HISTORY OF LAW OF

EVIDENCE IN INDIA
*******
The History or Evolution of Law of Evidence in India may be divided
in three parts:

1. DURING PERIOD(s) OF HINDU KINGDOMS (HINDU INDIA)

2. DURING PERIOD(s) OF ISLAMIC RULERS (MUSLIM INDIA)

3. DURING PERIOD OF BRITISH RULE (BRITISH INDIA)

1. Hindu Period / Ancient India

For further research and studying the ancient judicial systems, please consult:

1. Radhakumud Mukherjee’s “Endowment Lectures on Hindu Judicial

System”, delivered by Sir S Varadachariar and published by the
Lucknow University;

2. The “Tagore Law Lectures 1950”, on evolution of ancient Hindu law,

delivered by Dr NC Sen Gupta; and

3. The monumental work of Dr PV Kane’s “History of Dharma Shastras,

vol III”.
The first source or proof of existence of the law of Evidence can be traced
back to the DHARMA SHASTRAS

The Four extant Dharma Shastras are:

1. MANU-SMRITI (2nd to 3rd century CE): It is the earliest work of the Dharma
Shastra. The text influenced various Hindu Kingdoms across India, Cambodia and
Indonesia. Some medieval era Buddhist laws of Myanmar and Thailand are also ascribed
to Manu.

2. YAJNAVALKYA-SMRITI (4th to 5th-century CE): It is regarded to be the “best

composed” and “most homogeneous” text of the Dharma Shastra tradition because of its
superior vocabulary and level of sophistication.
3. NARADA-SMRITI (5th to 6th-century CE): It has been called the “juridical text
par excellence” and represents the only Dharma Shastra text which deals solely with
juridical matters and ignores those of righteous conduct and penance.

4. VISHNU-SMRITI (7th-century CE): It is one of the latest books of the

Dharmaśāstra tradition in Hinduism. It focuses mainly on bhakti tradition.

The manuscripts of BṚAHASPATI-SMIṚTI and the KATYAYANA-SMṚITI have not

been found. Both had been predominantly devoted to judicial process and jurisprudence.
Their verses have been cited in many other texts, and scholars have extracted these cited
verses, thus creating a modern reconstruction of these texts. Around 2,400 verses of the
lost Bṛahaspati-Smṛiti have been collected.
The Dharma Shastras always recognized that the purpose of a TRIAL is
the quest to ascertain the TRUTH.

They emphasize that a judge, by his skill, should extricate from a case the
deceit, as a physician takes out from the body, the iron dart by means of
surgical instruments.

Yajnavalkya declares, “discarding what is fraudulent the king should give

decision in accordance with true facts.”
The early law-givers recognised from the beginning, that a proceeding in a
court of law often involved suppression of facts (suppressio veri) and
suggestion of falsehoods (suggestio falsi). Therefore, Hindu evidence law
procedure took every possible precaution, consistently with the conditions or
knowledge of the time, to secure the discovery of truth.

It was often enjoined that even after coming into court, the parties may be
prevailed on to admit the truth. The court was accordingly asked to make
such an attempt. According to Mitakshara, a decision on evidence could
sometimes be wrong.

It was only when no agreement was possible, that a trial had to proceed.
Manu said: the king presiding over the tribunal shall ascertain the truth and
determine:

a) the correctness of the allegations regarding the subject of the suit;

b) the correctness of the testimonies of the witnesses;

c) the description, time and place of the transaction or incident giving rise to
the case; and

d) the usages/customs of the country

AND THEN PRONOUNCE A TRUE JUDGMENT.

Judicial proceedings were divided into four main heads:

1. Bhasa Pad or Pratijna (The Plaint)

2. Uttara Pad (The Written Statement)

3. Kriya Pad (Proof or Evidence)

4. Nirnaya (Judgment)
 NYAYA SUTRAS –

It is believed that the Nyaya-sutras had been composed

by Gautama or Akshapada around the 2nd century BCE.
However, there is ample evidence that many sutras were
subsequently written by other scholars and interpolated in the
Nyaya Sutras.

