Sections 56 and 57 Evidence Act vs Sections 51 and 52 BSA — Judicial Notice

In India, Sections 51 and 52 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 56 and 57 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. Judicially noticed facts still need no proof, but the Section 52 list drops colonial items and adds international treaties, laws with extra-territorial operation and Tribunal seals.

At a glance

Both sections sit in the chapter "Facts which need not be proved" — Chapter III of Part II in the IEA and Chapter III of Part III in the BSA.

What changed

• Identical — Section 51 (IEA 56): "No fact of which the Court will take judicial notice need be proved."
• Minor edit — heading of Section 52: "Facts of which Court must take judicial notice" becomes "Facts of which Court shall take judicial notice". The operative words, "The Court shall take judicial notice of the following facts", are unchanged except that the BSA adds "namely".
• Expanded — clause (a): "All laws in force in the territory of India" becomes "all laws in force in the territory of India including laws having extra-territorial operation".
• New — clause (b): "international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies".
• Omitted — IEA clauses (2), (3) and (5): Acts of the United Kingdom Parliament; "Articles of War for the Indian Army, Navy or Air Force"; and "The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland".
• Modified — clause (c) (IEA 57(4)): the IEA covered the course of proceeding "of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States". The BSA covers "the Constituent Assembly of India, of Parliament of India and of the State Legislatures".
• Modified — clauses (d) and (e) (IEA 57(6)): the IEA began "All seals of which English Courts take judicial notice", then "the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative". The BSA reads "(d) the seals of all Courts and Tribunals" — Tribunals are added, and the words limiting Courts to those in India or established by Indian authority are gone. Clause (e) keeps Admiralty and Maritime Jurisdiction and Notaries Public, and covers seals authorised "by the Constitution, or by an Act of Parliament or State Legislatures, or Regulations having the force of law in India" (the IEA also referred to an Act of the UK Parliament).
• Minor edit / Modified — clauses (g), (i), (j) and (k): "State" becomes "country" in (g) and (j); "The territories under the dominion of the Government of India" becomes "the territory of India" in (i); and "of all advocates, attorneys, proctors, vakils, pleaders and other persons" becomes "of advocates and other persons" in (k).
• Minor edit — sub-section (2): the two closing paragraphs of Section 57 (books of reference; power to refuse) are joined into one sub-section; the words are the same, with "In all these cases" replaced by "In the cases referred to in sub-section (1)" and the second paragraph's opening "If the Court" joined to the first as "and if the Court".

Statutory text (relevant extract)

Extract, Section 57 IEA (repealed from 1 July 2024), clauses (1) and (6):

(1) All laws in force in the territory of India;

(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative; …

Extract, Section 52 BSA, clauses (a), (b) and (d), and sub-section (2):

(a) all laws in force in the territory of India including laws having extra-territorial operation;

(b) international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies;

(d) the seals of all Courts and Tribunals;

(2) In the cases referred to in sub-section (1) and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference and if the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

How it works — the steps

1. Is the fact one the Court "shall" notice? If it falls within a clause of Section 52(1), the Court is bound to take judicial notice of it, and under Section 51 it need not be proved.
2. If not, may the Court notice it anyway? On a reading of its words, Section 51 covers any fact "of which the Court will take judicial notice", not only the listed ones. In Onkar Nath (1977) the Supreme Court held that the Section 57 list is not exhaustive and that notorious facts need no formal proof. Section 52 BSA keeps the same structure, so on a reading of the text the same approach is open.
3. Aid from books or documents. For the listed facts, and on "all matters of public history, literature, science or art", the Court may consult appropriate books or documents of reference (Section 52(2)).
4. Burden on the party asking. If a party asks the Court to take judicial notice, the Court may refuse until that party produces the book or document the Court considers necessary (Section 52(2)).

Neighbouring provisions (not covered in full here): Section 53 BSA (IEA 58) — facts admitted by the parties or their agents at or before the hearing, or deemed admitted by their pleadings, need not be proved, though the Court may require other proof; Section 74 BSA (IEA 74 and 75) — public and private documents.

What this means in practice

For advocates

• A law in force need not be proved; Section 52(1)(a) now names laws with extra-territorial operation expressly.
• A treaty, agreement or convention entered into by India falls within Section 52(1)(b); since the Court may still ask for the document under Section 52(2), have the text ready.
• Tribunal seals are now noticed under Section 52(1)(d).
• For a custom, do not assume notice. Ujagar Singh requires proof unless repeated judicial recognition has made the custom part of the law of the land.

For trial courts

• Where a noticed document (such as a report) contains contested facts, Kalpana Mehta indicates those facts must be proved in the ordinary way.

Judgments that still matter

Ujagar Singh v. Mst. Jeo, [1959] Supp. 2 S.C.R. 781 (1959 INSC 47) — 23 April 1959. A three-Judge Bench (judgment by Sarkar J.) considered whether, under Punjab customary law, collaterals excluded a sister from inheriting her brother's self-acquired property. The Court held that "the ordinary rule is that all customs, general or otherwise, have to be proved", and that when a custom has been repeatedly recognised by the courts, "it passes into the law of the land and the proof of it then becomes unnecessary under s. 57(1) of the Evidence Act". Faced with "a formidable array of authorities in support of either view", it declined to take judicial notice of the custom stated in Rattigan's Digest and dismissed the appeal. The report shows no paragraph numbers. Section 52(1)(a) BSA repeats "all laws in force in the territory of India", the words on which that reasoning rests.

