THE FUTURE OF THE INDIAN EVIDENCE ACT: CHALLENGES AND OPPORTUNITIES

This article is written by Rabab Shawir of 7^th Semester of University of Khartoum, an intern under Legal Vidhiya

Abstract

This article provides a critical analysis of the Indian Evidence Act, 1872, exploring the challenges it faces in the context of modern legal and technological developments. The article begins by discussing historical periods and practices that shaped the Act. It highlights key amendments and foundational principles of the Act. Through an examination of current challenges and relevant case law, the article highlights the need for reform to align the Act with contemporary legal practices. It also discusses the introduction of the Bharatiya Sakshya Bill, 2023, which aims to modernize India’s evidence law by incorporating provisions for digital and electronic evidence, adapting to societal changes, and harmonizing with international standards. The article concludes with a call for legislative updates to ensure the Act remains effective and relevant in addressing the complexities of modern legal scenarios, thus enhancing the fairness and accessibility of the Indian justice system.

Keywords

Indian Evidence Act 1872, Evidence, Digital evidence, Scientific evidence, Forensic evidence, Admissibility of evidence, Legal reform, technological advancements, Bharatiya Sakshya Bill 2023.

Introduction

The Indian Evidence Act, 1872, is a cornerstone of the Indian legal system, establishing the rules and principles for the admissibility, relevance, and evaluation of evidence in both civil and criminal cases. It provides a comprehensive legal framework that guides the judiciary in determining what evidence can be considered in court, ensuring fairness and consistency in the legal process. By defining key concepts like burden of proof, presumptions, and the treatment of witnesses, the Act plays a crucial role in upholding justice, helping to ensure that verdicts are based on reliable and legally sound evidence.

Despite its vital significance to the Indian legal system and its influence on many other jurisdictions that derive from its comprehensive provisions, the Indian Evidence Act has faced and continues to face various challenges. These challenges stem from rapid technological advancements, the increasing reliance on scientific and forensic evidence, and the complex nature of the Act’s provisions.

These challenges provide numerous opportunities for reform and for updating and modernizing the Indian Evidence Act. By updating the Act, the legal system can better accommodate digital evidence, align with international standards, and streamline judicial processes, ultimately ensuring a more efficient and just legal environment. In this context, The Bharatiya Sakshya Bill, 2023 has emerged, aiming to modernize India’s evidence law by incorporating provisions for digital and electronic evidence, adapting to social changes, and aligning with international standards for handling cross-border disputes. The bill is designed to ensure that the evidence law remains relevant, effective, and capable of addressing contemporary legal challenges.

This article offers an in-depth analysis of the current challenges facing the Indian Evidence Act and presents direct solutions to address each issue. It delves into specific areas in need of reform, with the goal of modernizing the Act to align with contemporary legal practices. Additionally, the article explores the Bharatiya Sakshya Bill, 2023, highlighting its significance as a progressive step toward reshaping and updating Indian evidence law to meet the demands of today’s legal landscape.

Historical Background

The Indian Evidence Act, enacted in 1872, represents a significant milestone in the legal history of India. Its development was a prolonged process that unfolded over several centuries. It was influenced by various historical, social, and legal factors over time.

Before British rule, the Indian subcontinent had diverse legal systems based on local customs and religious laws, with evidence governed by customary practices and religious texts, resulting in varying degrees of formality and consistency. The Hindu and Muslim legal systems each had their own rules regarding evidence, often rooted in religious texts like the Manusmriti for Hindus and the Quran and Hadiths for Muslims. In the 17th and 18th centuries, the British East India Company began asserting control over Indian territories, introducing British legal principles and institutions. The British legal system, with its emphasis on common law and formal evidence procedures, started influencing Indian legal practices. This led to the realization of the need for a codified system of evidence to harmonize the diverse practices and ensure consistency in legal proceedings[1].

