Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Historical Development of Indian Evidence Law

The law of evidence plays a crucial role in the legal system by determining how facts are established in judicial proceedings. In India, the law of evidence has undergone significant evolution, from ancient times through colonial rule to the modern legal framework governed by the Indian Evidence Act, 1872. From 1^st July 2024, a new Evidence Law called the Bharatiya Sakshya Adhiniyam, 2023 has replaced the old Indian Evidence Act, 1972. This article explores the historical development of Indian evidence law, tracing its origins and evolution over different periods.

Vedic Tradition and Law of Evidence

The earliest phase of Indian civilization, during which the Vedas were composed. The Vedas (Rigveda, Yajurveda, Samaveda, and Atharvaveda) are the sacred texts of Hinduism, containing hymns, rituals, and philosophical teachings. Although the Vedas do not directly address the law of evidence in the way modern legal systems do, they lay the groundwork for justice and truth, which are essential elements of law.

• In the Yajurveda, the importance of truthful witnesses is highlighted, reflecting the role of testimony in resolving disputes. The Atharvaveda mentions the role of witnesses who should testify according to what they have heard or observed. The concept of dharma-based truth-telling is embedded in the Vedic worldview, where one who testifies falsely brings dishonour upon oneself and the community.
• The Vedic society placed significant importance on oral testimony, as written documents were not common. Witnesses played a central role in providing evidence in disputes, and their testimonies were taken seriously. Rituals, too, were sometimes used as a way to determine truth, as the Vedic traditions involved divine or symbolic processes for judgment.

The Dharmashastra tradition is a more formalized and systematic body of legal literature that developed after the Vedic period. These texts provide comprehensive guidelines on Dharma (ethical and legal duty), and they cover various aspects of law, including the law of evidence. Among the most important texts in this tradition are the Manusmriti, Yajnavalkya Smriti, and Narada Smriti, which outline rules for judicial proceedings and evidence.

Oaths (Pratigya):

• The Yajnavalkya Smriti acknowledges that taking an oath in front of a deity or sacred fire could validate one’s truthfulness. However, breaking an oath was considered a serious transgression.  The Vedas also refer to the role of oaths (Pratigya) as a form of validation for claims.
• Oaths were considered a way to establish truth and could be used to reinforce testimony. The person taking an oath had to do so with sincerity, and violating an oath was viewed as a severe breach of ethical conduct.

Rules for Witnesses (Sakshi):

• Witnesses were expected to be honest, reliable, and of good character. The testimony of a Brahmin (priestly class) was given higher weight compared to that of others. However, it was still crucial that the testimony was in line with truth.
• Female witnesses were often given less weight, and in some cases, their testimony was not considered valid, reflecting the patriarchal structure of ancient Indian society.
• The Yajnavalkya Smriti, another key Dharmashastra text, outlines the importance of the credibility of witnesses. It stresses the need for impartiality and for witnesses to be above reproach in terms of their personal conduct and character.

Evidence from Written Documents (Lekhya):

• The Dharmashastra also acknowledges the importance of written contracts and legal documents. These documents were regarded as powerful forms of evidence, especially in commercial and property-related disputes. The written word had increasing value over time, especially in the later classical period.
• The Manusmriti provides rules about written contracts and agreements and their role in disputes. Written documents could serve as crucial evidence in proving a party’s claim or obligation.

Confessions (Iqrar):

• Confessions (like in the Vedic tradition) play an important role in Dharmashastra. If a person confesses to a crime or wrongdoing, it is considered a strong form of evidence. However, just like in the Vedic system, it must be voluntary, and there were cautions against coerced confessions.

Judicial Process and Admissibility of Evidence:

The Vedic and Dharmashastra traditions laid the foundation for the Indian legal system, with significant principles regarding the law of evidence. These traditions emphasized truth, righteous conduct, the importance of witnesses, and the use of written documents and oaths in establishing facts. Evidence was typically judged based on its reliability and the integrity of the witness. Circumstantial evidence could be used but was not as valued as direct testimony.

