Sections 76–90A IEA vs Sections 75–93 BSA — Certified Copies, Official Documents and Presumptions as to Documents

In India, Sections 75 to 93 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 76 to 90A of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. Colonial routes are removed, electronic Gazettes and digital signatures are added, and the "proper custody" test for old documents is reworded.

At a glance

These are rules of proof and presumption, not offences, so no First Schedule classification applies. Sections 74 and 75 IEA (public and private documents) are merged into Section 74 BSA and are outside this page. The BSA commenced on 1 July 2024 under S.O. 849(E) dated 23 February 2024.

What changed

Proof of public and official documents (IEA 76–78 → BSA 75–77)

• Minor edit — Section 75: "legal fees there for" becomes "legal fees therefor"; "authorized" becomes "authorised" (twice).
• Modified — Section 77 (IEA 78):
  • Clause (a): "the Central Government in any of its departments, or of the Crown Representative or of any State Government" becomes "the Central Government in any of its Ministries and Departments or of any State Government or any Department of any State Government or Union territory Administration"; the Crown Representative printing route is removed.
  • Clause (b): "the proceedings of the Legislatures" becomes "the proceedings of Parliament or a State Legislature".
  • Clause (c): proclamations, orders or regulations of "Her Majesty or by the Privy Council", proved by the London Gazette or the Queen's Printer, become those "issued by the President of India or the Governor of a State or the Administrator or Lieutenant Governor of a Union territory, by copies or extracts contained in the Official Gazette".
  • Clause (d): recognition "in some Central Act" becomes "in any Central Act".
  • Clause (e): "a municipal body" becomes "a municipal or local body".

Presumptions (IEA 79–90A → BSA 78–93)

• Narrowed — Section 78 (IEA 79): the words "or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government" are omitted; the section is split into sub-sections (1) and (2).
• Minor edit — Section 79 (IEA 80): the three presumptions are numbered (i) to (iii); the heading adds ", etc.".
• Modified — Section 80 (IEA 81): the London Gazette, the Official or Government Gazette "of any colony, dependency or possession of the British Crown" and "a copy of a private Act of Parliament of the United Kingdom printed by the Queen's Printer" are omitted; the presumption now covers "the Official Gazette", newspapers and journals, and documents directed by law to be kept. A new Explanation defines proper custody "for the purposes of this section and section 92".
• Expanded — Section 81 (IEA 81A): "electronic record" becomes "electronic or digital record" throughout, with its own proper-custody Explanation "for the purposes of this section and section 93".
• Omitted — Section 82 IEA (documents admissible in England or Ireland without proof of seal or signature) and Section 88 IEA (telegraphic messages): no BSA counterpart.
• Minor edit — Section 83 (IEA 84): the Gazette text adds a comma ("presume the genuineness of, every book").
• Identical — Section 84 (IEA 85): the body and the section heading ("Presumption as to powers-of-attorney") are the same; only the IEA's arrangement of sections printed "Presumptions".
• Expanded — Section 85 (IEA 85A): "electronic signature" becomes "electronic or digital signature".
• Minor edit — Section 86 (IEA 85B): "proceedings" becomes "proceeding"; "secure digital signature" in sub-section (2) becomes "secure electronic signature"; "cerate" is corrected to "create".
• Minor edit — Section 87 (IEA 85C): "in a Electronic Signature Certificate" becomes "in an Electronic Signature Certificate".
• Modified — Section 88 (IEA 86): "any country not forming part of India or of Her Majesty's Dominions" becomes "any country beyond India"; the Political Agent paragraph becomes sub-section (2), referring to "any territory or place outside India".
• Minor edit — Section 90 (IEA 88A): the Explanation adopting the Information Technology Act, 2000 meanings of "addressee" and "originator" is not carried over. Section 2(2) BSA gives undefined words their meanings in that Act, so, on a reading of the text, the meaning is unchanged.
• Modified — Section 92 (IEA 90) and Section 93 (IEA 90A): see the next heading. Illustrations (a) to (c) to Section 92 now read "The custody shall be proper" (IEA: "The custody is proper").
• Identical — Sections 76, 82, 89 and 91 (IEA 77, 83, 87 and 89).

The proper-custody test. Section 90 IEA explained that documents are in proper custody "if they are in the place in which, and under the care of the person with whom, they would naturally be". The Explanation to Section 80 BSA, which Section 92 adopts, says a document is in proper custody "if it is in the place in which, and looked after by the person with whom such document is required to be kept". The Explanation to Section 81 (adopted by Section 93) uses the same words for electronic records. Both Acts keep the saving that "no custody is improper if it is proved to have had a legitimate origin", or if the circumstances make such an origin probable. On a reading of the text, the test moves from where a document would naturally be to where it is required to be kept; no judgment on the new words was found.