The Act was drafted during a significant period of legal reform under British rule, with Sir James Fitzjames Stephen, a British jurist and legal reformer, playing a crucial role in its development. His expertise in English law and familiarity with Indian legal practices influenced the drafting of the Act, which was based on the principles of English common law but adapted to the Indian context[2]. The Act aimed to provide a comprehensive and uniform system of evidence to replace the varied practices across different regions. Enacted by the British Parliament, the Indian Evidence Act, 1872, came into force on September 1, 1872, marking one of the first major legislative efforts to codify and reform Indian laws[3].

Amendments

The Indian Evidence Act, 1872, has seen several key amendments to adapt to evolving legal and societal needs. Notable changes include the introduction of Sections 65A and 65B by the Information Technology Act, 2000, allowing the admissibility of electronic evidence[4]. The Criminal Law (Amendment) Act, 2005, and subsequent amendments, like those in 2013, enhanced protections for victims of sexual offenses, restricting the admissibility of character evidence against them[5]. Additionally, the Evidence (Amendment) Act, 2002, further refined the handling of evidence in civil cases. Indirectly, the Witness Protection Scheme, 2018, has bolstered the reliability of witness testimonies, while the proposed DNA Technology (Use and Application) Regulation Bill, 2019, aims to regulate DNA evidence[6]. These amendments collectively ensure the Act remains relevant and effective in the modern legal landscape.

Foundational Principles

The Indian Evidence Act, 1872, is built on foundational principles that ensure a fair and rational judicial process. The principle of relevance dictates that only evidence directly or indirectly related to the facts in issue is admissible, while the principle of admissibility ensures that evidence must comply with legal rules to be considered by the court. The best evidence rule requires that the most reliable form of evidence, such as original documents over copies, be presented. The burden of proof lies on the party making an assertion, with the responsibility to prove the truth of their claim. The Act also establishes legal presumptions that assume certain facts to be true unless proven otherwise. It distinguishes between oral and documentary evidence, providing guidelines on how each should be presented and evaluated. The credibility and competence of witness testimony are crucial, with specific rules governing who can testify and how their statements should be weighed. Finally, judicial discretion allows judges to determine the admissibility of evidence based on the unique circumstances of each case, ensuring flexibility and fairness in legal proceedings[7].

Current Challenges

The Indian Evidence Act, 1872, while foundational to the Indian legal system, faces several challenges that stem from technological advancements, reliance on scientific and forensic evidence, and the complex nature of its provisions. Here’s a detailed analysis of these challenges:

Technological Advancements and Digital Evidence

One of the most pressing challenges for the Indian Evidence Act is the integration and handling of digital evidence. The Act, originally designed for a pre-digital era, struggles to address the complexities associated with electronic records, cybercrimes, and digital forensics. Although Sections 65A and 65B, introduced by the Information Technology Act, 2000, provide a framework for admitting electronic evidence, they are often criticized for being insufficient and outdated given the rapid technological advancements. Issues such as data authenticity, chain of custody, and the admissibility of evidence obtained from social media, cloud storage, and encrypted communications present ongoing difficulties for legal practitioners and the judiciary[8]. In the landmark case of Anvar P.V. v. P.K. Basheer (2014), the Supreme Court ruled that for any electronic record to be admissible in court, it must be accompanied by a certificate as per Section 65B(4) of the Act, certifying the authenticity of the record and the process used to produce it. The court clarified that in the absence of such a certificate, electronic evidence cannot be admitted, no matter how relevant it might be. This case exposed the inadequacies of the Act in dealing with the complexities of digital evidence, particularly in an era where electronic records are prevalent in both civil and criminal cases[9].