Islamic Influence (Medieval Period)

With the advent of Muslim rule in India (12th–18th century), the legal system was influenced by Islamic jurisprudence, particularly under the Delhi Sultanate and Mughal Empire. The principles of Sharia law governed evidentiary rules, with emphasis on oral testimony and oaths. Evidence law under Sharia is an integral part of the Islamic legal tradition and is deeply rooted in principles found in the Qur’an and Hadith. Islamic law developed specific rules regarding how evidence should be presented and evaluated in courts. It was not law of land.

Categories of Evidence:

In Islamic law, there are multiple categories of evidence that help establish the truth in a case. These include:

• Testimonies (Shahada): Testimonies are considered a crucial form of evidence. In a criminal case, two male witnesses (or one male and two female witnesses in some cases) are typically required for a testimony to be valid. This reflects the principle of ensuring reliability and accuracy in the witnesses’ accounts.
• Oaths (Qasam): If there is no sufficient testimony, parties in a dispute may be required to take an oath, swearing to the truthfulness of their claims.
• Documents (Sahifa): Written documents, such as contracts, can serve as evidence, especially in matters of business, inheritance, or agreements. In this context, Islamic law recognized the importance of written records as a form of preserving evidence. Islamic law prioritized oral evidence over documentary proof, and the credibility of witnesses was paramount.
• Confessions (Iqrar): A confession is an admission by the defendant or accused person, which can be taken as evidence. However, the confession must be made voluntarily and without coercion.
• Qarinah (Circumstantial Evidence): Circumstantial evidence was accepted but had limited applicability compared to direct witness testimony.

Burden of Proof:

In Islamic law, the burden of proof generally lies with the person making the claim. This principle is often compared to modern legal systems, where the party making an accusation must prove their case. For example, in a case of theft, the accuser would have to prove the theft beyond a reasonable doubt through the appropriate types of evidence.

Witness credibility was often influenced by gender and religious identity, with Muslim male witnesses given preference.

Standard of Proof:

• Beyond a Reasonable Doubt: In criminal law, Islamic law emphasizes that severe punishments (like corporal punishment or capital punishment) can only be carried out when the evidence is irrefutable. This includes the testimony of reliable witnesses or confessions.
• Preponderance of the Evidence: In civil cases, the standard of proof is more about the preponderance of the evidence (e.g., more likely than not).

Exclusion of Evidence:

In Islamic law, certain forms of evidence are excluded, particularly those that are considered unreliable or unlawful. For example, if evidence is obtained through bribery, coercion, or deceit, it is generally inadmissible in court. Additionally, circumstantial evidence is usually given less weight than direct testimony or physical evidence.

Use of Legal Maxims:

Islamic jurisprudence developed numerous legal maxims (qawa’id fiqhiyyah) that guided the use of evidence in cases. Some examples include:

• “Certainty is not overruled by doubt”: This maxim suggests that if there is certainty about a matter, it should not be overturned by mere doubt.
• “The burden of proof is on the claimant”: This reflects the principle that the person making an allegation must provide evidence to substantiate it.

British Colonial Influence and Codification

The British introduced Western legal principles, culminating in the codification of laws. The major historical events are:

• The Charter of 1726: Established Mayor’s Courts in Bombay, Madras, and Calcutta, incorporating English legal principles.
• Regulation System (1793-1833): The East India Company established the Adalat system, where evidentiary rules were influenced by a mix of Hindu and Muslim laws.
• Supreme Courts and Sadr Courts (1773 onwards): English judges started applying English common law principles in Presidency towns (Calcutta, Bombay, Madras), while Sadr courts continued indigenous practices in other regions.

Indian Evidence Act, 1872

There were more than 600 princely states in India. Each of them had their own version of evidence law. Recognizing the need for uniformity, Sir James Fitzjames Stephen, a British legal luminary, drafted the Indian Evidence Act, 1872. It was applicable across all courts in British India. It rejected religious bias. There was no distinction based on caste, creed, or religion in witness credibility.

Categorization of Evidence:

• Oral Evidence (Section 59-60): Direct evidence of facts.
• Documentary Evidence (Section 61-90): Records, contracts, and other written materials.
• Presumptions (Sections 114-117): Courts could presume facts under specific conditions.
• Primary vs. Secondary Evidence (Sections 62-65): Differentiating between original and secondary copies of documents.
• Expert Evidence (Sections 45-51): Allowing opinions of experts in various fields.

