Daily Practice Quiz #3 (History of Indian Evidence Law)


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The law of evidence in India traces back its root to Vedic period. It was recognized by Dharma Shastra in order to ascertain the truth. It was also an important and integral part of Muslim rule of law in order to ascertain the truth of facts pertaining to judicial proceedings. Subsequently, in the modern times, it all superseded by the modern English evidence law what we no call as Indian Evidence Act, 1872. But it was a long-drawn process over a span of several centuries.

Ancient Period

Everything in ancient India, including kings, was subservient to Dharma (complete rules of right conduct). Sources of law of ancient India are namely; Vedas, Smriti, and Achara (customary law). The earliest lawgiver of early Hindu law is Manu. The subcontinent was divided in a number of independent territories and every territory has a leader whose main objective was to protect Dharma and rule according to it. Dharma also means observance & conduct of truth.

So, truth was given an integral importance in ancient India which led to the same in laws of that period. The whole administration was divided in different units ranging from villages to towns and provinces. There is no evidence of a single judge & lawyer but there was a jury system prevalent. Even the king would have to consult Brahmins on any matter relating to justice. The authority to rely on were Dharma Sutras.

All the matters pertaining to civil & criminal matters were heard. A person wanted to make representation in a court on any matter would submit a complaint and after due consideration whether to admit such a complaint, the defendant was called. Each one had to submit a written complaint and reply and after due deliberations, the burden of proof lied upon whom the jury considered to, and he had to submit his evidence in order to substantiate his claim. There are two kinds of proofs in Hindu law; 1. Divine, 2. Human. The former consisted of ordeals and latter consisted witnesses, documents and inferences from the circumstances.

Some main features of Hindu or Ancient evidence law:

  1. Oral evidence was to be direct and first-hand not what one has heard.
  2. Circumstantial evidence was an important feature both in criminal and civil cases but stress was laid upon careful inquiry and investigation of circumstances in order to minimize mistakes.
  3. Torture was permitted but not considered solely an element of evidence.
  4. There were various circumstances for putting burden of proof. e.g., if defendant admitted the commission, then there was no need of burden of proof
  5. Witnesses were also divided on the basis of kinds of persons who were included in the commission and who were not.
  6. Documents were divided into: - Public & Private. Etc.

Medieval Period

By the end of the Mameluke dynasty, the first Muslim dynasty in India, Muslim rule was well established in India. The administration of justice was also largely administered by the Muslim rulers. 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 laid out a great stress on despotism. Barani was the main man of affairs in Delhi Sultanate who is an authority in matters pertaining to Muslim administration. He gave an idea of justice; 'adl', based on equal treatment and supreme authority of justice above all even for non-Muslim subjects.

However, non-Muslims were not subjected to Muslim-law on civil matters but criminal law was applied equally over them also. 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.

Then came Abul Fazl in the picture who played an important role in Mughal administration and its setup. The King was again the supreme authority, as indicated by the concept of farr-i-izadi of Abul Fazl, but then came Qazi (judge). There was a body of Ulemas (Muslim jurists). There were several offices of; Qazi, Mufti, Mir Adl, Muhtasid etc. were instituted for the sole purpose of delivering justice as Abul Fazl gave very much importance to justice and considered King as its supreme provider.

The Judicial setting and the features of the evidence of Mughal period are as follows:

Representatives, modern day wakils, were allowed to represent and argue on behalf of clients and they were paid by the state and could be promoted as Kazis.

There was bifurcation in civil and criminal proceedings. In civil cases, the plaintiff had to file a claim and if defendant denies then plaintiff had to adduce evidence in substantiating his claim and defendant had to adduce evidence in rebuttal of those claims. Then the kazi had to decide the matter based on the proceedings in such a manner. In criminal matters, the Kazi would summon any of the accused-defendant and hear the complainant and witnesses. Then the judgment was pronounced in open court.There was also an element of extra-judicial inquiry as rightly inherent in the evidence of Mahmud of Ghazni that he made such an attempt upon a complaint of a subject.

According to Hanafi law, which was prevalent in Muslim India, evidence is; (a) Tawatur or fully corroborating (b) Ehad or testimony of one., (c) Iqrar which means acceptance or confession.
Trial by ordeal was not known in Islamic law.