Book 2 of the Nyaya Sutras deals with PRAMANA which gives

the means or instruments of cognition.
The Nyāya Sutras asserts and then discusses four reliable means of
obtaining knowledge (Pramāṇa). These are:

A. Pratyakṣa (Perception),

B. Anumāṇa (Inference),

C. Upamāṇa (Comparison and Analogy) and

D. Śabda (word, testimony of past or present reliable experts)

In the Dharma Sastras four kinds of proof were generally
recognized, namely:

A. LEKHYA (Documents);

B. SAKSHI (Witnesses);

C. BHUKTI (Possession); and

D. DIVYA (Ordeals).
 LEKHYA
Brahaspati Smriti says: “Human memory is frail, within a six months time even doubts
will arise among men in regard to a transaction. Hence God, invented the letter
occurring in writing.”

Documentary evidence was classified under three heads:

1. RAJASAKSIKA – Documents executed in the King’s court by the King’s clerk and
attested by the hand of the Presiding Officer;

2. SASAKSIKA – Documents written by anyone, executed privately by parties, and

attested by witnesses; and

3. ASAKSIKA – Documents written entirely in the hands of the party itself.

Vishnu and Yajnavlkya mention Lekhya as the first means of proof.

Initially documentary evidence was preferred to oral evidence as in the

present day, however administrators were aware of the weaknesses of
documentary evidence and were fully aware that forgerers were also at
work. Manu uses the word ‘Karana” in the sense of document, obtained by
coercion and to fabricated royal edicts.

The provision made in the dharma shastras about examination and proof of
questioned or suspected document is strikingly modern.

There were rules for testing the genuineness of documents by comparison of

handwriting in question, particularly in cases of writers who were dead.
The law-givers emphasised the necessity of attestation by witnesses. Some
texts also refer to some kind of notarial system to safeguard the genuineness
of documents.

The attestation of a document was considered vitiated, if the attestation was

by a witness, who was guilty of having done evil things, or it was written by
a scribe of bad character. So too were documents made by women, children,
dependants, lunatics, inebriates, or persons under fear, as well as documents
which were against the usage/customs of the country.

A document was said to be admissible, if it was clear and in accordance with

law and contained no erasures of letters.
The portions dealing with documentary evidence in dharma shastras in later
times came to contain elaborate rules, classifying them into public and
private, ancient and modern, indicating the relative strength of various kinds
of documents and the methods of proving them.

Yajnavalkya divides documents into two categories:

a) Rajkiya (Public)

a) Janpada (Private)
According to Brahaspati, Rajkiya documents are of three kinds :

(1) Sasana (a royal grant of land),

(2) Jayapatra (a judgment deciding a law suit),

(3) Prasadapatra (a deed showing the king’s pleasure at the

devoted service or bravery of a person.)
 SAKSHI
The adduction of oral evidence was an important feature of the Hindu law of
evidence. Kautilya, laid great stress on the need of witnesses. In his famous
work ‘Arthasasthra’ he said:

“The parties shall themselves produce who are the witnesses and who are not
far removed either by time or place. Witness who are far away or who will
not stir out shall be made to present themselves by the order of the
judge/King.”

According to Kautilya the witness should be a person of integrity and

character, and should be given due protection, against injury or insult.
Kautilya has listed a number of people who are unfit for being witnesses,
like, wife’s brother, co-partners, prisoners, debtors, enemies etc.

According to Manu, persons entering into contract should take as witnesses

persons of the same sex or group.

This rule was also necessary as customary law at that time was very
important. Persons in the same customary group had the knowledge of the
different customs of the groups and, therefore were considered to be
appropriate witnesses.

It was also specified that the evidence of a witness must be direct and should
not be indirect. It should not be, what is, called hearsay.
Medhatithi (one of the oldest and most famous commentator on Manu-
Smriti), said that, when a person hears a fact from another and comes
forward as a witness, it is hearsay, which is not legal evidence.

