What happens when a party walks into an Indian courtroom holding a certified copy of a judgment from a court thousands of kilometres away, in a legal system Indian judges have no independent way of verifying? Section 88 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers that narrow but recurring problem — not by deciding whether the foreign judgment binds anyone in India, but by easing the much smaller question of whether the copy in front of the court is a genuine, accurate reproduction of what a foreign court actually recorded.
That distinction matters more than it looks. Litigants and even practitioners sometimes conflate "the copy is presumed genuine" with "the judgment is presumed enforceable" — and Section 88 has nothing to say about the second question at all.
88. Presumption as to certified copies of foreign judicial records.
(1) The Court may presume that any document purporting to be a certified copy of any judicial record of any country beyond India is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.
(2) An officer who, with respect to any territory or place outside India is a Political Agent therefor, as defined in clause (43) of section 3 of the General Clauses Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.
Section 88 corresponds to Section 86 of the Indian Evidence Act, 1872, and while the certification mechanism itself is untouched, the drafting has been quietly modernised. The 1872 text spoke of "any country not forming part of India or of Her Majesty's Dominions" — BSA 88 simply says "any country beyond India." This is the same decolonising cleanup already seen in Section 80's dropped references to the "London Gazette" and colonial "Government Gazette," confirmed by comparing the text above (sourced independently from vidhijudicial.com and writinglaw.com) against the original 1872 wording. The certification mechanics of both subsections are otherwise identical to their predecessor.
Two Layers, Each Solving a Different Problem
Subsection (1) is the operative presumption. It lets a court presume — on a discretionary "may presume" basis, never mandatory — that a certified copy of a foreign judicial record is genuine and accurate, but only if the certification itself follows a manner that the Central Government's own representative in that country confirms is the manner commonly used there for certifying judicial copies. In other words, the presumption is not free-standing; it is bootstrapped entirely on a second, independent certification — from an Indian government representative abroad — vouching for the certifying process itself.
Subsection (2) exists purely to answer a definitional question subsection (1) creates: who counts as "any representative of the Central Government" in a foreign territory? Rather than leaving that open to dispute, it borrows a ready-made answer from Section 3, clause (43) of the General Clauses Act, 1897, and deems a Political Agent for that territory to be the Central Government's representative for Section 88's purposes.
Why This Section Cannot Be Mistaken for a Foreign-Judgment Enforcement Rule
The temptation to over-read Section 88 usually comes from a different, much heavier body of law: Sections 13 and 14 of the Code of Civil Procedure, 1908, which govern when a foreign judgment is conclusive and binding on Indian courts. In Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451, the Supreme Court held that a foreign matrimonial decree obtained from the Circuit Court of St. Louis County, Missouri was not enforceable in India, because the ground of divorce was not one recognised under Indian law and the proceedings had not been genuinely contested on the merits. Nothing about Section 88 BSA (or its predecessor, Section 86 IEA) played any role in that outcome — the Missouri decree's authenticity as a document was never the issue; its legal effect in India was.
| Question | Governed By |
|---|---|
| Is this piece of paper a genuine, accurate copy of what the foreign court actually recorded? | Section 88, Bharatiya Sakshya Adhiniyam, 2023 |
| Is the foreign judgment itself conclusive and binding in India? | Sections 13 and 14, Code of Civil Procedure, 1908 |
A litigant can clear Section 88's threshold entirely — the copy is accepted as a genuine, accurate reproduction of the foreign record — and still lose on enforceability if the judgment fails any of the five grounds under Section 13 CPC, exactly as happened to the husband in Y. Narasimha Rao. Conversely, a foreign judgment that would otherwise satisfy Section 13 CPC is worthless in an Indian proceeding if the party cannot first get it admitted as a document at all — which is precisely the gap Section 88 exists to close.
A Practical Illustration
A creditor seeks to rely on a judgment obtained against a debtor in a court in the United Arab Emirates. The creditor produces a copy certified by the UAE court registry in the manner that court commonly uses, and separately obtains a certificate from the Indian Embassy in the UAE confirming that this is indeed the standard certification practice there. Under Section 88, the Indian court may presume the copy genuine and accurate without requiring the creditor to independently prove UAE judicial certification procedure through expert testimony. Whether that UAE judgment can actually be enforced against the debtor's assets in India is then a wholly separate battle, fought under Section 44A CPC (for reciprocating territories) or a fresh suit under Section 13 CPC — Section 88 has already done its narrow job by that point.
Key Takeaways
- Section 88 BSA corresponds to Section 86 IEA, with its only change being the removal of the colonial-era phrase "Her Majesty's Dominions," replaced with "any country beyond India" — the same modernisation pattern seen in Section 80.
- The presumption under subsection (1) is discretionary ("may presume") and depends on two layered certifications, not the foreign court's certification alone.
- Subsection (2) borrows the General Clauses Act, 1897 definition of "Political Agent" to settle who qualifies as the Central Government's representative abroad.
- Section 88 governs only the genuineness and accuracy of the copy as a document — it has no bearing on whether the underlying foreign judgment is conclusive or enforceable in India, a question governed separately by Sections 13 and 14 of the CPC, as Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451, illustrates.
- Clearing Section 88's presumption and satisfying Section 13 CPC's conditions are two independent hurdles — success on one carries no implication for the other.
Conclusion
Section 88 exists to solve a document-authenticity problem, not a comity-of-nations problem — and keeping that boundary clear prevents a common, costly mistake in cross-border litigation. Its wording has been lightly modernised from the 1872 Act's colonial phrasing, but its two-layer certification structure survives untouched. The presumption of copies from beyond India ties naturally back to Section 89's presumption for books and maps produced within it, and forward to Section 87's narrower presumption for electronic signature certificates, covered next.