 74(2) of the Constitution provides: "The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court." On a reading of the two texts, Article 74(2) bars inquiry into the advice, while the BSA proviso bars a Court from requiring production of the communications. The words differ, and no judgment read for this page compares them.

What this means in practice

For a witness served with a summons to produce. Bring the document. Raise any objection — privilege, State interest, confidentiality — before the Court, which will decide it. Refusing to bring the document is not the same as objecting to its production.

For a party seeking a government record. Expect a privilege claim by affidavit of the head of the department. Raj Narain (p. 349) holds that the Court may call for a further affidavit and may inspect the document. A communication between the Ministers and the President now falls within the final proviso, and a Court cannot require its production.

For the State. Claim privilege by affidavit of the officer at the head of the department (Raj Narain, p. 349). For a communication between the Ministers and the President, the proviso applies on its words; the affidavit practice described in Raj Narain was developed under s.123 IEA, now s.129 BSA.

For an advocate or client asked by police to produce documents. Production is not privileged under s.132 BSA. However, the Supreme Court has directed that in a criminal case production be before the Court under s.94 BNSS, regulated also by s.165 BSA, with the Court deciding objections after hearing the advocate and the client. Digital devices are to be produced only before the jurisdictional Court (In Re: Summoning Advocates, para 67, directions 2–3).

For a trial court. Record the objection, decide it, and where needed inspect the document or take other evidence (s.165(2)). Where a translator is used, consider a secrecy direction under s.165(3).

Judgments that still matter

BSA s.165 repeats the operative words of IEA s.162 on the duty to bring, the Court's decision on objections and inspection. On a reading of the text, judgments construing those words remain relevant. No judgment read for this page construes the new Minister–President proviso.

State of U.P. v. Raj Narain & Ors., [1975] 3 S.C.R. 333 — 24 January 1975. A. N. Ray C.J. delivered the judgment of the Court for himself, A. Alagiriswami, R. S. Sarkaria and N. L. Untwalia JJ.; K. K. Mathew J. gave a separate concurring opinion. In an election petition, documents including the "Blue Book" of rules for the protection of the Prime Minister on tour were summoned, and the State claimed privilege under s.123 IEA. The majority held that "the foundation of the law behind sections 123 and 162" is that injury to public interest is the reason for exclusion, to be weighed against the public interest in the administration of justice (p. 348). It set out the practice: an objection is raised by an affidavit of the head of the department; the Court may direct a further affidavit; and "If the Court in spite of the affidavit wishes to inspect the document the Court may do so" (p. 349). It set aside the High Court's judgment, which had held that privilege was not claimed by affidavit in the first instance and that the Blue Book was not an unpublished official record, and remitted the matter for the High Court to consider the affidavits and, if it chose, inspect the documents (pp. 349–350). Mathew J., concurring, said: "An overriding power in express terms is conferred on the court under s. 162 to decide finally on the validity of the objection" (p. 358). Why it matters now: the words it construed are in s.165(1)–(2) BSA.

In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues (2025 INSC 1275) — 31 October 2025. K. Vinod Chandran J. wrote the judgment, which is signed by B. R. Gavai C.J.I., K. Vinod Chandran J. and N. V. Anjaria J. On the "ancillary issue" of seizure of documents and digital devices (para 54), the Court held that a summons by a police officer to a lawyer to produce documents relating to his client "can only be for production before Court". The Court is to decide objections and admissibility after hearing the lawyer and any objection by the client under s.132 BSA; "which decision shall be by the Court and not by the officer" (para 58). It directed that in a criminal case production "shall be complied with by production before the Court under Section 94 of the BNSS; being regulated also by Section 165 of the BSA", and in a civil case by s.165 BSA and Order XVI Rule 7 CPC (para 67, directions 2.1–2.2). Why it matters now: it applies s.165 BSA to production by advocates and requires the Court, not the investigating officer, to rule on objections.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". The BSA came into force on 1 July 2024 (S.O. 849(E), 23 February 2024). A proceeding pending on that date applies s.162 IEA, which has no Minister–President proviso. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 162 of the Evidence Act? Section 165 of the Bharatiya Sakshya Adhiniyam, 2023 replaced Section 162 of the Indian Evidence Act, 1872 from 1 July 2024. A witness summoned to produce a document must still bring it to Court if it is in his possession or power, whatever objection there may be, and the Court decides the objection.

What is new in Section 165 BSA? A proviso at the end of the section: no Court shall require any communication between the Ministers and the President of India to be produced before it. The section is also split into sub-sections (1) to (3), and the translator offence now refers to Section 198 BNS instead of Section 166 IPC.

Can a witness refuse to bring a document because he objects to producing it? No. Section 165(1) BSA says the witness shall bring the document to Court notwithstanding any objection to its production or admissibility, and the proviso to sub-section (1) says the validity of the objection shall be decided on by the Court.

Can the Court inspect a document before deciding an objection? Yes, if it sees fit, unless the document refers to matters of State; it may also take other evidence to decide admissibility (Section 165(2) BSA). In State of U.P. v. Raj Narain ([1975] 3 S.C.R. 333, p. 349) the Supreme Court said that if the Court, in spite of an affidavit claiming privilege, wishes to inspect the document, it may do so.

What happens if a translator discloses a document the Court ordered kept secret? Section 165(3) BSA says the interpreter who disobeys the direction is held to have committed an offence under Section 198 BNS, which punishes a public servant who knowingly disobeys a direction of law with intent to cause injury. It carries simple imprisonment up to one year, or fine, or both, and is non-cognizable, bailable and triable by a Magistrate of the first class.

Is the Minister-President proviso the same as Article 74(2) of the Constitution? Not in words. Article 74(2) says the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. The BSA proviso bars a Court from requiring any communication between the Ministers and the President to be produced. How courts will read the two together has not been decided in any judgment read for this page.

Can the police make an advocate hand over a client's documents? In In Re: Summoning Advocates (2025 INSC 1275, para 67) the Supreme Court held that production of documents is not covered by the Section 132 BSA privilege, but directed that in a criminal case production be before the Court under Section 94 BNSS, regulated also by Section 165 BSA, with the Court deciding objections after hearing the advocate and the client.

Which Act applies to a case pending on 1 July 2024? Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. Such a case applies Section 162 IEA, which has no Minister-President proviso.

Related

• Section 165 Evidence Act vs Section 168 BSA — Judge's power to question and order production
• Sections 121–132 Evidence Act vs Sections 127–137 BSA — privileged communications
• Section 91 CrPC vs Section 94 BNSS — summons to produce documents
• Sections 166A–166B IPC vs BNS — public servant disobeying direction
• Proving documents — photocopies and secondary evidence, BSA 56–64 vs IEA 61–66
• Evidence Act to BSA — full section mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text, cross-checked against the official text): Sections 129, 165, 166, 167 and 170; commencement from footnote 1 to Section 1 of the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 123 and 162 to 165.
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Section 198. Indian Penal Code, 1860 (India Code text): Section 166.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 94; First Schedule row for Section 198 BNS. Code of Criminal Procedure, 1973: First Schedule row for Section 166 IPC.
• Constitution of India: Article 74(2).
• Judgments read in full text (Veritect Supreme Court corpus): State of U.P. v. Raj Narain & Ors. (1975_3_333_364_EN.md, with the report PDF); In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues (supreme_court/judgment_md/Diary_35619-2025_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.