There was a sharp distinction between the adduction of oral evidence in civil
matters and criminal offences.

As pointed out by the late B Gururaja Rao in his booklet, Ancient Hindu
Judicature, ancient Hindu Law, insisted on high moral qualifications in a
witness in civil matters and did not permit any one being picked up from
streets or from the court premises and made to depose in courts.
Some common qualifications mentioned in the Dharma Shastras for
witnesses in civil matters are that the witnesses should be:

1) as many as possible,
2) faultless as regards performance of their duties;
3) worthy to be trusted by the court; and
4) free from affection for or hatred against either party.

It was carried to such an extreme limit that witnesses whose credibility

would, according to modern law, be questioned, were, barred as legally
incompetent witnesses.
The ancient law-givers wisely relaxed these restrictions in the case of
witnesses of criminal offences; because they recognised crimes might happen
in forests and secluded places and could only be spoken to by witnesses who
happened to be there, irrespective of qualifications.

The Dharma Sastras go into great details as to the time at which and the
ways in which witnesses are to be examined and how they are to be tested.

The law-givers also state, witnesses should not be so tested suddenly, under
threat or coercion, in a hostile or inimical environment.
In order to create an atmosphere for speaking the truth, our ancients law-
givers invested great solemnity to the holding of courts and enjoined that the
courts should be decorated with flowers, statues, paintings, idols of Gods.

Judges wore distinctive robes and sat on high pedestals. The courts were held
in the mornings and did not work on full moon and new moon days.

Before giving evidence, the witnesses had to perform ablutions, make a brief
sankalpa, face an auspicious direction and then witnesses were exhorted to
speak the truth in most solemn appeals to their strongest religious motives.
They were ordered to speak the truth on pain of incurring the sin of all
degrading crimes.
Dharma and established custom were usually looked on as inviolable, and
the king’s commands were merely applications of the sacred law. The law
which the courts administered was an amalgamation of sacred law,
contractual relations created by the parties, customs and statutory law.

It was insisted that witnesses must be examined in court and in the presence
of parties. According to Hindu practice, it was the judge or the King who put
questions to witnesses. They were directed to watch the behaviour of the
witnesses and decide upon their reliability.

However, there are indications, that witnesses were also examined on

commission.
According to Vishnu-Smriti:

“a false witness may be known by his altered looks, by his countenance, changing colour
and by his talk wandering from the subject.”

Yajnavalkya states:

“… he who shifts from place to place, licks his lips, whose forehead perspires, whose
countenance changes colour, who with a dry tongue and stumbling speech talks much and
incoherently, who does not heed the speech or sight of another, who bites his lips, who by
mental, vocal and bodily acts falls into a sickly state, is considered a tainted person,
whether he be a complainant or a witness.”

However, Mitakshara states that, these rules are laid down to show the possibility of
falsity but not its certainty.
These rules of evidence were substantially governed by Yajnavalkya’s
general rule:

“Having discarded that which has only an appearance of reality, the king
should decide in conformity with the nature of things, for even an honest
claim, if not properly pleaded, is liable to be defeated by the adverse party
merely satisfying the legal formalities.”
 Some General Rules relating to the examination of witnesses

• It was open to the opponent to bring to the notice of the court, circumstances
disqualifying or discrediting a witness. However, this was to be done when the witness
was giving evidence so that the judge would elicit witness’s answer to the objections.

• It has been pointed out by Dr. Pandurang Vaman Kane (in History of Dharma Sastras),
that witnesses were not permitted to be examined to discredit another witness.

• In examining witnesses, it was enjoined that the presiding officer of the court should
treat them gently and persuasively. If the witness is harshly treated, he might take
fright and thus lose the thread of his narrative and would not be able to remember
material details and unfold the entire narrative in its logical sequence.
• In the Arthasastra, severe penalty was enacted for a judge, who threatens, browbeats
or unjustly silences witnesses, or abuses or defames or asks questions which ought not
to be asked, or makes unnecessary delay and thus tires parties or helps witnesses by
giving them clues.

