Essay on the Brief History of the Law of Evidence in India

The word evidence is derived from the Latin word evident or evidere, which means “to show clearly, to discover clearly; to ascertain; to prove”.

In all civilized countries of the world, the law of evidence is based on the following two axioms, viz.—

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(i) No facts other than those having some connection with the matter in controversy should be gone into by the Court. In other words, only facts having a rational probative value should be admitted in evidence.

(ii) All facts having rational probative value are admissible in evidence, unless excluded by some rule of paramount importance, as for instance, a confession made by a client to his advocate.

However, until these rational rules were evolved, trials in various parts of the world were based on all possible irrational methods, as for instance, trials by ordeal (where the hot iron and boiling water methods were used), or the corpse-retouching method (where the corpse was supposed to react in several ways, e.g., opening an eye, pointing a finger, oozing blood, etc.). Even today, one horrible practice which is still in vogue is torture, and cases are not rare where third degree methods are resorted to for gathering evidence, even in the so-called developed countries of the world.

Before the Indian Evidence Act was passed, there was no compre­hensive or systematic enactment in India on this subject. In the Courts established in the Presidency towns of Calcutta, Bombay and Madras, the English rules of evidence were followed. However, outside these Presidency towns, there were no fixed rules of evidence.

The Mofussil Courts applied rules which were both vague and indefinite, and at times, also rules based on customary laws prevailing in some parts of the country. However, there being no definite or fixed rules, the administration of this important branch of the law was far from satisfactory.

The first step was taken in 1835, when an Act was passed on this subject, and was made applicable to all Courts in British India. Then, in 1855, another Act was passed on this subject, and although this Act did not contain a complete body of rules, it nevertheless embodied some important and valuable provisions on this topic.

It became apparent, especially in legal circles, that the state of this branch of the law was quite fluid, and urgent reforms were called for. Commenting on the state of the law at that time, Field remarks that the entire Indian Law of Evidence, as it then existed, could be divided into three portions, namely, one portion settled by express enactments, another settled by judicial decisions, and a third (and the largest) portion which was unsettled, and which remained to be classified under either of the other two portions.

It was, therefore, decided to enact a formal piece of legislation on this subject. The need of the day appeared to be the introduction into India of the English Law of Evidence, which was broad-based on experience and learning of the English judges, with such modifications as the peculiar conditions of this country would require.

In 1868, a draft Bill on the subject was prepared and circulated to the local governments. However, this Bill did not see the light of the day and was discarded after its first reading in the legislature. The unanimous opinion of local authorities at that time was that this Bill was unsuitable to the needs of the country.

It was after this that a fresh Bill was tabled, which finally became law in shape of the Indian Evidence Act, 1872. This Act is based mainly on the English law of evidence, and the plethora of rules and principles to be found in the jungle of English law has been classified and modified, although within a very narrow compass.

There is no doubt that this branch of the law covers a very vast ground, and one can appreciate the difficulty in compressing this wide field in merely one hundred and sixty-seven sections. This Act has now been in force for about one hundred and forty years, and valuable case-law has sprung up in this field. An attempt has been made in this book to deal only with the most important cases falling within the fold of this interesting branch of the law.

The Indian Evidence Act is not exhaustive, i.e., it does not purport to contain all the rules of evidence. For the interpretation of the sections of the Act, the Courts can look to the relevant English Common Law. However, the Courts cannot import any principle of English Law relating to evidence which is inconsistent with what is laid down by the Act.