A CRITICAL ANALYSIS ON 185TH LAW COMMISSION REPORT- REVIEW OF THE INDIAN EVIDENCE ACT, 1872

Abstract

The Indian Evidence Act, 1872, is like a rulebook for courts in India. It helps judges decide what evidence they can consider when making decisions. In this review, we dig into how this rulebook came to be and what it means for the legal system in India. We take a close look at the important parts of the rulebook. It covers things like what kind of evidence is allowed, how witnesses can be questioned, and when judges can use their own judgment. We also check out key court cases that have influenced how these rules are used. Our review doesn’t just focus on the past; we also see how well these rules work today. With changes in society and technology, we ask if the rulebook needs updating. This review aims to help anyone interested in law – be it students, lawyers, or policymakers – understand how the Evidence Act guides the way evidence is handled in Indian courts. It’s like a guide to the behind-the-scenes of how decisions are made in the legal world, and how these rules might need a refresh for the future.

Keywords

Indian Evidence Act, 1872, legal framework, evidence rules, relevance, jurisprudence, amendments, landmark decisions, interpretation, evidentiary standards, technological advancements, legal landscapes, contemporary challenges, review.

Introduction
In a democratic system, it’s crucial to have a system of checks and balances on every part of the government. This ensures that no one group has too much power. The rule of law in a country also sets up checks and balances between the three main parts of the government: the courts, the executive (people who enforce laws), and the legislative (people who make laws). To make sure laws are fair and just, the government formed the Law Commission. The Law Commission is like a group of legal experts brought together by the Indian government. Their job is to make sure that the laws being made or already in place are fair. They act as a kind of watchdog to check if these laws are being used the right way. Even though the Law Commission is not a law itself, its recommendations are very important. The reports they create are like feedback on how well the laws are working and if any changes are needed. The Law Commission’s suggestions are often taken seriously, and the Supreme Court, which is the highest court in India, considers them in many cases. According to Article 372 of the Indian Constitution, there needs to be some authority or group that looks into, changes, or even gets rid of laws to see if they still make sense today. The Law Commission works closely with the Ministry of Law and Justice to make sure laws are analysed properly and put into action in a way that brings justice and peace to the country.

Review of the provision of the Indian evidence act, 1872

Section 23-27 [1]of the Indian Evidence Act, 1872

Section 23 of the Indian Evidence Act, 1872, talks about admissions in civil cases. An admission is when someone agrees that something is true. This section says that sometimes, an admission doesn’t have to be spoken or written down, and it might not even be relevant if there was a specific condition or agreement between the people involved.

The 69th Report suggested changing the wording of Section 23. Instead of the current explanation, they proposed adding these words directly to the section: “when someone admits something with a condition that this admission shouldn’t be used as evidence” and “when it’s made during the process of settling a disagreement.”

In the 69th Report, there wasn’t a suggestion for changes in Section 24 of the Indian Evidence Act, 1872. However, in the 185th Report, it was recommended to add more words like ‘coercion, violence, or torture’ to this section. Section 24 is about confessions and says that if a confession is obtained by making someone a promise, threatening them, or forcing them, it should not be considered relevant.

The 69th Report suggested a new section, Section 26A, which proposed making confessions to senior police officers admissible, but with certain conditions. This report explored different ways this could be understood. In many other countries like the UK and the USA, confessions made to senior police officers are allowed in court under certain circumstances.Top of Form

The report also looked at Article 20(3), which talks about not forcing someone to say things that could get them in trouble, and studied judgments like DK Basu and Maneka Gandhi. In case someone confesses to a senior police officer, the 69th Report suggested safeguards like having the accused person’s lawyer there and following the rules under Section 164 of the Criminal Procedure Code.

The 185th Report also delved into the issue of custodial deaths and police brutality, discussing various cases. Even though the 69th Report had suggested allowing confessions to senior police officers, the 185th Report disagreed. It said that while the idea might make sense on paper, the reality is different. India is dealing with many cases of police brutality, and giving such power to the police could be dangerous. The report argued that it would go against Article 14 and Article 21, along with other Supreme Court judgments that have set rules and guidelines for police officers to follow.

Section 26 of the Indian Evidence Act says that if someone in police custody confesses, that confession can only be used as evidence if it’s made in front of a Magistrate. The 69th Report suggested specifying that it should be made under a particular section of the law. Now, the current report suggests being even more specific by saying it should be done following the rules in Chapter XII of the Criminal Procedure Code, 1973. This helps make sure the confession is obtained following the proper legal procedures.

