Introduction to Indian Evidence Act, 1872

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The evidence and witnesses have been a key player in the pursuit of justice delivery. Thus, the object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. The term โ€˜evidenceโ€™ owes its origin to the Latin term โ€˜evidereโ€™ which means โ€˜to show clearly, to discover, to ascertain or to proveโ€™. In this article, we shall study the historical background, extent, salient features, scheme and applicability of the Indian Evidence Act, 1872.

Law is classified into Substantive Law and Procedural or Adjective Law. Blackโ€™s Law Dictionary (7th ed., West 1999) defines Substantive laws as they are โ€œthe part of the law that creates, defines, and regulates the rights, duties, and powers of parties.โ€ Whereas procedural laws are the โ€œrulesโ€ that govern litigationโ€”the rules the parties must follow as they bring their case and the rules for the courtsโ€™ administration. Evidence law is a procedural law or objective law.

Historical Background of the Indian Evidence Act, 1872:

In order to understand the development of the Law of Evidence in the Indian Justice System we have to trace the history referring to three different periods, namely:

  • Ancient Hindu Period
  • Muslim Rule
  • British Rule

In ancient India, legal systems and the concept of evidence were significantly different from contemporary legal frameworks. Ancient Indian legal systems were primarily based on religious and philosophical texts, with an emphasis on dharma (righteousness) and the proper conduct of individuals within society. The Manusmriti (Laws of Manu), Arthashastra, and Dharmashastra were among the influential texts that guided legal principles during different periods of ancient Indian history. While these ancient legal systems did recognize the importance of evidence, the methods of gathering and presenting evidence were not as formalized or standardized as in modern legal systems.

The evidence act, as understood in the context of contemporary legal terminology, did not exist in the same form in ancient India. It’s important to note that the legal systems in ancient India varied across regions and time periods, and different schools of thought had different interpretations of legal principles. The understanding and application of evidence in ancient India were deeply rooted in the cultural, social, and religious contexts of the time.

The Dharma Shastra, for example, outlined various means of proof, including oral testimony, documents, and inference. Witnesses played a crucial role in establishing facts, and their credibility was essential. However, the rules for presenting evidence were not as codified or systematic as in modern legal systems. Dharma Shastras recognize three kinds of evidence: a) Lekhya (Document) b) Sakshi (Witnesses) c) Bukhthi (Possession).

  • Lekhya (Document): This Lekhya or documentary evidence was further classified into three categories, namely, Rajasaksika, Sasaksika, and Asaksika. Rajasaksika is a document which is executed in the Kingโ€™s Court by the Kingโ€™s clerk and attested by the presiding officer affixing the seal which resembles a modern registered document. Sasaksika is purely a private document written by anyone and in their own hands by witnesses. Asaksika is a document which has been written by the parties themselves and hence admissible. Thus, the Ancient Hindu Law of Evidence also preferred documentary evidence over oral evidence.
  • Sakshi: The law-givers lay down that, in a disputed case, the truth shall be established by means of witnesses. According to Hindu practice, it was the Judges who put questions to witnesses. They were directed to watch the behaviour of the witnesses and decide upon their reliability.
  • Bhukhti: Possession was recognized as evidence of right and title and one of the modes of proving along with the documents and witnesses. In the present Evidence Act also there is a presumption that the possessor of anything is the lawful owner of that thing.

The concept of “Pratyaksha” (direct perception) and “Anumana” (inference) were recognized as valid means of establishing facts in ancient Indian jurisprudence. Additionally, the use of documents and written records as evidence was acknowledged.

While ancient Indian legal traditions contributed to the development of legal thought, the formalization and codification of evidence laws, as seen in modern legal systems, emerged much later in history.

During the Muslim rule in India, especially under the Delhi Sultanate and the subsequent Mughal Empire, Islamic legal principles were applied, and the legal system was influenced by Islamic law or Sharia. Sharia is derived from the Quran and the Hadith (sayings and actions of Prophet Muhammad) and covers various aspects of personal and social life, including matters of jurisprudence and legal procedure. While there wasn’t a distinct “Evidence Act” in the modern sense during the medieval Muslim rule in India, Islamic legal principles guided the administration of justice, and various methods of evidence were recognized. Islamic law places a strong emphasis on the testimony of witnesses, and this principle was applied in legal proceedings during this period.

The Muhammadan law-givers deal with evidence under the heads of oral and documentary, the former being subdivided into direct and hearsay. There was a further classification of evidence in the following order of merit, viz., full corroboration, the testimony of a single individual, and admission including confession. In Muslim jurisprudence, oral evidence appears to have been preferred to documentary. When documents were produced, courts insisted upon examining the party which produced them.

Key features related to evidence in Islamic law included:

  • Witness Testimony: The testimony of witnesses, especially trustworthy and competent ones, was considered crucial. In many legal matters, the court relied on oral testimony to establish facts.
  • Qadi/Kazi(Judge) Discretion: The judge, known as Qadi, had a significant role in evaluating evidence and making decisions. The judge had the authority to assess the credibility of witnesses and other evidence presented.
  • Oath and Swearing: In certain cases, parties involved might be required to take oaths to establish the truthfulness of their claims. However, this was not the sole method of establishing evidence.
  • Confession: Confessions, if made voluntarily, were given weight as evidence.
  • Written Documents: Written documents were also considered as evidence, especially in matters involving contracts, transactions, or other legal agreements.

