A Judge’s Power to Ask Any Question Under the BSA (Section 168): Evidence Act 165 Mapping (2026)
What a judge can ask, and what a judge can order produced, under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, what the limits are, and how it maps to Section 165 of the old Evidence Act. Last verified October 2026.
Explainer · Evidence Law · BSA
A trial is run by the parties, who lead their own evidence and cross-examine. But a judge is not a silent umpire. If the truth is slipping away because a question was not asked, or a document was not produced, the law gives the judge the power to step in. Section 168 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872 from 1 July 2024, is that power. This explainer sets out what the judge may ask and order, the limits on the power, and how Section 168 maps to the old Section 165. Last verified October 2026.
- What it is: a judge’s wide power to put any question and to order production of documents, to get proper proof.
- How wide: any witness or party, any question, any form, any time, about any fact, relevant or not.
- Parties: cannot object to the judge’s questions or orders, and need the court’s leave to cross-examine on an answer.
- Limits: the judgment must rest on relevant, duly proved facts, and privileges and the primary evidence rule still apply.
- Old to new: BSA Section 168 replaces Section 165 of the Indian Evidence Act.
01Why a judge needs this power
In our system the parties build the case. They choose the witnesses, frame the questions, and decide what to produce. Usually that works. But sometimes a vital point is left in the dark, because neither side wanted to touch it, or because a question was clumsily framed.
If the judge could not intervene, the court might have to decide on an incomplete record. Section 168 prevents that. It lets the judge ask the question that gets to the truth, and call for the document that settles it, so the decision rests on proper proof.
02What the power is
The judge’s power to put questions or order production is a wide power to seek proper proof. The judge may ask any question, of any witness or party, in any form, at any time, about any fact, whether relevant or not. The judge may also order a document or thing to be produced.
The judge may ask any question, in any form, at any time, to reach the truth, but may only decide on facts the law makes relevant and that are duly proved.
The purpose is to discover or obtain proper proof of relevant facts. The power is about reaching the truth, not about helping one side.
03Section 168: what the judge may do
Section 168 of the BSA gives the judge three linked powers:
- Ask any question: the judge may put any question to any witness or party, in any form, at any time, about any fact, relevant or not.
- Order production: the judge may order any document or thing to be produced.
- Control objections and cross-examination: neither the parties nor their representatives may object to any such question or order, and they may not cross-examine a witness on an answer given to the judge’s question without the court’s permission.
This is a very broad power. The judge can go beyond what either side chose to explore, which is why it is such a useful tool for getting to the real facts.
04The limits on the power
The power is wide, but it is not unlimited. Section 168 fences it with clear limits.
- Decision only on relevant, proved facts: the judgment must be based on facts the Act declares relevant, and that have been duly proved. The judge may ask about anything, but may only decide on proper evidence.
- Privileges protected: the judge cannot compel a witness to answer a question, or produce a document, that the witness could lawfully refuse under the privilege provisions, had the opposite party asked.
- No barred questions: the judge cannot ask a question that another person would be forbidden to ask under the rules on improper questions.
- Primary evidence rule: the judge cannot dispense with primary evidence of a document, except in the cases the Act already allows.
A tool for truth, not a substitute for proof
The wide power to ask does not change the rule on decision. The court can explore freely, but it must still rest its judgment on relevant facts that are properly proved.
05Old law to new law: Evidence Act 165
This power is not new. It is one of the most well known provisions in the law of evidence, and it carries over with a new number.
| Subject | Old Evidence Act, 1872 | New BSA, 2023 |
|---|---|---|
| Judge’s power to put questions or order production | Section 165 | Section 168 |
So an advocate who knows the old Section 165 will recognise Section 168 at once. The content is substantially the same. For the wider shift from the Evidence Act to the BSA, see key changes from the Evidence Act to the BSA. For how questions are controlled in cross-examination, see leading questions under BSA Section 146.
06Practical points
- Expect the judge to ask. Prepare your witness for questions from the bench, not just from counsel.
- Do not object reflexively. The parties cannot object to the judge’s questions or orders, so plan around them.
- Seek leave to cross-examine. If you want to cross-examine on an answer given to the judge, ask the court for permission.
- Raise privilege properly. If a question touches a privilege, say so, because the judge cannot compel an answer that a privilege protects.
- Hold the court to proof. The final decision must rest on relevant facts that are duly proved, so keep the record clean.
07Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
How far a judge may stretch the Section 168 power, and where its limits bite, is worked out in the case law. Claw lets an advocate read across 30 crore+ judgments, with results in under 5 seconds, to find how benches have applied the judge’s power under Section 168 and the old Section 165, drawing on the Supreme Court from 1950 and the High Courts from 1990. You can also follow a live matter, its orders and hearings, by party or advocate name, across the 9,102 courts, benches and forums Claw covers. Open a free Claw account to look up this power in the precedents and keep watch on your matter. Start from the case search across Indian courts hub.
Claw gives research and tracking, not legal advice, and it does not replace your counsel. Claw also does not use the documents customers upload to train its AI models.
08Sources and further reading
- India Code (official text of the BSA, 2023): indiacode.nic.in
- BSA Section 168 (commentary): vidhijudicial.com
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.
09Frequently asked questions
What is the judge’s power under Section 168 of the BSA?
It is the power to ask any witness or party any question, in any form, at any time, about any fact, and to order the production of any document or thing, in order to discover or obtain proper proof of relevant facts. The parties cannot object to such questions or orders.
Which old section does BSA Section 168 replace?
It replaces Section 165 of the Indian Evidence Act, 1872. The content is substantially the same, with a new section number under the BSA.
Can a party object to a judge’s question under Section 168?
No. Neither the parties nor their representatives may object to any question or order made by the judge under this power. They also cannot cross-examine a witness on an answer given to the judge without the court’s permission.
Are there limits on this power?
Yes. The judge must base the judgment on facts the Act declares relevant and that are duly proved, cannot compel an answer or production that a privilege protects, cannot ask a question that is otherwise barred as improper, and cannot dispense with primary evidence of a document except where the Act allows.
Does the wide power change how the case is decided?
No. The judge may ask about any fact, relevant or not, to reach the truth, but the final decision must still rest only on relevant facts that are properly proved. The power helps gather proof, it does not lower the standard of proof.
Can I research the judge’s power in Claw?
Yes. You can search 30 crore+ judgments in under 5 seconds to see how courts apply Section 168 and the old Section 165, and follow a live matter by party or advocate name across the 9,102 courts, benches and forums on the platform. Claw researches and tracks, it does not give legal advice.