• Lack of sufficient evidence usually led to the dismissal of case and evidence
constituted the basis of determining the punishment. Cross examination formed a
striking feature of the proceedings of courts.

Some of these rules of questioning witnesses have also been embodied in the present
Indian Evidence Act relating to Examination of Witnesses.
 BHUKTI
Bhukti is derived from the term Bhuj- which means ‘to enjoy, use,
possession’.

Agriculture was the primary occupation and source of the economy in

ancient India, therefore bulk of the civil litigation in an agricultural
economy, comprised mainly of disputes regarding possession of land.

The law relating to possession was well-recognised. It was recognised under

two aspects, namely evidentiary (documents and witnesses) and prescriptive
(possession as evidence of right and title).
There were two kinds of Bhukti:

SAGMA (with right);

&
ANAGAMA (without Right)

AGAM meaning UDGAM (origin) – The root of ownership or the Basis of the
Right.

SAGAM denotes that the permission to use a property was granted by the King or
Land Owner OR property was purchased, or received as a gift, or inherited.

ANAGAMA denotes possession or use without title or permission.

The Agam (Title) and Bhukti (Possession) both were significant:

The emphasis has been put by some on Bhukti i.e., the use of the property
while others have put emphasis on Agam i.e. title of the property.

According to Narada, a man who proves only the Bhukti, without Agam, i.e.,
if the property is Anagama but under use, the King should punish him as a
thief even if he has used the property for 100 years.

Brahaspati says that one loses ones property if one cannot prove possession
or produce documents of title or adduce oral evidence.
Yajnavalkya said, “Where there is not the least possession, there the title is not
weighty.”

Vijnanesvara interprets the statement to mean that transfer of ownership is not

complete without the transfer of possession. He interpreted it to mean that:

“By whichever of the derivative means property is acquired, proprietary right to it

is created only when it is accepted by the acquirer. The transfer of property by the
original owner is implied finally by this acceptance.”
The verse in Narada’s text bearing upon the point is as follows:

“Though a document be in existence and witnesses living, that is no true property

of which possession is not actually held. This is specially true as regards
immovables”

What is meant is that delivery of possession puts title on a sound basis and enhances
its value. Vijnanesvara in Mitakshara describes only the usefulness of possession by
saying that a title unaccompanied by physical acceptance and consequent
enjoyment of the produce is weaker than a title accompanied by such an
acceptance.
Some commentators have said that the use of the property for 20 years damages the
ownership i.e., the ownership ends.

However, according to Mitakshara, the use of the property does not damage the
ownership but the consequence.
I.E.,
If the owner of the property sees another using his property for twenty years and
thereafter disputes it, he will get his property but not the earnings from the property.

Concept of Bhukti can be seen in the Indian Evidence Act in Section 110.

Burden of proof as to ownership. —When the question is whether any person is

owner of anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who affirms that he is not the
owner.
 DIVYA

Divya was limited to more or less exceptional cases of a serious nature,

where the other normal modes of evidence would not be forthcoming.

Such tests were prevalent in ancient India where the appeal was to super
natural power to prove guilt or innocence.

If a man entered a burning fire or into deep water or swallowed poison

remained unhurt or did not die, he was deemed innocent in the eye of law or
his case stood proved.
In later periods instead of ordeals by fire or lethal poison or by drowning, forms of
tests which could successfully be undergone without a miracle, like the ordeals
Kosa, Tula (Balancing) or holding hot metal, came to be substituted.

Kosa - the water used at an ordeal or judicial trial (the defendant drinks thrice of it
after some idol has been washed in it)

According to Yajnavalkya, Narada, Katyayana, Divya should be used only when

Manushya Pramana i.e. Sakshi, Lekhya, Bhukti or Paristhitijanya Pramana
(Circumstantial Evidence) were not available.

Different types of Divya were also prescribed for different Varnas. Brahmins
were exempted from Vish Divya.
 SUMMARY

By the time of the Dharma Shastras, the Hindu law of evidence had attained a
considerable degree of perfection and embodied many modern concepts.