Oral evidence was to be direct.

Hearsay evidence was also preferred but under strict scrutiny and conditions. e.g.- 4 witnesses required in order to prove adultery in Muslim law.

Evidence produced in a court was to be in support of one's cause, so relevancy can be inferred.

There was not any hard-fast rule regarding putting the onus of Burden of Proof and the Kazi had the complete authority to put it.

Win wood Reade puts:

Whatever laws he made respecting women and slaves were made with the view of improving their condition. Instead of repining that Mohammad (PBUH) did no more, we have reason to be astonished that he did so much. His career is the best example that can be given of the influence of the individual in human history.

British Period (East India Co. & Crown Rule)

The East India Co. came in India in the year 1601 after which it got trading rights in Surat by the Emperor Jahangir then in Bengal by Emperor Shah Jahan. They had trading rights and a little number of administrative powers which subsequently, after the decisive Battle of Buxar in 1764, significantly grew in all realms of political administration of its provinces.

The Muslim penal law was prevalent in Bihar, Bengal and Orissa and after Britishers came they didn't alter it over 100 yrs and never they touched upon Personal Law ever much. But gradually after gaining much power and sovereignty they took upon themselves the task of judicial administration of India and superseding the existing Muslim law, importing the modern English laws through a cohort of enactments.

Let's look up briefly about the developments and culmination of what we today know as Indian Evidence Act, 1872:

Many of the principles of Muslim law were discarded by Western thoughts long ago. Warren Hasting was one of the main critics of Muslim law who termed it as 'barbarous construction
In 1723, Royal courts were established in the three presidency towns but Indian subjects were not subjected to their jurisdiction.

The act of Regulation, 1773 made a substantial change in the judicial system of India by establishing courts outside Bengal and establishing Supreme Court of Judicature in Calcutta.
After that there was a dual system of justice in presidencies and mofussil through the acts of 1781, 1801 and 1823

Now it was felt necessary to assimilate the procedural laws first than the substantive laws of this dual system.

First Law Commission Report, under Sir Macaulay, came in 1833 with several enactments. In 1835, first enactment regarding law of evidence was part as Act 10 of 1835 of Governor-General-in-council which was applied in all courts; provincial and mofussil.

Act 19 of 1837, Act 5 of 1840, Act 7 of 1844, Act 15 of 1852, Act 19 of 1853, Act 10 of 1855, Act 8 of 1859, Act 25 of 1861, Act 15 of 1869 were among some of the important Acts pertaining to evidence in British India prior to the enactments of Indian Evidence Act, 1872.
The English judges in India were following English law on matters that were not mentioned in the Acts in place of Islamic Law.

Zamindar of Karvetinugar v. Venkatadri, Narappa v. Gupayya, Kazi Gulam Ali v. H.H. Aga Khan were some of the leading cases pertaining to the development of Evidence Law in India prior to the enactment of Indian Evidence Act, 1872.

The Third Law Commission of India assigned Sir Henry Maine with task to draft the Indian Evidence Act and it was rejected after being introduced by Sir Henry owing to the fact that it was not suitable for India.

Indian Evidence Act, 1872

Now the task of drafting a suitable code for Evidence Law came upon the shoulders of Sir James Fitz James Stephens, which he completed and culminated into what we know today as Indian Evidence Act, 1872. In 1868, a commission was setup to frame a draft code and 39 sections were included in the code.

The code was termed as irrelevant to India and was dropped out. In the year of 1870, a new bill containing 163 sections in a form different for the present Evidence Act of 1872 was prepared by James Stephen which he recasted and ultimately Indian Evidence Act, 1872 was passed. After the partition, the act applied to both the nation, India and Pakistan except the territory of Jammu & Kashmir.

It has 11 Chapters and 167 sections and came into force on 1st September 1872and applies to all over India except the state of Jammu & Kashmir.

Evidence, under the said act has been classified into different categories such as:

  1. Oral Evidence
  2. Documentary Evidence
  3. Primary Evidence
  4. Secondary Evidence
  5. Real Evidence
  6. Hearsay Evidence
  7. Direct Evidence
  8. Circumstantial Evidence
  9. Judicial and Non-Judicial Evidence
  10. Prima Facie Evidence.