The Indian Evidence Act of 1872 remains the foundation of evidentiary law in India, ensuring fairness, clarity, and uniformity.

Amendments:

Post-independence, Indian courts and legislatures refined evidence laws through amendments and judicial interpretation.

• Evidence of Electronic Records (2000 Amendment): The IT Act, 2000, introduced Section 65A and 65B to include electronic evidence.
• Expanded Role of DNA and Forensic Evidence: Courts have increasingly relied on DNA analysis and forensic science in criminal investigations.
• Changes in Witness Protection: Various judgments have emphasized the importance of protecting witnesses to ensure fair trials.

The law of evidence in India has transitioned from religious traditions to a codified, rational system under the Indian Evidence Act, 1872. Over time, technological advancements and judicial interpretations have further shaped its application. Today, Indian evidence law continues to evolve, balancing traditional principles with modern legal needs, ensuring justice and due process in the legal system.

Current Indian Evidence Law (Bharatiya Sakshya Adhiniyam 2023):

The Previous evidence law in India the Indian Evidence Act (IEA), originally passed by the Imperial Legislative Council in 1872, during the British Raj, provided for laws relating to evidence and assist courts in establishing facts of the case brought before it and pronouncing judgments based on such facts.

The Bharatiya Sakshya Adhiniyam 2023, which replaced the Indian Evidence Act, 1872 is a landmark legislative effort aimed at overhauling and modernizing India’s evidence laws. It incorporates advancements in technology, aligning with contemporary legal reforms, and addressing long standing issues within the system. It includes various forward looking provisions, such as, expansion of the definition of evidence to include electronic and digital records, expansion of definition of primary evidence, provision for admissibility of electronic or digital records as evidence, exclusion of privileged communication between the Ministers and the President of India from the purview of Courts, provision of certificate for handling of electronic and digital evidence, etc.

Conclusion:

The historical development of evidence law in India is a fascinating journey that reflects the country’s evolving legal and judicial systems. Rooted in ancient legal traditions, the concept of evidence in India can be traced back to the Dharmashastra, Arthashastra, and other early legal texts, which emphasized witness testimony, written documents, and circumstantial proof. During the medieval period, Islamic legal principles influenced the Indian legal framework, introducing new evidentiary rules, particularly in matters of criminal justice and contractual obligations.

However, the most significant transformation occurred during the British colonial era, particularly with the codification of the Indian Evidence Act, 1872, drafted by Sir James Fitzjames Stephen. This legislation revolutionized the Indian legal system by introducing a uniform set of rules governing the admissibility, relevance, and evaluation of evidence in both civil and criminal cases. It marked a departure from traditional and religious-based evidentiary systems, ensuring objectivity, consistency, and fairness in judicial proceedings.

Post-independence, the Indian Evidence Act has continued to serve as the cornerstone of evidence law, albeit with amendments and judicial interpretations adapting it to modern needs. The advent of digital technology and forensic advancements has necessitated further reforms, leading to the recognition of electronic evidence under Section 65B and expanding the scope of admissibility of scientific and forensic proof.

The New Evidence Law, the Bharatiya Sakshya Adhiniyam, 2023 provides a well-structured and comprehensive legal framework for handling evidence. It balances the need for both the protection of justice and the rights of individuals by establishing clear guidelines on what constitutes valid evidence. The Act ensures fairness in trials by establishing rules that prevent the introduction of unreliable or irrelevant evidence. This helps safeguard the integrity of the judicial process and ensures that judgments are based on reliable information. The Bharatiya Sakshya Adhiniyam plays a vital role in ensuring the efficiency and integrity of the judicial system by laying down clear protocols for the collection, presentation, and examination of evidence. This is essential in upholding the rule of law and ensuring justice in both civil and criminal cases.

In Ram Chander v. State of Haryana, (1981) 3 SCC 191 case, the Hon’ble Apex Court observed: “If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest.”

In conclusion, the evolution of evidence law in India is a testament to its legal adaptability and commitment to justice. From ancient customs to a codified, structured framework, the law of evidence has continuously evolved to meet the demands of a changing society. The judiciary’s dynamic interpretation of evidence law ensures that it remains relevant, fair, and effective in upholding the principles of justice in contemporary times.