The law has a part called Section 27, which talks about using information from someone accused of a crime in an investigation. If the info leads to new facts or directly connects to what the accused person said, it can be used as evidence. Now, there’s a report discussing whether a specific rule in Section 27 should also apply to other sections (Section 24 to Section 26) of the law. The report looks at legal cases and suggests that Section 27 should not only apply to Section 26 but also to Section 25. The report also checks examples from other countries’ laws and suggests changing the wording of Section 27 to make it clear that it overrides certain things in Sections 24, 25, and 26. It suggests removing some words and adding others for clarity. The report also recommends that info from Sections 25 and 26 should be allowed as evidence. It suggests changing some words between “from a person accused of any offence” and “in the custody of a police officer.

Section 32[2]

Section 32 of the law is about using statements made by someone who can’t testify in court. This includes statements about death, opinions on public matters, and those made during business activities. Now, there was a recommendation in the 69th Report to change parts of Section 32, specifically clauses 1, 2, 3, and 7. They suggested amending the opening of the section to include the essence of Section 33 as well. In clause 1, which deals with dying declarations, after looking at cases like Tehal Singh v State of Punjab and UP v Ramesh Prasad Misra, the report disagreed with the 69th Report. They recommended no changes to the existing laws.

Section 63[3]

This section deals with the use of secondary evidence, which encompasses certified copies, mechanically produced forms, copies derived from the original, oral accounts of document content, and counterparts of documents against the party that created them. However, there’s some confusion arising from the wording, particularly the inclusion of ‘means and include.’ Disagreements have also surfaced regarding specific sub-clauses. The 185th Report suggests several changes. In clause 3, it proposes substituting ‘made from or compared’ with ‘made from and compared.’ The report advocates for the removal of ‘means and’ from the section. Furthermore, it recommends replacing the word ‘read’ with ‘seen’ in clause 5.

Section 53A[4]

Additionally, to ensure the safety of women in the workplace, there was a proposal to add Section 53A to the Act. This section stipulates that a woman’s character, especially concerning consent or her past sexual relationships, would not be considered relevant.

Recommendations made by the report

Sections 24 to 29 of the Indian Evidence Act focus on confessions made by the accused. Section 24 states that confessions made under inducement, threat, or promise are irrelevant in criminal proceedings. The Law Commission suggested amending this section to include coercion, torture, and violence as grounds for rejecting confessions. In the 69th Law Commission report, it recommended introducing Section 26A to make confessions to senior police officers admissible, regardless of the nature of the offense. However, the 185th Law Commission report disagreed, stating that this provision would be unconstitutional, challenging Articles 14 and 21 and contradicting Supreme Court views in the Keher Singh case. It proposed amendments related to hostile witnesses, conspiracy, and accomplices’ evidence. Section 27 was proposed as an exception to Sections 24 to 26. Changes included adding ‘or’ to cover facts discovered from statements by those in custody or not. The words ‘distinctively’ and ‘so much of such information’ were suggested for removal. Statements could be considered evidence only if not made under threats, cruelty, violence, or torture, but facts discovered by inducement would be admissible.
Sections 123, 124, and 162 of the law deal with state affairs, official communication, and document production. The Law Commission agreed with the 69th and 88th reports, which were similar. They considered changes in the law declared by S.P. Gupta. The only recommended change is that instead of appealing from subordinate courts on state affairs under Section 123, there should be a reference to the high court by a subordinate court for such questions.Top of Form
Section 112 is about determining paternity when a child is born during a marriage. The only exception mentioned is when there’s no physical access between the couple. The 185th Law Commission suggested adding blood group and DNA tests as proof, but only in specific situations. They also proposed extending the presumption of paternity to children born in or soon after marriages, even if the marriage is void or voidable. This idea caused controversy, as the Supreme Court previously rejected a similar proposal to use DNA tests for proving paternity.

Sections 68 to 71 and 90 are about proving documents and attestors. The recommendation was to change these sections, applying them only to wills, just like what happened in the UK in 1938. The Law Commission also suggested revising Section 90 and introducing Section 90A. These new rules would apply to documents that are 20 years old or more, with different rules for other documents.

Conclusion

“Evidence” basically means something that makes things clear or proves something. In law, it’s all about what’s obvious and can be shown to be true. So, evidence is like the facts and information that help decide who’s right or wrong in a legal situation.

Now, the Indian Evidence Act is like a big rulebook that guides how this evidence is used in courts. It has lots of rules about what kind of information can be used, how it’s relevant, when it can be considered, and so on. It covers things like confessions, the importance of a person’s character, who has to prove what in criminal trials, what someone says before they die, opinions from experts, and how witnesses are questioned.

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[1] Section-23-27 of Indian evidence act

[2] Section 32 of Indian evidence act

[3] Section 63 of Indian evidence act

[4] Section 54a of Indian evidence act

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