History of Evidence Act, 1872

History of Evidence Act, 1872

Introduction

The  Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the courts of law. The enactment and adoption of the Evidence Act was a path-breaking judicial measure introduced in British India, which changed the entire system of concepts pertaining to admissibility of evidences in the courts of law. Up to that point of time, the rules of evidences were based on the traditional legal systems of different social groups and communities of British India and were different for different persons depending on his or her caste, religious faith and social position. The Evidence Act removed this anomaly and differentiation, and introduced a standard set of law applicable to all citizens.

The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitzjames Stephen, who could be called the founding father of this comprehensive piece of legislation. The Evidence Act, identified as Act no. 1 of 1872, and called the  Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st September 1872. Over a period of approximately 140 years since its enactment, the Evidence Act has basically retained its original form except certain amendments from time to time.

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 After the Independence of Bangladesh in 1971, the Act continues to be in force in Bangladesh, however it was repealed in Pakistan in 1984 by the Evidence Order 1984 (also known as the "Qanun-e-Shahadat").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 also applies to all judicial proceedings in the court , including the court martial as well. However, it does not apply to affidavits and arbitration.

Law in Bangladesh ( British India) has evolved from religious prescription to the current constitutional and legal system we have today, traversing through secular legal systems and the common law.

Secular law in British India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16^th – 19^th centuries) with the latter giving way to the current common law system.

Law in British-ruled India

The common law system – a system of law based on recorded judicial precedents- came to British India with the British East India Company.  The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire it saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which opened up the profession regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872).

Confusion in the Beginning

There was at first confusion as to the applicable law of evidence in the Courts of India. It was because of introduction of English law from 1773 to 1783 through Regulations in the three presidencies and the pre existing Muslim and Hindu Law. There were differences of opinion regarding the different statutes of English law prior to 1726; whether they were applicable to British residents only or to natives also.

 

The Law in The Presidency Towns

It is claimed by some of the authors that English law prevailed in the Presidency towns from 1726. Some rules were found in subsequent statutes which expressly extended to India. An initiative was taken by the British government to introduce English law in India in 1773. In pursuance of the Regulating Act of 1773 the Supreme Court was established by Royal Charter dated 26 March,1774 in Calcutta. The Regulating Act of 1781 which was passed to explain and amend the Act of 1773 mentioned in the preamble that, “inhabitants should be maintained and protected in the enjoyment of all their ancient laws, usages, rights and privileges.” The Muslims and Hindus were to be ruled by their personal law for contractual matters, inheritance rights etc. Section 17 of the same Act provided that  the Supreme Court might frame and execute rules, which would accommodate the religion and manners of the natives, so far as the same might consist with due execution of laws and attainment of justice. 1781 is also the year of termination of many confusion as the era of independent Indian legislation started.  A uniform system of legislation prevailed only at the close of 1807.  (Within the Presidency towns of Calcutta, Bombay and Madras, the courts established by Royal Charter followed the English rules of Evidence.)

The Law in the Mufassil

Outside the Presidency towns there was no fixed rules of Evidence. The law was vague and indefinite. Customary law also prevailed The Mufassil Courts used to be guided by occasional directions and a few rules of evidence and procedure  contained  in the Regulations made between 1793-1834 for the Presidency towns.  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 not also 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. A vague customary law of evidence, partly drawn from Hidaya and decision of Muslim law officers, partly from English text-books and arguments of the English barristers and partly from lectures delivered since 1855 in the Presidency towns.  In 1871 in the proceedings of the Legislative Council on 18 April, Fitzjames Stephen, when introducing the Bill on Evidence Act, expressed his views that it would be exceedingly difficult to say precisely to what extent the English law of evidence appears to be in force in British India. Till 1864 the Judges were assisted by the Maulvis.  

Regulations and Acts

A series of Regulations and Acts were passed for a period of 77 years in matters relating to evidence and witness testimony. All laws passed after 1781 saw a greater understanding of the existing law of the country.

