Report No. 69

II. Section 79-Jammu and Kashmir.

37.15. and 37.16. Section 79-Officers of Jammu and Kashmir.-

Another question relevant to section 79, pertains to the State of Jammu and Kashmir. The presumption as to genuineness of certified copies arising from section 79 is, by the terms of that section, available only in respect of certificates, certified copies or other documents certified by the officers mentioned in the section. Now, the section mentions any officer of the Central Government or the State Government, "or any officer in the State of Jammu and Kashmir who is duly authorised thereto by the Central Government." Thus, in the case of officers in the State of Jammu and Kashmir, specific authorisation of the officer by the Central Government is necessary, while, in the case of other areas, any officer can certify the document in question.

37.17. It has been suggested,1 that this distinction need not be kept alive any longer, and that the mere fact that the Evidence Act does not apply to Jammu and Kashmir does not justify the restriction as to the certification of documents in respect of that State. The suggestion appears to be reasonable. However, before we record our acceptance, it is worthwhile discussing one point.

1. Notes in Ministry of Home Affairs File No. 11(4)-R/56 received through Ministry of Lay U.O. No. 20(1)(2)/58 Judl. Leg. 11-F. 3(1155)-LC Part I, dated the 21st July, 1959.

37.18. Position of Jammu & Kashmir under section 79, Evidence Act.-

The point to be considered is-Is Parliament competent to make the proposed amendment in so far as the State of Jammu & Kashmir is concerned? The Constitution, Concurrent List, entry 12, which pertains to "evidence", does not apply to the State of Jammu & Kashmir-except to the limited extent provided in that entry and therefore the question arises whether section can be amended as proposed. We are of the view that the proposed provision is not legislation on "evidence" in relation to the State of Jammu & Kashmir. It is not an exercise of the legislative power over the State of Jammu & Kashmir on the subject of "evidence" at all. It is legislation in relation to the areas to which the Act extends, on the subject of evidence and, therefore, the fact that Concurrent list, entry1 12 relating to "evidence" does not apply to the State of Jammu & Kashmir, is not material to the proposed amendment.

1. The entry is quoted below.

31.19. Entry 12, in its application to the State of Jammu & Kashmir, reads as follows:

"12. Evidence and oaths in so far as they relate to administration of oath: and taking of affidavits by diplomatic and consular officers in any foreign country."

The fact that this entry has a very limited ambit, would. be relevant if 'Parliament, were to legislate as to the evidence admissible in the courts in the State of Jammu & Kashmir. The entry would prohibit such legislation and would be relevant in a negative sense. Again, the entry would be relevant-this time in a positive sense-if legislation is to be passed to the effect that oaths administered by our diplomatic officers in, say, France shall be recognised in India, not excluding Jammu & Kashmir. The entry would permit such legislation.

37.20. But neither of these situations exists in section 79. The pith and substance of the law-as it now stands and as it is going to be amended if our recommendation is accepted-is the law of evidence in relation to the areas to which the Act, extends. Section 79 is a mandate to the courts in the areas, to which the Act extends, in regard to the reception of certain species of evidence.

If the view is taken that section 79, when it makes any provision in relation to the State of Jammu & Kashmir, amounts to legislation in relation to that State on the subject of "evidence", then even the present provision in section 79, referring to certificates etc. given by "any officer in the State of Jammu and Kashmir who is duly authorised by the Central Government" cannot be supported-the more so because that part of the section is not confined to officers of the Central Government functioning under central laws in the State of Jammu & Kashmir. On such a view, even the validity of sections 84 to 86 may come to be doubted, because if they constitute legislation-(i) on "evidence", (ii) in relation to areas outside India, then it is difficult to see how the Governor-General-in-Council could pass such legislation, acting as the legislature for British India.

37.21. History.-

On the constitutional question, referred to above, the history of the section raises no difficulty. The material part of section 79, as originally enacted, read thus-"which purports to be duly certified by any officer in British India, or by any officer in any native State in alliance with Her Majesty, who is duly authorised thereto by the Governor-General-in-Council to be genuine."