Statutory text (relevant extract)

Extract, Explanation to Section 90 IEA (repealed from 1 July 2024):

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin …

Extract, Explanation to Section 80 BSA:

For the purposes of this section and section 92, document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin …

How it works — "shall presume" and "may presume"

Section 2(1)(h) and (l) BSA carry over the two kinds of presumption. Where the Court "may presume" a fact, it "may either regard such fact as proved, unless and until it is disproved or may call for proof of it". Where it "shall presume", it "shall regard such fact as proved, unless and until it is disproved".

• "Shall presume" (mandatory, rebuttable): Sections 78 (certified copies), 79 (records of evidence and confessions), 80 and 81 (Gazettes and documents kept under law), 82 (Government maps), 83 (law collections and reports), 84 (powers-of-attorney), 85 (electronic agreements), 86 (secure electronic records and signatures, "unless contrary is proved"), 87 (Electronic Signature Certificates) and 91 (documents not produced after notice).
• "May presume" (discretionary): Sections 88 (foreign judicial records), 89 (books, maps and charts), 90 (electronic messages), 92 (thirty-year-old documents) and 93 (five-year-old electronic records).

Conditions built into the text. Section 78 applies only if the document "is substantially in the form and purports to be executed in the manner directed by law". Sections 80, 81, 92 and 93 require production "from proper custody". Section 82 excludes "maps or plans made for the purposes of any cause", which "must be proved to be accurate". Section 90 extends to what was sent, but "the Court shall not make any presumption as to the person by whom such message was sent". Section 86(2)(b) confines the electronic presumptions to secure records and secure signatures.

Illustrations to Section 92. Custody is proper where (a) a long-time possessor of land produces his title deeds, (b) a mortgagee produces deeds while the mortgagor is in possession, and (c) a connection of B produces deeds B deposited with him for safe custody.

What this means in practice

For a party relying on an old deed or will

• Produce the original. On Lakhi Baruah (below), a certified copy does not attract the thirty-year presumption unless secondary evidence is first admissible and the copy itself comes from proper custody.
• Lead evidence of custody that meets the new wording — where, and with whom, the document "is required to be kept". Where the document is not with that person, rely on the saving words (legitimate origin, or circumstances making it probable).
• The presumption goes to signature, execution and attestation, not to the truth of the contents (Ibrahim Uddin, below). Prove recitals of title, pedigree or possession independently.

For a party proving Government action or legislation

• Prove Central or State notifications by departmental records certified by the head of the Department, or by a document purporting to be printed by order of the Government (Section 77(a)); Union territory Administrations are now named.
• An electronic or digital version purporting to be the Official Gazette is presumed genuine if kept substantially in the form required by law and produced from proper custody (Section 81).

For a party relying on a power of attorney

• A power of attorney executed before and authenticated by a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government attracts the mandatory presumption in Section 84.

For electronic records

• On a reading of the text, the presumptions in Sections 85 to 87 and 90 go to what the Court presumes about an electronic record, not to its admissibility, which Sections 61 to 63 BSA address — see the electronic-evidence pages linked below.

Judgments that still matter

Sri Lakhi Baruah and Others v. Sri Padma Kanta Kalita and Others, [1996] 2 S.C.R. 1043 — 26 February 1996. G. N. Ray and B. L. Hansaria JJ. (judgment by Ray J.) heard defendants who relied on the Section 90 presumption for a 1950 sale deed produced only as a certified copy, where the plaintiffs' case was that the deed was forged. The Court said Section 90 "is founded on necessity and convenience" because proof of old handwriting and execution is difficult (report pp. 1050–1051). It held that the presumption "does not apply to a copy or a certified copy even though thirty years old"; only if a foundation is laid for secondary evidence under Section 65 by proof of loss or destruction of the original, and the old copy comes from proper custody, may the signature authenticating the copy be presumed genuine (p. 1051). The Court may refuse the presumption where there is occasion to doubt due execution; on a definite plea of forgery, the original had to be produced (p. 1052). The appeal was dismissed with costs (p. 1052). The report shows no paragraph numbers.

Union of India v. Ibrahim Uddin and Another, [2012] 8 S.C.R. 35 — 17 July 2012. Dr. B. S. Chauhan and Dipak Misra JJ. (judgment by Chauhan J.) heard the Union's appeal in a title suit over land. Summing up, the Court held that the presumption under Section 90 for a thirty-year-old document from proper custody "relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it", and that the truth of the contents, or whether the document was acted upon, "have to be proved like any other fact" (para 69(iv)). The appeal was allowed, the first and second appellate decrees were set aside and the trial court's decree restored (para 70).