Admissibility of a non-Muslim witness in criminal cases  in Bengal (Section 56, Bengal Regulation IX of 1793)

All persons are competent witnesses who have arrives at years of discretion and are of sane mind ( Section XXXIII, Cl. First, Bombay Regulation IV of 1827) The Court may entertain evidence of a witness who is  a convict, or relative, or inimical or interested, if it seems conducive to the ends  of justice (Section XXXIII, Cl. Second, Bombay Regulation IV of 1827) 

The above rule extended to criminal cases (Section XXXV, Cl. First, Bombay Regulation XIII of 1827)

Accomplice could be pardoned on his promising fully and faithfully to disclose all the circumstances within his knowledge and to give his evidence throughout the trial without prevarication or fraud in a case of murder or other offence of highly atrocious nature. The pardon could only be granted if it appeared that the prosecution would fail altogether and it is necessary to procure the conviction or apprehension of criminal/s. (Section XXXIV, Cl. First, Bombay Regulation XII of 1827)

The evidence of an accomplice shall operate against a prisoner if it corroborates with other witnesses or strengthens impressions produced by the circumstances. Section XXXV, Cl. Second, Bombay Regulation XII of 1827)

The pardon to an accomplice in treason cases will be directed by the government. Section XXXVI,  Bombay Regulation XII of 1827)

In a criminal trial, the judge shall direct the examination of a witness if he is a non Muslim, or police officer, or a government officer or of any other description   despite the objection raised by the Muslim law officer which objection if seems to be unreasonable or insufficient to him. Section VIII, Madras Regulation I of 1825)

Evidence Admissible of convicted persons in civil or criminal cases (Act XIX of 1837, Act VII of 1844)

relatives are competent witnesses(Section 3, Act XIX of 1853)

interested witnesses are competent to testify (Act IX of 1840, Act VII of 1844, Section 3, Act XIX of 1853)

parties both competent and compellable (Sections 2, Act XV of 1852 and 3, Act XIX of 1853)

Initially husband and wife were declared not to be compelled to give evidence for or against each other. ( Section 4, Act XV of 1852) Later the rule was relaxed in Bengal. The exception was extended to communications between married persons, which were considered to be privileged unless the marriage was in dispute (Section 4, Act XIX of 1853)

Act XIX of 1853 was applicable to Bengal only.

Act II of 1855 contained a substantive part of  the law of evidence before 1872 was passed. Some of the above rules of competency were re declared by this Act. For example

no interested witness or relative  is incompetent to testify (S. 18)

parties to the suit are competent, may be compelled to testify and produce documents (S. 19)

husband and wife are competent witnesses for or against each other in civil suits. Communication during marriage are considered as privileged matter unless the marriage is in dispute (S. 20)

Child under seven who is incapable of understanding and giving rational answers is incompetent to testify (S. 14, cl.1)

a person of unsound mind is incompetent to testify ( S. 14 cl. 2)

solitary witness shall have full credit except in cases of treason, perjury and accomplice testimony. (S.28)

Dying declaration is a good piece of evidence even when there is subjective hope of  recovery. (S. 29)

Admissibility of documentary evidence (Ss. 39-44)

Judicial Notice (Ss. 2, 6, 11)

Authentic documents ( Ss. 7-10,13)

What may be proved (Ss. 12, 35, 36, 37, 49)

primafacie evidence of a certain fact ( Ss. 5, 38)

presumption of documents (S. 50)    

Thought to Enact Law

Attentive and anxious consideration was given to enact law for the land which will follow English rule but once enacted it will be the law of India on the subjects it embraced.

Reason could be

a system of law was necessary to safeguard English landowners in the Mufassil towns.

Three Presidency towns formed only a little portion of the vast empire where the right of the British landowners were safeguarded.

The rest of the Mufassil towns were ruled by the Islamic, Hindu and customary law. The English traders were exempt from the application of Islamic criminal law and decisions of the native judges.

A system of law was necessary  for the future administration of the country for prospective business.

Debate in Benthamite England to re arrange existing law could be a reason.

Enactment Process

At length a code of evidence was drawn up and passed into law under the auspices of Fitzjames Stephen. The commissioners were appointed in England  to prepare a substantive law for India. Accordingly they framed a draft code of the law of evidence containing 39 sections. In the fifth report on the draft code of evidence in 1868 the commissioners admitted that much of the English practice was unsuited to the various states of society and different forms of property which were to be met with in India. In October, 1868, after adding two more sections, this draft code was introduced by Sir Henry Summer Maine, and referred to a Select Committee, as a Bill to define, and amend the law of evidence. This Bill was published in a Gazette and circulated to local authorities for general information but it never got beyond the first reading.  It was circulated for opinion to local governments, and was pronounced by every legal authority to which it was submitted  to be unsuitable to the wants of the country.  The chief objection to it was not sufficiently elementary for the officers for whose use it was designed, and that it assumed an acquaintance on their part with the law of England, which could scarcely be expected of them.

A new Bill of 163 sections in a form different from the present Evidence Act of 1872 was prepared by Fitzjames Stephen. The new Bill was printed, circulated and is claimed by English writers to have been very freely criticised.  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 recast it and it ultimately passed as Act I of 1872.

 

 27 September 2011