The Fatawa-i-Alamgiri, also known as the Hidayah, was a compilation of Islamic laws commissioned by the Mughal Emperor Aurangzeb. It covered various aspects of law, including evidence and legal procedure. However, its influence varied, and the actual practice of law often depended on local customs and traditions.

Before the introduction of the Indian Evidence Act, there was no systematic enactment on this subject. The English rules of evidence were always followed in the courts established by the royal charter in the presidency towns of Calcutta, Madras, and Bombay. Before Independence, there were upwards of 600 princely states in India, which were not inside the locale of the British arrangement of equity. Every one of these States had its own principles of the Law of Evidence. Outside the presidency towns, there were no fixed rules of evidence. The law was vague and indefinite and had no greater authority than the use of custom. There was a desperate need for the codification of the principles of law. During the period of 1835 to 1853 A.D., a series of Acts were passed by the Indian legislature introducing some reforms of these Acts which superficially dealt with the law relating to the witness. In the year 1868, a Commission was set up under the chairmanship of Sir Henry Mayne. He presented the draft, which was later discovered inadmissible to Indian conditions.  In the year 1870, Sir James Stephen prepared a new bill which was passed by the parliament in 1872 which codified consolidated the rules relating to admissibility of fact competency of witnesses, examination, and cross-examination of the witness. โ€œThe Evidence Actโ€ came into force on first September 1872.

The Indian Evidence Act, 1872

Indian Evidence Act

Objects of the Indian Evidence Act:

The object behind giving preamble of any Act is to indicate the object of the Legislature, in enacting the Act. The Indian Evidence Act, 1872 is made with the following objects:

  1. The preamble of this Act states that the Act is made to consolidate, define and amend the Law of Evidence. The term consolidates means to collect all statutory enactments or specific subject and give than the safety of one statute. The Indian Evidence Act, 1872 has codified the rules of the English Law of Evidence with some modifications.  
  2. To prevent laxity in the administration of the Evidence in the Courts. This Act puts limits on the facts which are admissible in the Courts. This Act introduces more correct and uniform rules of practice of Courts in dealing with fact as Evidence. Thus the Court considers only that evidence which will enable to reach a reliable conclusion.

In Norendranath Sircar v. Kamalabasini Dasi, (1896) ILR 23 Cal 563 case, the Court observed โ€œThe object of codifying a particular branch of the law is that on any point specifically dealt with, the law should thenceforth be ascertained by interpreting the language used in that enactment, instead of, as before, searching in the authorities to discover what may be the law, as laid down in prior decisions.โ€

Relevance and Function of the Law of Evidence:

  • In the process of delivering justice, Courts not only have to go into the facts of the case but also ascertain the truthfulness of such assertions made by the parties. To ascertain these facts, the Law of Evidence plays an important role, being the procedural law in this aspect.
  • It is this procedural law that provides in itself how fats are to be proved and when the same will be regarded as relevant by the Court in the administration of justice.
  • It helps judges in deciding the rights and liabilities of the parties arising out of the facts presented to him for further application of the relevant laws.
  • The law of evidence lays down the principles and rules according to which the facts of a case may be proved or disproved in the Court of Law.
  • It helps the Courts in preventing the wastage of time upon irrelevant issues.

In the State Bank of India v. Om Narain Agarwal, AIR 2011 All 169 case, the Court observed that the main function of the rule of evidence is to narrow down the scope of the dispute before the Court to the fact relating to that matter which has logical probative value in determining a fact and to prevent giving judgments based on illogical conclusions or prejudices and as an aid to the administration of justice.

In Ram Jas v. Surendra Nath, AIR 1980 All 385 case, the Court held that, the law of evidence does not affect the substantive rights of the parties but facilitates the course of justice. It lays down rules of guidance for the Courts. It is procedural in nature, proving how a fact can be proved.

Salient Features of the Indian evidence Act, 1872

  • Indian Evidence Act is Adjective Law because it reflects qualities of IPC and CrPC.
  • It is based on the English Common Law. The Act is based on English Evidence law with few exceptions.
  • It is a special law which defines, consolidates and amends the laws of evidence.
  • The Act came into force on September 1, 1872.
  • It applies to the whole of India.
  •  The Act has 167 Sections divided in 3 Parts and 11 Chapters and 1 Schedule.
  • The Act applies to all judicial proceedings in a court including court martials other than courts martial convened under the Army Act, the Naval Discipline Act, the Air force Act.
  • It does not apply on affidavits presented to any Court or Officer and arbitration.
  • The Indian Evidence Act ,1872 applies to both civil and criminal proceedings.
  • The Act deals particularly with the subject of evidence and its admissibility.
  • Evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.
  • The Act stipulates that evidence in a court must be given of facts in issue and relevant facts alone.
  • It is dynamic in nature because it has to change with change in the society and technology.
  • It can be enforced with retrospective effect.
  • It is โ€˜Lex Foriโ€™. Lex Fori means the law of place where the question arises.
  • The Act is not exhaustive. There are many statutes which supplement the Evidence Act  (IPC, CrPC and CPC).