Jugraj Singh and Anr. v. Jaswant Singh and Ors., [1971] 1 S.C.R. 38 — 16 March 1970. A Bench of M. Hidayatullah C.J., A. N. Ray and I. D. Dua JJ. (judgment by Hidayatullah C.J.) considered a sale deed executed under powers of attorney granted in California. The Court held that the first power of attorney was not properly authenticated, but that the second was executed before a Notary Public who authenticated it as required by the law of California. That the Notary did not record identifying the executant did not matter: "There is a presumption of regularity of official acts", and the second power of attorney was "valid and effective both under s. 85 of the Indian Evidence Act and s. 33 of the Indian Registration Act" (report p. 43). The appeal was dismissed with costs (last page). The report shows no paragraph numbers.

Sections 84 and 92 BSA repeat the operative words of Sections 85 and 90 IEA, so on a reading of the text these judgments remain relevant to the new sections. Whether the reworded proper-custody Explanation changes the result in any case is a question for the courts; no judgment applying Sections 75 to 93 BSA was found.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". On a reading of that provision, a suit pending on 1 July 2024 applies Sections 76 to 90A IEA, including the old proper-custody wording, and one begun afterwards applies Sections 75 to 93 BSA. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What are the BSA equivalents of Sections 76 to 90A of the Evidence Act? Sections 75 to 93 of the Bharatiya Sakshya Adhiniyam, 2023 replace Sections 76 to 90A of the Indian Evidence Act, 1872 from 1 July 2024. Sections 76 to 85, other than Section 82, move one place down (Section 81A becomes Section 81 and Section 85 becomes Section 84), the electronic sections 85A to 85C become Sections 85 to 87, and from Section 86 onward the numbers move two places up (Section 90 becomes Section 92 and Section 90A becomes Section 93). Sections 82 (documents admissible in England or Ireland) and 88 (telegraphic messages) have no BSA counterpart.

What is the BSA equivalent of Section 90 of the Evidence Act on thirty-year-old documents? Section 92 BSA. Where a document purporting or proved to be thirty years old is produced from custody the Court considers proper, the Court may presume that the signatures and handwriting are genuine and that it was duly executed and attested. The presumption is discretionary ("may presume"), as it was under Section 90 IEA.

Has the meaning of 'proper custody' changed under the BSA? The wording has. The Explanation to Section 90 IEA treated documents as in proper custody if they were where, and with whom, they "would naturally be". The Explanation to Section 80 BSA, applied to Section 92, refers to the place in which, and the person by whom, the document "is required to be kept". Both keep the rule that custody is not improper if it had a legitimate origin or such an origin is probable.

Does the thirty-year presumption apply to a certified copy? In Sri Lakhi Baruah v. Sri Padma Kanta Kalita, [1996] 2 S.C.R. 1043, the Supreme Court held that the presumption under Section 90 IEA does not apply to a copy or certified copy, even if thirty years old. Only if a foundation is laid for secondary evidence by proof of loss or destruction of the original, and the old copy comes from proper custody, may the signature authenticating the copy be presumed genuine.

Does the Section 92 BSA presumption prove that the contents of an old document are true? No. In Union of India v. Ibrahim Uddin, [2012] 8 S.C.R. 35, the Supreme Court held that the presumption under Section 90 IEA relates to the signature, execution and attestation of a document, that is, its genuineness, and not to the correctness of every statement in it (para 69(iv)). Section 92 BSA repeats the operative words.

Is a power of attorney authenticated by a Notary Public presumed to be valid? Section 84 BSA (formerly Section 85 IEA) directs the Court to presume that a document purporting to be a power-of-attorney, executed before and authenticated by a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government, was so executed and authenticated. In Jugraj Singh v. Jaswant Singh, [1971] 1 S.C.R. 38, a power of attorney sworn before a California Notary Public was held valid under Section 85 IEA.

Is an e-Gazette presumed genuine under the BSA? Yes, subject to form and custody. Section 81 BSA directs the Court to presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or directed by law to be kept by any person, if it is kept substantially in the form required by law and produced from proper custody. Section 81A IEA said "electronic record".

Which law applies to a suit or trial that was pending on 1 July 2024? Section 170(2) BSA provides that a trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under S.O. 849(E), so Sections 76 to 90A IEA continue to govern those matters.

Related

• Proving documents, photocopies and secondary evidence — BSA 56-64 vs IEA 61-66
• Sections 67-73A IEA vs Sections 65-73 BSA — Proof of execution and attestation
• Section 65A-65B IEA vs Sections 62-63 BSA — Admissibility of electronic records
• Sections 62-65B IEA vs Sections 57-63 BSA — Electronic evidence framework
• Section 114 IEA vs Section 119 BSA — Court presumptions
• Evidence Act to BSA — master mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 2(1)(h) and (l), 2(2), 74 to 93 and 170; arrangement of sections and commencement footnote (S.O. 849(E)) from the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 74 to 90A with footnotes.
• Judgments read in full text: Sri Lakhi Baruah v. Sri Padma Kanta Kalita (1996_2_1043_1052_EN.md); Union of India v. Ibrahim Uddin (2012_8_35_94_EN.md); Jugraj Singh v. Jaswant Singh (1971_1_38_45_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.