On this section, Woodroffe's commentary is that it applies to certificates etc. "by officers in British India or by duly authorised officers in allied native States."

[The words "to be genuine" appeared at the end in the original section, but have been transposed to the opening part by the Adaptation Order, 1948. Other adaptations and amendments are noted below.]

In 1937, by the Adaptation order, this section was adapted.

After 1937 and before 1948, the section read as follows:

"79. The court shall presume every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer in British India or by an officer in an Indian State who is duly authorised thereto by the Central Government or the Crown Representative to be genuine:

Provided that such document is substantially in the form, and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purport to be signed or certified had, when he signed it, the official character which he claims in such paper."

37.22. The Adaptation order of 1948 made some adaptations and changes. It transposed the words "to be genuine" at the beginning (as already stated). It brought in the concept of a government officer.1 It removed the words "British India" totally.2

After 1948 and before 1950, the section read as follows:

"79. The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a Provincial Government, or by any officer in an acceding state or other Indian State, who is duly authorised thereto by the Central Government:

Provided that such document is substantially in the form, and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."

1. This is important.

2. This is important.

37.23. By the Adaptation Order of 1950, the following adaptation was made-

"Section 79-For "acceding State or other Indian State" substitute "a Part B State".

After the 1950 Adaptation and before 1951, the section read as follows:

"79. The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in a Part B State, who is duly authorised thereto by the Central Government: Provided that such document is substantially in the form, and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."

By the Act of 1951,1 the following amendment was made:

"Section 79-For "in a Part B State" substitute "in the State Jammu and Kashmir."

In effect, the section was amended so as to read as it now reads.

1. The Part B States (Laws) Act, 1951.

37.24. Thus, it was in 1951 that the State of Jammu and Kashmir came to be mentioned separately in the section. That Act brought Part B States (except Jammu & Kashmir) in line with Part A and Part C States, by extending the Evidence Act to the Part B States (except Jammu & Kashmir). Authorisation of the Central Government was henceforth required only in regard to Jammu & Kashmir. This exception was not, constitutionally speaking, imperative. We need not assume that it was based on any notion that Parliament was not competent to apply the section to documents in the State of Jammu & Kashmir.

37.25. Considerations of uniformity and efficiency.-

In short, words referring to a native State were replaced by "Part B States" and then by the State of Jammu and Kashmir. In each case, the authorisation was to be given by the Central Government. This requirement was understandable at a time when there were so many Indian States, with a diversity in the structure and efficiency of their administration, so that it was considered proper that the authorisation should be by the Central Government in order to maintain uniformity and ensure efficiency.

37.26. Amendment of 1951-Why narrow.-

When the section was amended in 1951 so as to extend it to Part B States, the same scheme was maintained-apparently because the question was not raised in the form in which it is raised now, or perhaps because a certain amount of diversity in administrative efficiency in Part B States was still assumed to have continued. This was understandable in 1950, but would hardly be true today. In any case, the idea of a native State cannot be allowed to survive at the present day.

The history of the section seems to suggest that the "Central Government" was originally mentioned for "native States" for administrative reasons, and this mention survived, after the Constitution, not because of constitutional difficulty that was felt in relation to the State of Jammu and Kashmir, but for other reasons. It may incidentally be noted that section 79 has no application to original documents. In view of the points made above, we see no difficulty of a constitutional nature in the proposed amendment relating to Jammu and Kashmir, nor any other objection thereto.

37.27. Recommendation.-

Accordingly, we recommend that in section 79, the words: "or by any officer in the State of Jammu and Kashmir, who is duly authorised thereto by the Central Government",1-2 should be omitted.

1. The recommendation as to Parliamentary papers (supra) should also be implemented.

2. The recommendation as to Jammu & Kashmir is subject to reservation by Member Shri Sen Varma.

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