Primary and Secondary Evidence

The legal system heavily relies on evidence to establish facts, substantiate claims and ensure fair and just outcomes in court proceedings. In this context, the concepts of primary and secondary evidence hold significant importance.

Understanding the distinction between primary and secondary evidence is essential for litigators, judges and individuals involved in legal proceedings. The Indian Evidence Act provides for 2 types of evidence, primary and secondary evidence.

Primary Evidence

Primary evidence, also known as best evidence, refers to the actual documents produced for the court’s inspection. According to Section 62, it is considered the highest class of evidence and must be presented before the court. It is admissible without prior notice and takes precedence over secondary evidence. Secondary evidence can only be introduced if primary evidence is not available and the reason for its absence must be explained.

Primary evidence is the most reliable proof of the existence of an object since it is the original document itself. It is distinct from secondary evidence, which is a copy or substitute of the original. If a party has access to primary evidence, they must present it as evidence. However, if primary evidence is unavailable due to circumstances beyond the party’s control, such as loss or destruction, a reliable substitute can be presented after establishing its unavailability.

Secondary Evidence

Secondary evidence refers to evidence that is presented in the absence of primary evidence. It is considered a substitute for the original or primary evidence. Secondary evidence can include copies, duplicates or any other form of evidence that is not the original document or object. It is generally considered to be of lower evidentiary value compared to primary evidence. 

However, if primary evidence is unavailable and the reason for its absence is explained, secondary evidence may be admitted in court. It is important to note that secondary evidence can only be introduced if there is a valid justification for the unavailability of primary evidence.

Difference Between Primary and Secondary Evidence 

Here’s a table comparing primary evidence and secondary evidence:

Judicial Pronouncements on Primary and Secondary Evidence

Over the years, various judicial pronouncements have provided clarity on the significance of primary evidence and the admissibility of secondary evidence in its absence. In the case of J. Yashoda v. Smt. K. Shobha Rani (2007), the Hon’ble Supreme Court held that secondary evidence can only be admitted when primary evidence is unavailable. If the party fails to establish the validity of the original document, they cannot introduce secondary evidence regarding its contents.

Similarly, in H. Siddiqui (dead) by LRs Vs. A. Ramalingam (2011), the Apex Court reiterated that without providing a rational reason and factual foundation for the non-production of the originals, the court cannot allow the introduction of secondary evidence.

In Rakesh Mohindra v. Anita Beri and Ors. (2016), the Supreme Court stated that before presenting secondary evidence, it is necessary to establish the plausible reason for the non-production of primary evidence. Secondary evidence can only be accepted if it is proven that the original documents are lost, destroyed or deliberately withheld by the opposing party.

Furthermore, in Chandra v. M. Thangamuthu (2010), the Hon’ble Apex Court emphasised that the secondary evidence must be authenticated by foundational evidence, proving that the alleged copy is a true replica of the original. Exceptions to the rule requiring primary evidence are intended to provide relief when a party genuinely cannot produce the original document due to circumstances beyond their control.

Conclusion

Primary and secondary evidence play crucial roles in the legal system when establishing facts and proving claims. Primary evidence considered the highest quality of evidence, consists of original documents or works that are presented directly to the court for inspection. It holds significant evidentiary value as the main source of evidence.

On the other hand, secondary evidence serves as a substitute for primary evidence when it is unavailable. Although of lower quality, secondary evidence can be admitted if the party provides a valid justification for the non-production of primary evidence. However, the court requires a rational reason and factual foundation for the introduction of secondary evidence.

Judicial pronouncements have shed light on the importance of primary evidence and the strict criteria for admitting secondary evidence. These pronouncements emphasise that secondary evidence can only be accepted when primary evidence cannot be produced due to circumstances beyond the control of the party. Authentication and establishing the genuineness of the secondary evidence are also vital requirements.