Definition
Evidence of the contents of a document other than the document itself.
Copies, certified copies, counterpart evidence, or oral accounts of the content of a primary document — admissible only when the original is unavailable and the conditions for secondary evidence are satisfied.
Statutory Definition
Bharatiya Sakshya Adhiniyam (BSA), 2023, Section 57 (formerly IEA Section 63); admissibility conditions in Section 58 BSA (formerly IEA Section 65).
Etymology & Origin
From Latin 'secundarius' (following next, secondary — from 'secundus', following — from 'sequi', to follow). 'Secondary' evidence is evidence that 'follows' or is derivative of the primary evidence — it is the second-best proof of a document's contents, resorted to when the original cannot be produced. The same root gives 'second' and 'sequel' (what follows).
Full Legal Analysis
Secondary evidence is evidence of the contents of a document given in place of the primary evidence (original document). Section 57 of the BSA, 2023 (formerly Section 63 IEA) specifies the forms of secondary evidence: (1) certified copies given under the provisions of the BSA; (2) copies made from the original by mechanical processes (photocopies, facsimile copies) that in themselves ensure the accuracy of the copy — accompanied by a person's certificate that they are accurate; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; and (5) oral accounts given by a person who has themselves seen the document.
When secondary evidence is admissible (Section 58 BSA, formerly Section 65 IEA): secondary evidence may be given of the existence, condition, or contents of a document when: (1) the original is shown or appears to be in the possession or power of the adverse party who has not produced it after notice; (2) the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved; (3) the original has been destroyed or lost; (4) the original is of such a nature as not to be easily movable; (5) the original is a public document within the meaning of the BSA; (6) the original is a document of which a certified copy is permitted by the BSA or by any other law to be given in evidence; or (7) the originals are not easily producible in evidence and copies are reasonably supposed to be correct.
The Supreme Court held that for electronic records (emails, computer files, mobile phone messages), the Certificate under Section 65B IEA (now Section 63 BSA) is mandatory for admissibility — it is not optional. Electronic records are a form of 'secondary evidence' of the data stored on the device/server. Without the Section 65B (now Section 63 BSA) certificate from the responsible person who has authority over the device/computer that produced the electronic record, the electronic record is inadmissible in court. The Court further held that the certificate must identify the device, the period of operation, the process by which the record was produced, and confirm that the device was functioning properly. This ruling has significantly affected the admissibility of electronic evidence in all Indian courts.
Certified copies: a certified copy is a copy of a public document (court order, government record, registration document) authenticated by an official authorised to certify copies. Under the BSA, certified copies of public documents are a specific category of secondary evidence that is admissible without requiring the production of the original. A certified copy of a registered sale deed (obtained from the Sub-Registrar's office) is admissible secondary evidence of the terms of the sale deed, even without producing the original.
For advocates, secondary evidence issues arise in: (1) where the original has been lost or destroyed — the loss must be proved before secondary evidence is admitted; (2) document production proceedings — forcing the adversary to produce the original or give notice to produce; (3) electronic evidence — the mandatory Section 63 BSA certificate; (4) certified copies — when relying on certified copies from public offices; and (5) oral evidence of documents — the lowest form of secondary evidence, requiring the witness to have personally seen the original.
This Term in Indian Statutes
Bharatiya Sakshya Adhiniyam, 2023, 2023
"Secondary evidence means and includes— (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it."
Arjun Panditrao: Section 63 BSA certificate mandatory for electronic evidence (secondary evidence of electronic record); seven conditions for admissibility — Section 58 BSA; certified copies admissible without original; loss of original must be proved