The importance of documentary evidence was fully recognised, and documents

had come to be classified elaborately into public and private, ancient and modern,
and attestation was insisted upon.

An interesting rule which may be referred to, was that when a pre-appointed
witness to transaction was about to die, or who was going abroad, he might inform
another person of all that he knew about the transaction and authorise him to
testify to the same as and when occasion arose.
The law-givers directed, that suspicions did not constitute truth and that there must
be conclusive evidence for guilt, like in modern courts. The burden of proof laid
down by the sastrakarthas wore a remarkable resemblance to many of our modern
concepts.

In the case of accused persons, conclusive proof of guilt was demanded, and the
initial burden of proving the offence was cast upon the prosecuting party, though
in certain cases, the burden of exculpating himself lay upon the accused.

Both witnesses and the accused were protected to this extent by the rules, that a
witness should not be compelled to make a statement, which might incriminate
him.
Further, as the term Sakshi itself connotes, witnesses could only speak to what they had
themselves seen or had heard.

In their endeavour to find out the truth, circumstantial evidence, although admitted, was
cautioned against because appearances could be deceptive.

Referring to bodily injury to complainant, Yajnavalkya warns that they might be

sometimes self-inflicted. Similarly, Narada concludes by saying that someone might
make a mark upon his person through hatred or to injure an enemy.

In such cases, it was mandated that it is necessary to resort to inductive reasoning to

ascertain the fact of the matter and ploys of the parties/witnesses.

The law-givers instructed that evidence must principally be weighed and not counted.
However, it must not be implied that there were no weak points in Hindu
evidence procedure, if judged by modern standards.

After solemn exhortations to witnesses to speak the truth, it is observed that,

perjury from a pious motive is mitigated in certain cases.

Wherever a death sentence could be awarded to a person belonging to upper

classes, by a declaration of the truth, a falsehood was allowed to be spoken,
and such falsehood was considered to be preferable to truth.
Though the greatest importance was attached to the virtues of justice and
impartiality, their conceptions were deeply permeated by the notion of
inequality among the castes and sexes.

The prestige and ascendancy of the higher classes could only be maintained
by a differential treatment to the fourth class. Thus, we find distinctions were
made both in civil and criminal law between castes and sexes, and the
general principle adopted was that rights, duties and liabilities varied with
caste or sex.
 ISLAMIC/MUSLIM PERIOD

For research purposes and studying the ancient judicial systems, please
consult:

1) Sir Abdur Rahim’s Muslim Jurisprudence;

2) Wahed Husain’s Administration of Justice during the Muslim Rule in

India (University of Calcutta Publication); and

3) MB Ahmad, ICSA on Administration of Justice in Medieval India

(Aligarh Historical Research Institute Publication)
By the end of the Mameluke dynasty, the first Muslim dynasty in India,
Muslim rule was well established in India. The Islamic thinking and state
were influenced by Iranian & Byzantine philosophies but Islamic principles
remained integral throughout in the administration of justice.

Men of affairs laid out a great stress on justice and equity in conformity
within the limits of Islam. Contrary to Hindu laws, king was the supreme
authority of rule in Muslim India.

Ziauddin Barani, the main man of affairs in Delhi Sultanate gave an idea of
justice; “adl”, based on equal treatment and supreme authority of justice
above all even for non-Muslim subjects.
After the advent of Mughals, the subcontinent was again divided into several
fragments but the administrative setup of Delhi Sultanate was imitated more
or less by all the rulers.

It became more systematic under Aurangzeb.

The judicial courts under the Mughals were principally of two types—non-
religious and religious.

In the case of Muslims, the non-religious types of criminal cases went to the
kotwal, while the religious and civil cases, such as inheritance, marriage,
divorce, and civil disputes went to the Qazis’ courts.
The Qazi, was the repository of Muslim law, and also attended the hearing
of cases by the executive authority such as governor, faujdar or kotwal, and
assisted them in arriving at a decision consonant with Quaranic precepts.

