Bharatiya Sakshya Adhiniyam, 2023
Section 165
Production of documents
(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility: Provided that the validity of any such objection shall be decided on by the Court.
(2) The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
(3) If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 198 of the Bharatiya Nyaya Sanhita, 2023: Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it.
Why this exists
This provision descends from Section 162 of the Indian Evidence Act, 1872, drafted to balance two competing needs: a court's power to get at the truth by seeing relevant documents, and the government's or a party's legitimate interest in keeping certain sensitive material confidential (like State secrets or high-level executive communications). It ensures a witness cannot simply refuse to bring a document because they personally think it inadmissible — that decision belongs to the judge, not the witness or an outside authority. The translator-secrecy and Ministers–President confidentiality clauses protect sensitive content from leaking out during the process of judicial scrutiny.
How courts read it
Under the predecessor provision (Section 162, Evidence Act 1872), courts held that it is the judiciary — not the executive — that has the final say on whether a claim of privilege over a document is valid, notably in cases like State of Punjab v. Sodhi Sukhdev Singh (1961) and later refined in S.P. Gupta v. Union of India (1981), the 'Judges Transfer case', where the Supreme Court examined claims of State privilege over official communications and stressed judicial review of such claims rather than blind deference to the government's assertion. The Bharatiya Sakshya Adhiniyam, 2023 carries forward this same structure and is expected to be read in light of these established principles, though it is too new for its own body of case law yet.
Common misconceptions
- Myth: A witness can refuse to bring a document to court if they personally believe it's confidential or inadmissible.
Fact: The witness must still bring the document; only the judge decides if the objection to its use is valid. - Myth: Courts can always inspect any government document to decide if it's admissible.
Fact: The law specifically excludes documents relating to matters of State from direct judicial inspection under this provision. - Myth: Translators can freely discuss the contents of documents they translate for court.
Fact: If ordered by the court to keep contents secret, disobeying that order is a punishable offence under the Bharatiya Nyaya Sanhita, 2023.