Scheme of the Indian Evidence Act:

There are 3 Parts and 11 Chapters of the Act, The Parts are as follows:

  • Part I named Relevancy of Facts consisting of Chapters I and II
  • Part II named On Proof consisting of Chapters III to VI
  • Part III named Production and Effect of Evidence consisting of Chapters VII to XI

The Chapters are as follows:

  • Chapter I: Preliminary (Ss. 1 – 4)
  • Chapter II: Of the Relevancy of Facts (Ss. 5 โ€“ 55)
  • Chapter III: Facts Which Need Not Be Proved (Ss. 56 โ€“ 58)
  • Chapter IV: Of oral evidence (Ss. 59 โ€“ 60)
  • Chapter V: Of Documentary Evidence (Ss. 61 โ€“ 100)
  • Chapter VI: Of the Exclusion of Oral by Documentary Evidence (Ss. 91 โ€“ 100)
  • Chapter VII: Of the Burden of Proof (Ss. 101 โ€“ 114 A)
  • Chapter VIII: Estoppel (Ss. 115 โ€“ 117)
  • Chapter IX: Of Witness (Ss. 118 โ€“ 134)
  • Chapter X: Of the Examination of Witness (Ss. 135 โ€“ 166)
  • Chapter XI: Of Improper Admission and Rejection of Evidence (S. 167)
  • Admissibility of electronic evidence was added by the Indian Evidence (Amendment) Act, 2000 wherein the act recognized electronic records as evidence and introduced new provisions to govern the admissibility and proof of electronic records in court. It also added a new definition of โ€˜electronic recordโ€™ and โ€˜computerโ€™ to the Act.
  • Admissibility of the opinion of the examiner of electronic evidence added by the Information Technology (Amendment) Act, 2008 introduced Section 45A, which provides for the admissibility of the opinion of the examiner of electronic evidence if certain conditions are met.
  • Expert evidence under Section 45 was added which provides for the admissibility of expert evidence in court on any matter within their expertise.
  • Admissibility of secondary evidence rules were changed and newly introduced and the definition of secondary evidence was expanded.
  • The JS Verma Committee recommended that judging a woman based on her past relationship with the accused should be considered inapt in deciding whether she consented or not which led to the 2013 amendment to the Indian Evidence Act. The 2013 Criminal (Amendment) Act amended Section 53A of the Indian Evidence Act restricts courts from considering evidence based on the victimโ€™s character. Section 146 was amended to ensure that no questions will be asked of rape survivors about their character or sexual experience to prove their consent. The 2013 amendment also introduced a minimum sentence of 7 years imprisonment in cases of rape.
  • The Criminal Law Amendment Act, 2018 added Section 53A to deal with the evidence of character or previous sexual experience not relevant in certain cases substituted with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB.
  • The Criminal Law Amendment Act, 2018 added Section 146 which deals with questions lawful in cross-examination.

Evidence Act is “Lex Fori”:

The term “Lex Fori” is a Latin phrase that translates to “law of the forum” or “law of the court.” โ€œLex Foriโ€ means the law of the country in which an action is brought. It refers to the principle that the procedural rules and laws of the jurisdiction where a legal action is being heard or adjudicated govern the proceedings of the court. In the context of evidence law, the term “Lex Fori” implies that the rules and procedures related to the admissibility, presentation, and evaluation of evidence are determined by the laws of the forum or the jurisdiction in which the legal proceedings take place. Thus, the Evidence Act is “Lex Fori”. It means evidence is one of those matters which are governed by the law of the country in which the proceedings take place (lex fori) .

All questions relating to the admission or rejection of evidence shall be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits to enforce it. Where evidence is taken in one country in aid of a suit or action in another country, either on ordinary commission or with assistance of local courts, the law applicable to the recording of the evidence would be the law prevailing in the country where the proceeding is going on. For example, A lends money to B in England. they enter into a contract according to the English law. A brings an action against B in a court in India. A tenders evidence to prove his debt which is admissible under the law of England but is inadmissible under the law of india. The evidence is admissible so it cannot be adduced.

The principle of “Lex Fori” underscores the importance of understanding and adhering to the procedural rules of the jurisdiction where legal proceedings are taking place. It ensures consistency and fairness in the application of evidentiary rules within a particular legal system.

Conclusion:

Before British rule in India, there were many Princely States, every one of them had their own the law of Evidence. The main object of the Act is to consolidate, define and amend the Law of Evidence. After independence, there was a merger of princely states into the Indian Union. Both the substantive as well as procedural laws have been made consistently relevant to all States. The objective of the Evidence Act is that is the Court has to find out the truth on the basis of the facts brought before it by the parties to meet the ends of justice as expeditiously as possible. 

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