Indian Evidence Law

                  BRIEF HISTORY OF INDIAN EVIDENCE LAW

The evidence Act which was passed by the British parliament in the year 1972 contains a set of rules and regulation regarding admissibility of the evidences in the court of law. These provisions speak about both procedure and rights, as it provides the procedure as to how to proceed to the court or how to establish our claim before the court.  The Evidence Act, identified as Act no. 1 of 1872, and called as the Indian Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st September 1872. Spread Over a period of approximately 140 years since its enactment, the Evidence Act has predominantly retained its original form except certain amendments from time to time. In order to trace the history of the law of evidence of our country three different periods have to be referred , firstly, the ancient Hindu period;  Secondly, the ancient Muslim period; and Lastly, The British period.

The origin of the concept of evidence can be traced back to the Ancient Hindu Period, for that Hindu Dharma Shastra has to be referred. It has been laid down in the Hindu Dharma Shastras that “the purpose of any trial is the desire to find out the truth”. Yajnavalkya says: “Discarding what is fraudulent; the King should give decisions in accordance with the true facts.” With the aim to discover the truth from the contradictory claims made by two parties in a case the Hindu law giver took every possible precaution. The Shastras commands, that the parties coming into the court must be persuaded to admit the truth. Manu says: “the King presiding over the tribunal shall ascertain the truth and determine the correctness of the testimonies of the witness, the description, time and place of the transaction or incident giving rise to the case as well as the usages of the country, and pronounce the true judgment”. Three kinds of evidences has be laid down by Vasistha which are, Likhitam Sakshino Bukhti Parmanam Trividham Smritham i.e. Lekhya (Document), Sakshi (Witnesses) and Bukhthi (Possession).

For the Ancient Muslim Period, it is often said that there is no real concept regarding any highly developed Muslim rules of evidence. Al – quran stresses more on justice, as justice is considered as one of the attributes of god. Therefore, the rules of evidence are advance and modern. Evidence under Muslim law is divided under the heads of oral and documentary. The oral evidence is further sub-divided into direct and hearsay .Furthermore, the law givers followed the following order of merit, viz., full corroboration, testimony of a single individual and admission including confession. Documentary evidences were also recognised by the Ancient Muslim law. However, Oral evidence appears to have been preferred to documentary. Documents executed by certain class of people were not accepted by the court like women, children, drunkard, criminals etc. Besides, when documents were produced, courts insisted upon examining the party which produced them.

The present enactment governing evidence’s admissibility in the court of law is a result of British period. Before this time, the rules of evidence were based upon the local and traditional legal systems of different social groups residing in India. These rules were different for almost every social group, caste, community etc which created chaos in the legal prevalent legal system of that time. After the advent of British East India Company in the dominion of India, it was granted royal charter by King George I in 1726 to establish Mayor’s courts in Bombay, Madras and Calcutta.  These courts followed the English rules of evidence law. On the other hand, outside these towns in mufassil courts, there were no definite law relating to evidence. Hence, Muffasil courts were having unfettered power in relation to evidence laws. This difference in laws resulted in chaos in the Muffasil courts.  CJ Peacock observed in the case of R v. Khairulla that, “ English Law of Evidence was not the law of the mufassil courts and it was further held that Hindu and Muslim laws were also not applicable to those courts. There being no fixed and definite rules of evidence, the administration of the law of evidence was far from being satisfactory”. 

This created a dire necessity for the codification of laws related to evidence. So, in the light of this whole episode British government took the first step in this respect in the year 1835 by passing the act of 1835. A total number of eleven enactments were passed dealing with the law of evidence but none passed the test adequacy test.  In 1868, a commission was formed to frame a draft code of the law of evidence. 39 sections were included in this draft code. In the fifth report on the draft code of evidence in 1868, the commissioners admitted that most of the English laws were not suitable for the Indian society. In October, 1868, after adding two more sections, this draft code was introduced by Sir Henry Summer Maine, and referred to a Select Committee.  It was circulated for opinion to local governments, and was pronounced by every legal authority to which it was submitted  to be unfit to the wants of the country.  The predominant objection to it was not suitable for the officers for whose use it was designed.

In the year 1870, a new bill containing 163 sections in a form different from the present Evidence Act of 1872 was prepared by Fitzjames Stephen. It is not clear if it was criticised by the people of the country for whom the law was to be passed most of whom, even the elites did not know English. Fitzjames Stephen recasted it and it ultimately passed as Indian Evidence Act, 1872. When Pakistan and India gained independence on 14th and 15th August 1947 respectively, the Act  continued to be in force throughout the Republic of Pakistan and India except the state of Jammu and Kashmir. After the Independence of Bangladesh in 1971, the Act continues to be in force in Bangladesh, however it was repealed in Pakistan in 1984 by the Evidence Order 1984 (also known as the “Qanun-e-Shahadat”). It is applicable to all judicial proceedings in the court, including the court martial as well. However, it does not apply to affidavits and arbitration.

 

 

 

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