Scientific and Forensic Evidence

The increasing reliance on scientific and forensic evidence in criminal and civil cases also poses challenges to the Indian Evidence Act. The Act’s current provisions on the admissibility and evaluation of expert testimony and scientific evidence are considered inadequate to deal with the complexities of modern forensic science. The absence of clear guidelines for the admissibility of DNA evidence, polygraph tests, and other scientific methods leads to inconsistencies in court rulings. The admissibility of DNA testing in courts has long been debated, especially concerning its impact on privacy rights. While DNA testing has been widely accepted for serious criminal cases like rape and murder due to its accuracy, its use in civil matters, such as paternity disputes, remains contentious. The lack of a uniform standard for DNA testing in various legal contexts highlights ongoing concerns about privacy[10]. In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women[11], the Supreme Court emphasized that DNA testing could infringe on individual privacy and should not be routinely employed unless supported by strong prima facie evidence. This underscores the need for a balanced approach to the admissibility of DNA evidence, weighing its probative value against privacy considerations.

Challenges Regarding Judicial Interpretations

Another challenge is the variability in judicial interpretations of the Act. Over time, courts have interpreted various sections of the Act differently, leading to inconsistencies in legal outcomes. Such inconsistencies can lead to unpredictability in legal proceedings and undermine public confidence in the justice system. There is a growing call for more uniform guidelines and training for judges to ensure that interpretations align more closely with the intended spirit of the law and contemporary legal standards.

For instance, the rules around dying declarations and the admissibility of confessions require nuanced understanding and careful interpretation. Sections 24 to 30 that address the admissibility of confessions, particularly confessions made to police officers or under coercion, are frequently debated. The interpretation of these sections can significantly impact the outcome of criminal cases. In State of U.P. vs Deoman Upadhyaya (1960)[12] The Supreme Court held that a confession made by an accused in police custody, but not to a police officer, can be admissible under Section 27 if it leads to the discovery of a fact. This case underscores the complexities and nuances in interpreting confessional statements.

Furthermore, the reliability and admissibility of dying declarations under section 32 of the Act have also been deemed contentious, especially when the declarant’s mental state or the circumstances under which the declaration was made are in question. In Kusa vs State of Orissa (1980)[13], The Supreme Court dealt with multiple dying declarations made by the victim, where inconsistencies were observed. The Court ruled that if the dying declaration is consistent and coherent, it can be the sole basis for conviction, but conflicting declarations may require corroboration.

Opportunities for Reform

Reforming the Indian Evidence Act presents a unique opportunity to modernize the legal framework and address the evolving challenges posed by technological advancements, globalization, and complex legal disputes. By updating the Act, the legal system can better accommodate digital evidence, align with international standards, and streamline judicial processes, ultimately ensuring a more efficient and just legal environment. Here are particular areas where such reform can be made:

Technological Integration

The integration of technology into the Indian Evidence Act is essential for enhancing the accuracy, efficiency, and integrity of evidence management. It helps accommodate modern forms of evidence, improves accessibility and transparency, aligns with global standards, reduces costs, and future-proofs the legal system. By embracing these technological advancements, the Act can be made more relevant and effective in the contemporary legal landscape. In the case of Som Prakash vs. State of Delhi[14], the Supreme Court made an important observation about the role of technology and scientific methods in the legal system. The Court highlighted that sticking only to traditional oral evidence is outdated and ineffective in the modern, technologically advanced world. They emphasized that relying solely on oral testimony, while ignoring technological advancements and scientific aids, hampers the efficiency of forensic investigations[15].

Appropriately leveraging technological advancements underscores the importance of investing in training for law enforcement and legal professionals. By enhancing their skills in handling modern forms of evidence, we can significantly improve the quality and integrity of evidence management. This investment ensures that professionals are well-equipped to use and understand new technologies, leading to more accurate and reliable evidence in legal proceedings[16].

Enhancing Globalization and Cross-border Evidence

With the rise in cross-border transactions and international disputes, it has become essential to establish a legal framework that supports the collection and admissibility of evidence from foreign jurisdictions. India should align its laws with international agreements such as the Hague Evidence Convention and mutual legal assistance treaties (MLATs). This would require incorporating specific provisions into the Indian Evidence Act to recognize and facilitate the admissibility of evidence obtained from foreign sources. The Act should include streamlined procedures for obtaining and admitting cross-border evidence, reducing bureaucratic obstacles and ensuring that foreign evidence is evaluated with the same standards of relevance and admissibility as domestic evidence[17].