When both parties in a dispute were Hindus, the point at issue was referred
to Hindu pandits for an opinion. This principle was supported by
the Fatawa-i-Alamgiri, the authoritative digest of Islamic law.

The Muslim laws of marriage, divorce and inheritance were applied to the
Muslims. So far as the Hindus were concerned, Hindu Law was applied in
matters of inheritance, marriage and affairs of a semi-religious nature like
burning of a Sati and dedication of a Dev-Dasi.
In civil disputes between Hindus and Muslims, the law applied was Muslim.

In disputes between Hindus the Hindu ‘Panchayať decided. The caste

organisation was so rigid that not only civil but even some ordinary criminal
matters came within the purview of the caste Panchayat.

In serious criminal matters, Muslim law as modified by the Mughals was

applied both to the Hindus and Muslims.

Sometimes Qazis were helped by Hindu pandits in interpreting the Hindu

laws in matters which concerned the Hindus only.
Many crimes—including murder—were treated as individual grievances
rather than crimes against society and could be compounded on payment of
compensation. The aim of the judicial system was primarily to settle
individual complaints and disputes rather than to enforce a legal code.

Criminal court was normally known as the Diwan-I-Mazalim, the court of

complaints.

Akbar used to spend several hours of the day disposing of judicial cases, and
governors followed the same procedure in the provinces. In the Ain-i-
Akbari we can find instructions issued to a governor detailing the judicial
procedure the governor should follow.
The Quran lays great stress on justice. It holds that the creation is founded on justice and
that one of the excellent attributes of God is “just”. Consequently, the conception of
justice in Islam is that the administration of justice is a divine dispensation.

The Mohammedan law dealt with evidence under the heads of:

Oral
&
Documentary

Oral evidence was sub-divided into direct and hearsay.

Hearsay evidence was not admissible except on such matters as can be known only to a
few persons, such as birth, death and marriage.
There was a further classification of evidence in the following order of merit:

a) Full corroboration (Tawatur),

b) Testimony of a single individual (Ehad); and

c) Admission including confession (Iqrar).

Mohammedan law of evidence as given in the Hidaya states:

“It is an ordained duty, upon witness to bear testimony, and it is unlawful for
them to conceal it, when the party concerned demands it from them.”.
Great attention was paid to the demeanour of the parties:

In famous case before Emperor Shah Jahan, a Hindu scribe sued a Mughal
soldier for enticing away his wife.

The wife denied that the complainant was her husband, but Emperor Shah
Jehan, observing the demeanour of the wife in the witness-box, was not
satisfied with her statement.

Therefore, he suddenly ordered her to fill the court inkpot with ink. The
woman did the work most dexterously, and the Emperor concluded that she
was the wife of the Hindu scribe and granted him a decree.
Witnesses were examined and cross-examined separately out of the hearing
of the other witnesses.

Leading questions were generally not allowed on the ground that this would
lead to the suspicion that the court was trying to help one party to the
prejudice of the other; but if a witness was frightened or got confused, the
judge could put such questions so as to remove the confusion, though they
may be leading questions.

It was enjoined that the questions should be put in such a manner as not to
make the judge liable to the charge of partiality and that he was putting
questions in order to get answers to fact which should be proved by the
witness.
Certain classes of witnesses were held to be incompetent witnesses, namely,
very close relatives in favour of their own kith and kin, or of a partner in
favour of another partner.

Certain classes of men, such as professional singers and mourners,

drunkards, gamblers, infants or idiots, or blind persons were regarded as
unfit for giving evidence.
The Evidence of one witness was made sufficient proof of any fact except on
a charge of treason. A witness might be asked whether he had been convicted
of any crime and he might be cross examined as to previous statements made
by him in writing.

Courts had to ensure that identification of property and of the accused by

witnesses was exact and explicit.

Where witnesses differed, the accused was given the benefit of doubt.

Evidence could be taken on commission; oaths were administered to

witnesses, according to their religious practices.
 DOCUMENTARY EVIDENCE:

Although documents duly executed and books kept in the course of business
were accepted as evidence, oral evidence appears to have been preferred to
documentary. When documents were produced, courts insisted upon
examining the party which produced them.

