Sections 38 and 39 of the Indian Evidence Act 1872: Relevancy of Law Books and Complete Statements

Sections 38 and 39 of the Indian Evidence Act, 1872 dealt with two distinct rules of relevancy. Section 38 concerned statements of foreign law contained in authorised law books and reports of judicial rulings. Section 39 required enough of a longer statement, conversation, document, electronic record, book or connected series of letters or papers to be proved so that the statement relied upon could be properly understood in context.

Legal position covered by this article: This page explains the Indian Evidence Act, 1872 as applicable immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. It is intended for research into the pre-1 July 2024 evidence-law framework.

Section 38 - Relevancy of statements as to any law contained in law-books

Meaning: Section 38 made specified statements about the law of another country relevant when a court had to form an opinion about that law. The provision recognised two principal documentary sources: an authorised publication containing the law of that country and a book purporting to report rulings of its courts.

Statutory rule: Where the Court has to form an opinion as to the law of any country, a statement of that law in a book purporting to be printed or published under the authority of that country's Government and to contain such law is relevant. A report of a ruling of that country's courts contained in a book purporting to report such rulings is also relevant.

What Section 38 required

The court must have to form an opinion regarding the law of a country.
A statement of that law could be relevant when contained in a book purporting to be officially printed or published under governmental authority.
A report of a judicial ruling could also be relevant when contained in a book purporting to be a report of such rulings.
The provision dealt with relevancy of these sources; the weight to be attached to a particular source remained a matter for judicial assessment in the case.

Section 39 - What evidence is to be given when a statement forms part of a larger context

Meaning: Section 39 embodied a rule of completeness and context. When a party proved a statement that was only part of a longer communication or record, the evidence was not necessarily confined to the isolated words selected by that party. The court could require so much of the surrounding material as was necessary to understand the nature and effect of the statement and the circumstances in which it was made.

Statutory rule: If the statement proved forms part of a longer statement, a conversation, an isolated document, a document forming part of a book, part of an electronic record, or a connected series of letters or papers, evidence is to be given of so much - and no more - of that material as the Court considers necessary in the particular case for a full understanding of the nature and effect of the statement and the circumstances in which it was made.

Purpose and practical effect of Section 39

Context matters: an isolated extract should not be considered in a way that distorts the meaning of the statement.
Only necessary surrounding material is required: the section did not automatically make an entire document, conversation, book, electronic record or correspondence admissible merely because one statement was relevant.
The Court controls the extent: the court determined how much additional material was needed for a full understanding in the particular case.
Electronic records were included: the pre-BSA text of Section 39 extended the contextual rule to statements contained in part of an electronic record.

Difference between Sections 38 and 39

Section 38 concerned the relevancy of specified sources used when a court had to form an opinion about the law of a country. Section 39 addressed a different problem: how much of a larger communication or record should be placed in evidence when only one statement from it is relied upon. In short, Section 38 dealt with a category of relevant legal material, while Section 39 protected the proper contextual understanding of a statement.

Illustrative understanding of Section 39

If a sentence from a letter, email chain, recorded conversation or other connected material is relied upon, the opposing party may contend that surrounding portions are needed to understand what the sentence actually meant. The court does not have to receive every connected item. It determines the portion necessary to understand the statement's nature, effect and circumstances without admitting unnecessary material under Section 39 alone.

Pre-1 July 2024 legal context

The Indian Evidence Act, 1872 governed the law of evidence under this framework before the commencement of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. This article therefore retains the terminology and section numbering of the Indian Evidence Act for matters requiring the earlier statutory position.