Onkar Nath & Ors. v. The Delhi Administration, [1977] 2 S.C.R. 991 (1977 INSC 55) — 15 February 1977. Y.V. Chandrachud, P.K. Goswami and P.N. Shinghal JJ. (judgment by Chandrachud J.) considered convictions of railway employees under the Defence of India Rules, 1971 for inciting a strike. The Court held that the list in Section 57 "is not exhaustive" and that "the purpose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice". It said "Judicial notice, in such, matters, takes the place of proof and is of equal force", and that the courts below were justified in assuming, without formal evidence, that a railway strike was imminent on 5 May 1974 and began on 8 May 1974. The prosecution nonetheless failed: the only relevant witness gave a gist of the speeches rather than the words used, and whether the strike was in connection with an industrial dispute was "a matter of evidence" on which none was led, so "The charge must therefore fail". The report shows no paragraph numbers.

Kalpana Mehta and Others v. Union of India and Others, [2018] 4 S.C.R. 1 — 9 May 2018. A five-Judge Bench answered a reference on reliance on a Parliamentary Standing Committee report. In the opinion of Dipak Misra CJI (for himself and A.M. Khanwilkar J.), Section 57 "by employing the words 'shall', casts an obligation upon the Courts to take judicial notice" of the listed facts (para 121); a committee report is a public document admissible under Section 74, and judicial notice can be taken of it under Section 57(4) (paras 123, 138(ii)); but "Taking judicial notice of the Parliamentary Standing Committee report can only be to the extent that such a report exists" (para 127), and the truth of a contestable matter of fact stated in it "has to be proved in the manner known to law" (para 125). Ashok Bhushan J., in a separate opinion in substantial agreement with the conclusions, held that committee proceedings including its report are covered by "course of proceeding of Parliament" (para 64). D.Y. Chandrachud J. wrote a separate opinion for himself and A.K. Sikri J. Section 52(1)(c) BSA keeps "the course of proceeding … of Parliament of India".

Does the old case law still apply? Section 51 repeats Section 56, and the retained clauses of Section 52 repeat the corresponding clauses of Section 57, so, on a reading of the text, judgments construing those words remain relevant.

Which law applies to your case

Section 170(2) BSA provides that if, immediately before the BSA came into force, any application, trial, inquiry, investigation, proceeding or appeal was pending, it "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force". The BSA commenced on 1 July 2024. On a reading of Section 170(2), the test for evidence is whether the matter was pending on that date, not when the underlying events occurred. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Sections 56 and 57 of the Evidence Act? Section 51 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 56 of the Indian Evidence Act, 1872, and Section 52 replaces Section 57, from 1 July 2024. Section 51 repeats that no fact of which the Court will take judicial notice need be proved. Section 52(1) lists the facts the Court shall judicially notice and Section 52(2) keeps the rule on books of reference.

What changed in the list of facts the Court must judicially notice? Section 52(1) BSA drops the items tied to the United Kingdom and the colonial period — Acts of the UK Parliament, the course of its proceedings, Articles of War, the British Sovereign's accession and sign manual, and seals of which English Courts take judicial notice. It adds laws having extra-territorial operation (clause (a)), international treaties, agreements, conventions and decisions made by India at international bodies (clause (b)), and the seals of all Tribunals (clause (d)).

Does the Court have to take judicial notice of an international treaty? Under Section 52(1)(b) BSA, the Court shall take judicial notice of any international treaty, agreement or convention with a country or countries by India, and of decisions made by India at international associations or other bodies. Section 57 of the Evidence Act had no such clause. On a reading of Section 51, such a fact need not be proved, though the Court may ask for a book or document under Section 52(2).

Is the list in Section 52 BSA exhaustive? In Onkar Nath v. Delhi Administration (1977), construing Section 57 of the Evidence Act, the Supreme Court held that the list is not exhaustive: the section tells the Court what it shall notice rather than exhausting what it may notice, and notorious facts need no formal proof. Section 52 BSA keeps the same structure, so on a reading of the text that reasoning remains relevant.

Can a party insist that the Court take judicial notice of a fact? No. Under Section 52(2) BSA, if the Court is called upon by any person to take judicial notice of a fact, it may refuse to do so until that person produces any book or document it considers necessary. The same rule was the closing paragraph of Section 57 of the Evidence Act.

Can a parliamentary committee report be judicially noticed? In Kalpana Mehta v. Union of India (2018), decided under Section 57(4) of the Evidence Act, the opinion of Dipak Misra CJI (for himself and Khanwilkar J.) held that judicial notice can be taken of a Parliamentary Standing Committee report, but only to the extent that the report exists; contested facts stated in it must be proved. Section 52(1)(c) BSA covers the course of proceeding of Parliament of India and the State Legislatures.

Does judicial notice cover customs? Only in limited cases. In Ujagar Singh v. Mst. Jeo (1959), the Supreme Court held that all customs, general or otherwise, must ordinarily be proved, unless by repeated recognition by the courts a custom has become entitled to judicial notice. It declined to notice a Punjab custom because court decisions on it conflicted.

Which law applies to a case pending on 1 July 2024? Section 170(2) BSA says that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that text, Section 57 continues to govern judicial notice in such pending matters.

Related

• Section 3 Evidence Act vs BSA — Definitions
• Section 114 Evidence Act vs BSA — Court Presumptions
• Proving documents, photocopies and secondary evidence — BSA 56-64 vs IEA 61-66
• Admissions and confessions — IEA 17-31 vs BSA
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA master table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 51, 52, 53, 74 and 170; commencement footnote to Section 1 (official text).
• Indian Evidence Act, 1872 (India Code text): Sections 56, 57 (with footnotes), 58 and 74.
• Judgments read in full text: Ujagar Singh v. Mst. Jeo (S_1959_2_781_797_EN.md); Onkar Nath v. The Delhi Administration (1977_2_991_1006_EN.md); Kalpana Mehta v. Union of India (2018_4_1_254_EN.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.