There were some documents which were not recognized as evidence in the
Muslim Courts. Documents executed by certain classes of persons were
considered as vitiated and were not recognized to be admitted as evidence.
Women, children, drunkard, gamblers, criminals were not considered as
competent to execute any documents.
 CIRCUMSTANTIAL EVIDENCE:

Circumstantial evidence was freely admitted and inferences were allowed to be

drawn, if the facts and circumstances led to the proof of a conclusive nature.

One of the illustrations is, that if a person was seen coming out from an unoccupied
house in fear and anxiety with a knife covered with blood in his hand and a dead body
was found in the house with its throat cut, these facts could be regarded as proof that
the person coming out of the house murdered the person found dead.

Muslim jurists preferred evidence described as “full corroboration”. They insisted on

corroboration of evidence, in criminal cases by the evidence of two men, but in the
case of adultery of four men. But the court could accept the evidence of one witness,
provided it was convincing and irreproachable.
 ADMISSIONS AND CONFESSIONS

Decrees could be given on admission, provided it was unconditional and not

made in jest or under coercion. In criminal cases, a confession was admissible
in evidence, but there are indications that the confession of one co-accused
was held to be inconclusive against the other co-accused, though it was
admissible.

Courts were not bound to accept confessions and they were tasked to look for
further evidence. In one case, Emperor Aurangzeb remanding a complaint,
directed that the Qazi and the Amin should make a thorough inquiry and not
decide the case on a mere admission or denial.
 British Period –

Under The East India Company

The Royal Charter of 1726 provided for establishment of civil and criminal
courts in the Presidency Towns of Calcutta, Madras and Bombay, which
derived their authority from the King instead of the East India Company.

The English rules of evidence were always followed in the courts established
by Royal Charter. Rules from the common law and statute law, which
prevailed in England before 1726, were introduced in the presidency towns
by the Charter.
Outside the Presidency towns, were the Mofussil Courts where there were no
fixed rules of evidence. The law applied in these courts were vague and was
often based on customs, norms, practices and usages of the society.

The Calcutta High Court in R v Khyroollah and Bombay High Court in R v

Ramaswami observed that the English law of evidence was not the law of the
mofussil, however even the rules of evidence contained in the Hindu and
Muhammadan laws were also not being applied.
In the absence of any fixed rules of evidence, the administration of the law of
evidence in Mofussil Courts was not systematic.

Act X of 1835, which applied to all courts in British India, was the earliest
Act of the Governor-General in Council, which dealt with evidence strictly.

Between 1835 and 1853, a series of Acts were passed by the Indian
legislature introducing some reforms for the improvement of the law of
evidence. These Acts embodied with some additions, many of the reforms
which were advocated by Bentham and introduced in England by Lords
Brougham and Denman.
Lord Denman’s Act and Lord Brougham’s Act removed the restrictions as to
interested witnesses and declared the parties to the proceedings, their wives and
all other persons competent as witnesses in the country courts.

Similar reforms were affected by the Acts passed by the Indian legislature, e.g., Act
19 of 1837 which also abolished incompetency by reason of a conviction for
criminal offences. By Act 19 of 1853, many of these reforms were extended to
civil courts of the East India Company in the Bengal Presidency.

Act 2 of 1855 reproduced with some additions, all the reforms advocated by
Bentham and carried out in England by Lords Denman and Brougham. It was
made applicable to all the courts in British India, however, the English law of
evidence was still not the law in mofussil courts.
The following Acts dealt with various aspects of evidence:

a) Acts 19 of 1853

b) Act 10 of 1855 (attendance of witnesses);

c) Act 8 of 1859 (civil procedure containing provisions as to witnesses)

d) Act 25 of 1861 (criminal procedure containing provisions as to witnesses,

confession, police diaries, examination of accused and civil surgeons, reports
of chemical officers and dying declarations); and

e) Act 15 of 1869 (evidence of prisoners)

The courts of the Presidency Towns usually followed English rules of evidence
although the entire English law on the subject was never declared to be applicable
to India by any statute. Only portions of the English law, from time to time, were
introduced by the abovementioned Acts.