Modernizing Evidence Law

Evidence is a crucial and expansive area within the Indian legal system, serving as the foundation for justice and fairness in legal proceedings. Given its importance, it is vital that the laws governing evidence are regularly updated to incorporate the latest social and technological advancements. This ongoing evolution of the legal framework ensures that the justice system remains relevant and capable of addressing new challenges, such as the rise of digital evidence and cross-border legal issues[18]. By staying current, the Indian legal system can better uphold the principles of justice, improve the accuracy of legal outcomes, and maintain public trust in the rule of law. In this context, the introduction of the Bharatiya Sakshya Bill, 2023, marks an important step towards modernizing the legal framework.

The Bharatiya Sakshya Bill, 2023

The Bharatiya Sakshya Bill, 2023 was introduced with the objective of modernizing India’s evidence law, recognizing the need to adapt to the changing landscape of society and technology. As evidence law is a cornerstone of the legal system, it is essential that it evolves in step with contemporary developments to ensure that justice is served efficiently and fairly.

The bill aims to update and refine the Indian Evidence Act, 1872, which has been the primary legislation governing evidence in India for over a century. While the original Act has served its purpose well, the rapid advancements in technology, the rise of digital and electronic evidence, and the increasing complexity of legal disputes—often crossing national borders—have highlighted the need for a more modern approach.

Key objectives include recognizing the admissibility of digital and electronic evidence, reflecting current societal norms, harmonizing with global practices, and streamlining legal procedures to enhance judicial efficiency. The bill seeks to simplify the handling of digital evidence and improve the management of complex, cross-border cases, thereby making the legal process more efficient and effective[19].

Conclusion

The Indian Evidence Act of 1872, crafted through extensive deliberation and adaptation, has long stood as a cornerstone of the Indian legal system. Its comprehensive framework has provided invaluable guidance to legal practitioners and law enforcement alike, enhancing its significance over the decades. However, this very framework now faces various challenges that have significantly impacted its effectiveness and the delivery of justice. Evidence is a very wide and integral area in the Indian Legal system. It is very important that the laws with respect to evidence are updated from time to time to incorporate the changing social and technological advancements.

The need for legislative reform of the Indian Evidence Act is driven by the evolving nature of technology, globalization, judicial interpretations, and legal practices. Updating the Act will ensure it remains relevant, effective, and capable of addressing the complexities of modern legal scenarios, while also enhancing the fairness and accessibility of the justice system in India.

References

1. The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).
2. Anvar P.V v. P.K. Basheer & Ors, (2014) 10 SCC 473.
3. Bhabani Prasad Jena etc v. Convenor Secretary Orissa, CIVIL APPEAL NOS. 6222-6223 OF 2010.
4. Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125.
5. Kusa v. State of Orissa, AIR 1980 SC 559.
6. Som Prakash vs. State of Delhi, AIR 1974 SC 989.
7. Vivek Dubey, Admissibility of electronic evidence: an Indian perspective, FRCIJ, 58-63 (2017).
8. LAW NOTES, https://lawnotes.co/indian-evidence-act-origin-objective-and-scope/ (last visited July 28, 2024).
9. Kaif Hasan, Historical Background Of Evidence Law In India: With Special Reference To The Indian Evidence Act, 1872, LEGAL SERVICE INDIA ( July 28, 2024, 05:32 PM) https://legalserviceindia.com/legal/article-7229-historical-background-of-evidence-law-in-india-with-special-reference-to-the-indian-evidence-act-1872.html
10. Astitva Kumar, Indian Evidence Act, 1872: an exhaustive overview, IPLEADERS ( July 28, 2024, 06:10 PM) https://blog.ipleaders.in/indian-evidence-act-1872-an-exhaustive-overview/
11. ADVOCATE KHOJ, https://www.advocatekhoj.com/library/bareacts/informationtechnology/schedule2.php?Title=InformationTechnologyAct&STitle=Amendments%20to%20the%20Indian%20Evidence%20Act,%201872 (last visited July 29, 2024).
12. INDIANEVIDENCEAT1872, https://indianevidenceact1872.com/fundamental-rules-of-law-of-evidence/ (last visited July 29, 2024).
13. Aryan Patwari, Admissibility of DNA test and section 112 of the Evidence Act, LAWBHOOMI (July 31, 2024, 08:19 PM), https://lawbhoomi.com/admissibility-of-dna-test-and-section-112-of-the-evidence-act/
14. Pruthvi Ramkanta Hegde, All about digital evidence, IPLEADERS (August 2, 2024, 03:48 AM), https://blog.ipleaders.in/all-about-digital-evidence/
15. LEXMUNDI, https://www.lexmundi.com/guides/gathering-evidence-in-aid-of-foreign-litigation-guide/jurisdictions/asia-pacific/india/ (last visited August 2, 2024).
16. PRS LEGESLATIVE REPORTS, https://prsindia.org/billtrack/the-bharatiya-sakshya-bill-2023 (last visit August 2, 2024).

