Bharatiya Sakshya Adhiniyam, 2023
Section 36 BSA: Relevancy and Effect of Judgments, Orders or Decrees Other Than Those Mentioned in Section 35
Section 36 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the limited evidentiary relevance of certain judgments, orders or decrees concerning matters of a public nature. Such decisions may be relevant, but they are not conclusive proof of what they state.
Text of Section 36
36. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35. Judgments, orders or decrees other than those mentioned in section 35 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
What Section 36 means
Section 36 applies where an earlier judgment, order or decree does not fall within Section 35, but nevertheless concerns a matter of public nature that is relevant to the enquiry before the Court. In that situation, the earlier judicial decision may be received as relevant evidence.
The section also imposes an important limit: the earlier judgment, order or decree is not conclusive proof of the fact stated in it. The Court may consider the decision along with the other admissible evidence and independently determine the issue.
Essential ingredients of Section 36
- There must be a prior judgment, order or decree.
- It must be other than a judgment covered by Section 35.
- It must relate to a matter of a public nature.
- The public matter must itself be relevant to the enquiry before the Court.
- The prior decision is relevant evidence, but it does not conclusively establish the truth of what it states.
Illustration under Section 36
A sues B for trespass on his land. B alleges that a public right of way exists over the land, which A denies. A previous decree in a suit by A against C, in which C had alleged the same public right of way, is relevant. However, that decree is not conclusive proof that the right of way actually exists.
The illustration shows the distinction between relevance and conclusiveness. The previous decree may assist the Court because it concerns the same alleged public right, but the Court remains free to evaluate other evidence before reaching its conclusion.
Relationship with Sections 34, 35, 37 and 38
| Provision | Subject | Effect |
|---|---|---|
| Section 34 | Previous judgments relevant to bar a second suit or trial | Deals with judgments relevant to legal bars such as res judicata or former jeopardy, as applicable. |
| Section 35 | Certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction | Specified judgments may have conclusive evidentiary effect on legal character or status. |
| Section 36 | Judgments on matters of public nature | Relevant, but not conclusive proof. |
| Section 37 | Other judgments not covered by Sections 34 to 36 | Generally irrelevant unless the existence of the judgment itself is a fact in issue or is otherwise relevant under the Act. |
| Section 38 | Fraud, collusion or incompetency of Court | Permits challenge to certain judgments on specified grounds. |
Corresponding provision under the Indian Evidence Act, 1872
Section 36 BSA substantially corresponds to Section 42 of the Indian Evidence Act, 1872, which similarly dealt with the relevancy and effect of judgments, orders or decrees concerning matters of a public nature.
Transitional rule
The Bharatiya Sakshya Adhiniyam came into force on 1 July 2024. Under Section 170, proceedings that were already pending immediately before commencement continue to be dealt with under the Indian Evidence Act, 1872, as if the BSA had not come into force.
Practical evidentiary effect
When a party relies on an earlier decision under Section 36, the Court may take that decision into account because it relates to a public matter relevant to the case. However, the opposing party may still lead evidence disputing the proposition stated in the earlier decision. The Court must therefore assess the prior judgment together with the full evidentiary record.
Related BSA provisions
For nearby provisions on public facts, previous judgments and expert opinion, see Section 31, Section 32, Section 33, Section 39 and Section 40.