Law of evidence in ancient India (Hindu

period)

The ancient Hindu period had the origin of the concept of evidence and for
that matter, Hindu Dharma Shastra had to be referred. Hindu Dharma
Shastra states that the aim of any trial is to find out the truth. Yajnavalkya
also states that the king must always give preference to the true facts and
discard what is fraudulent. The Hindu law (Manusmriti) giver took every
precaution in the case where the two parties have any contradictory claims.
It is written in the shastras that whichever party is coming in the court must
admit the truth. Manu said that one who presides over the tribunal that is the
king must always find out the truth and determine if the testimonies of the
witness, the description, time, and place of the incident provided in the
tribunal are correct and thereafter pronounce the true judgment. Vashishtha
lays down three kinds of evidence that are Likhitam, Sakshino, Bhukti,
Parmanam, Trividham, Smritham that Lekhya documents, Sakshi (witness)
and Bhukti (possession). In ancient Hindu law, there was a court where the
king presided and it was the highest court in ancient India. The court was
situated in the capital city at the Royal Palace. The king (Rajah), the judges
(Sabhyas), and the Chief Justice (Pradvivaka) were the officers of the court.
The king at that time had the power to pass the final decree in consultation
with the final opinion of the chief justice and the duty of the judge was to
look into the merits of each case.

In ancient India, there were no technical procedures to provide justice to the

aggrieved person in the court. The base on which the judgement was
pronounced was Dharma. Soon after filing the complaint, a summon was
given to the opposite party to hear them as well. The rules were set for
admission, denial, confession, avoidance, and res judicata. The witnesses
and documents produced by them in support of the charges were conducted
at the trial session and the parties themselves had to produce witnesses. The
king was not to delay any examination of witnesses and he, along with the
members of the court present, was supposed to examine the witnesses and
statements made by them.

Dharmanikarana is the position by witnesses inside the hall of justice and not
anywhere else. The evidence given by the witnesses must be in the presence
of the plaintiff and of the defendant depending on the case and before giving
any kind of evidence, an oath must be taken by the witness after taking off
shoes, turban, stretching out the right hand and taking in his hand, cow dung
or any sacred grass as the case may be and then speaking the truth. In case
any false evidence has been presented in the court, the highest punishment
given should be capital punishment. Each witness should be questioned by
the judge separately and the words of the witness must be taken down as
narrated and no changes could be made in the statements of the
witnesses. Dharma Shastra and Manusmriti were among them which were
written between 200 BC and 100 AD. 

Manusmriti was the landmark in the history of Hindu law. After Manusmriti,
Yajnavalkya, Narada, and Katyayana included the law of evidence in their
smritis. According to the Manusmriti, once the answers are submitted by the
parties, the evidence must be produced before the court. In order to
systematize Manu’s rule, Yajnavalkya made it compulsory to add three
proofs, that are documents, witnesses, and possessions. Narada also repeats
the three kinds of proofs specified by Yajnavalkya. Narada also explained the
views of Manu on witnesses and divided them into 11 classes. The two broad
headings of proof by Narada for human and divine-human comprised
documentary and oral evidence and divine included ordeal by balance and
the rest. The formula of four feet of legal proceedings explained by Brihaspati
and Narada was followed by Katyayana. The four stages were Purvapaksha
(plaint), Uttara (reply), Pratyakalita (deliberation as to burden of proof), and
Kriyapada (adducing of proof). After submission of the evidence, the court
was to deliver its judgment. The three pieces of evidence namely documents
(likhita), witnesses (sakshi) and possession (bhukti) were prescribed by
Yajnavalkya and Katyayana.
Law of evidence in medieval India (Muslim
period)

The Muslim kings began to invade India since the beginning of the 12th
century. The Muslim kings established a dispute resolution system according
to Islamic law which was based upon the holy Quran in medieval India. This
concept of justice in Islam was then introduced. There was a book written by
Sir Abdul Rahim in regard to the law of evidence called Muslim jurisprudence.
There was no real concept, in highly developed Muslim, of rules of evidence.
Al Quran has been one of the attributes of God’s decree more on Justice. 

The rules of evidence have become more advanced and modern.

Under Muslim law, the evidence is divided into two parts, oral and
documentary. Oral evidence is divided into two parts: direct and
hearsay. Ancient Muslim law also recognised documentary evidence. Oral
evidence was preferred more than documentary evidence because certain
documents from people like women, children, drunkards, and criminals were
not accepted in the court of law. Also, when the documents were produced
before the court it was preferred by the court to examine the party which
produces the document. Quajis was consulted to resolve the disputes. The
interpretation of the substantive and procedural laws was done according to
the tenets of the Quran, sunnah, ijma, and qiyas. In case of any wrongful
act, the plaintiff was required to go to the Quazi. During the trial, the
presence of both the parties was required and the Quazi was not allowed to
pass an ex parte decree. The trial procedure was followed by questions and
answers that were asked by Quazi. Preference was given to eyewitnesses
than hearsay evidence. The evidence was given by at least two men and one
or two women were essential in Islamic law. Evidence provided by Hindu was
not admissible against the Muslims. 

Law of evidence in British India (Evidence

law’s historical background)
The current enactment that governs the admissibility of evidence in the court
of law was given by the British back at that time. But before the British
period, the rules governing evidence were based on traditional and local legal
systems of people residing in India. These rules were different for different
groups, castes, and communities. When the British East India
Company came into place, it was granted the Royal Charter by King George I
in 1726 to establish a court in Bombay, Madras, and Calcutta. Those courts
at that time followed the English rule of evidence law. But in muffasil courts,
there were no such laws related to evidence. Therefore, the difference of
opinion created a huge chaos in muffasil courts.

There was a case of Khairullah where Chief Justice Peacock observed that the
English law of evidence was not followed by muffasil courts and Hindu and
Muslim laws were also not applicable to those courts. Because of all these
confusions created with regard to the law of evidence, the rules related to
evidence were not satisfactory at all. In order to bring proper laws related to
evidence, the codification of laws was desired and the British government
took the first step in 1835 by passing the Act of 1835 where there were 11
enactments in total that were passed to deal with the law of evidence. In
1868, another draft was made by a commission that included 39 sections.
The fifth report of the draft was admitted by most of the English laws but it
was not suitable for the Indian society. In October 1882, more sections were
added in the draft by Sir Henry Summer Maine, which was referred to as a
select committee. It was again held to be unfit for the want of the country.
Again in the year 1871, a new bill was introduced that consisted of 163
sections that were similar to the present Evidence Act of 1872 and it was
prepared by Fitzjames Stephen. A minor issue was there in the Bill of
1870 that most of the Indians did not understand English. It was again
passed as the Indian Evidence Act 1872. The Act continued to be in force
even when Pakistan and India gained independence on 14 and 15 August
1947 respectively except for the state of Jammu and Kashmir. When
Bangladesh became independent in 1971, the Act continued to be in force in
Bangladesh but was repealed in Pakistan in 1984 by evidence order 1984
which was known as qanun-e-shahadat.