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[1] LAW NOTES, https://lawnotes.co/indian-evidence-act-origin-objective-and-scope/ (last visited July 28, 2024).

[2] Kaif Hasan, Historical Background Of Evidence Law In India: With Special Reference To The Indian Evidence Act, 1872, LEGAL SERVICE INDIA ( July 28, 2024, 05:32 PM) https://legalserviceindia.com/legal/article-7229-historical-background-of-evidence-law-in-india-with-special-reference-to-the-indian-evidence-act-1872.html

[3] Astitva Kumar, Indian Evidence Act, 1872: an exhaustive overview, IPLEADERS ( July 28, 2024, 06:10 PM) https://blog.ipleaders.in/indian-evidence-act-1872-an-exhaustive-overview/

[4] ADVOCATE KHOJ, https://www.advocatekhoj.com/library/bareacts/informationtechnology/schedule2.php?Title=InformationTechnologyAct&STitle=Amendments%20to%20the%20Indian%20Evidence%20Act,%201872 (last visited July 29, 2024).

[5] BYJUS, https://byjusexamprep.com/upsc-exam/indian-evidence-act-and-right-to-free-trial (last visited July 29, 2024).

[6] Supra note 3.

[7] INDIANEVIDENCEAT1872, https://indianevidenceact1872.com/fundamental-rules-of-law-of-evidence/ (last visited July 29, 2024).

[8] Vivek Dubey, Admissibility of electronic evidence: an Indian perspective, FRCIJ, 58-63 (2017).

[9] Anvar P.V v. P.K. Basheer & Ors, (2014) 10 SCC 473.

[10] Aryan Patwari, Admissibility of DNA test and section 112 of the Evidence Act, LAWBHOOMI (July 31, 2024, 08:19 PM), https://lawbhoomi.com/admissibility-of-dna-test-and-section-112-of-the-evidence-act/

[11] Bhabani Prasad Jena etc v. Convenor Secretary Orissa, CIVIL APPEAL NOS. 6222-6223 OF 2010

[12] Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125.

[13] Kusa v. State of Orissa, AIR 1980 SC 559.

[14] Som Prakash vs. State of Delhi, AIR 1974 SC 989.

[15] Supra note 7 at 61.

[16] Pruthvi Ramkanta Hegde, All about digital evidence, IPLEADERS (August 2, 2024, 03:48 AM), https://blog.ipleaders.in/all-about-digital-evidence/

[17] LEXMUNDI, https://www.lexmundi.com/guides/gathering-evidence-in-aid-of-foreign-litigation-guide/jurisdictions/asia-pacific/india/ (last visited August 2, 2024).

[18] Supra note 7 at 63.

[19] PRS LEGESLATIVE REPORTS, https://prsindia.org/billtrack/the-bharatiya-sakshya-bill-2023 (last visit August 2, 2024).

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