There were no complete rules of evidence even in Presidency Towns. Vague and
indefinite customary laws prevailed in different parts of the country, which led to
laxity of evidentiary procedure in the mofussil courts.

Due to the lack of systematic law of evidence and lack of systematic application,
the need was felt for codification of the law of evidence in this country, which
eventually led to the enactment of the Indian Evidence Act in 1872.
 CODIFICATION OF THE INDIAN EVIDENCE ACT

The initial task of drafting an Evidence Bill for British India was entrusted to the
3rd Indian Law Commission, which, under the Chairmanship of Sir John
Romilly (a friend of Jeremy Bentham), presented a draft Evidence Bill to the
Crown along with its 5th report on August 3, 1868.

Sir John Romilly had told David Dudley Field that his New York Codes were “of
great service to his commission, in the preparation of the Indian codes.”

In 1850, a legislative commission in the state of New York, headed by U.S.

attorney David Dudley Field, completed their draft of a Code of Civil Procedure
for the state of New York.
Although the draft of Field’s Code of 1850 was not adopted in the state of New
York, it contained several rules of Evidence, some of which were later also adopted
by Stephen in his Indian Evidence Act such as Section 65(g).

We will later discuss about how Section 65(g) of the present act was adopted and
inspired from the New York Code but never acknowledged by Stephen.

Later that year, on December 4, 1868, the Law Member of the Viceroy’s Council,
Sir Henry Sumner Maine, introduced the Law Commission’s draft to the
Viceroy’s Council and set up a “Select Committee” to prepare a report on the draft
Bill.
This draft introduced by Maine was criticized and said to be far from complete: ill-
arranged.

Soon, Sir James Fitzjames Stephen took over from Maine as Law Member of the
Viceroy’s Council. Stephen was instrumental in drafting much legislation in British
India, most notably the Indian Contract Act, 1872 and the Evidence Act.

Stephen had a very low opinion of the draft prepared by the Indian Law Commission. As
he wrote to his friend, Sir M. Grant Duff, in a letter in March 1870:

“Between ourselves [the Indian Law Commissioners’] evidence act appears to me so

very bad”, and that Maine had “put off the evil day” of resolving the draft until Stephen
got to India.
Under the Chairmanship of Sir James Stephen the Select Committee gave its
Preliminary Report to the Bill prepared by the Law Commission (under Maine). The
Preliminary Report of the Select Committee, together with the Bill as settled by them,
was presented to the Council of the Governor General of India for the purpose of making
laws and regulations, on 31 March 1871.

The Select Committee under James Stephen criticized the Bill as not sufficiently
elementary and being incomplete in every respect. The Preliminary Report stated that:

“After a very careful consideration of the draft prepared by the Indian Law
Commissioners we have arrived at the conclusion that it is not suited to the wants
of this country………….. that the Commissioners’ draft is not sufficiently
elementary for the officers for whose use it is designed, and that it assumes an
acquaintance on their part with the law of England, which can scarcely be
expected from them.”
“Our draft, however, though arranged on a different principle from theirs, embodies
most of its provisions. In general, it has been our object to reproduce the English Law of
Evidence with certain modifications most of which have been suggested by the
Commissioners.”

Several changes were suggested to the draft Bill prepared under Maine and a systematic
order was prescribed dividing chapters such as:

I. Preliminary;
II. The relevancy of facts to the issue;
III. The proof of facts according to their nature by oral, documentary or material evidence;
IV. The production of evidence; and procedure.

For a detailed analysis of the changes made to draft please refer to Lexis Nexis-Woodroffe
& Justice Amir Ali’s Book Law of Evidence.
It was finally passed into law as Act 1 of 1872. The Act received the assent of
the Governor-General on 15 March 1872. It came into force from 1
September 1872.

THANK YOU!