As an undergraduate student, my professor stressed on the beauty of the Indian Evidence Act 1872 [IEA] before leading us down a traumatic three months. I did not know it then, but he was echoing a very commonly held sentiment of reverence for the statute (for instance, the Indian Law Commission in its 69th Report thought the IEA was entitled to a 'place of pride' in the statute book). During my brief experience in the trial courts, I saw the IEA in operation and have also had opportunities to talk about some issues under its specific provisions on this Blog. But the more I think about, I can't help but arrive at the conclusion that the IEA is a horribly antiquated piece of legislation that has served us well beyond its time. It must go. I am hardly the first or the last person to come to this conclusion - but what surprised me is most of my predecessors have not been from India. Instead, I was exposed to rich argumentation from Singapore and Tanzania, countries where the IEA was transplanted by colonialism. Here, I first take up structural issues and then address functionality concerns, both of which strike at the heart of the statute's existence. My comment heavily borrows from these debates and while the articles are not all freely available, I have indicated sources at the end for reference.*
No Jury, No Problem?
The 69th Report of the Law Commission (referred to above) was a momentous effort. The Report is massive and provides introductory material on the law of evidence, then considers all lengthy 167 provisions in minute detail, and records notes of dissent. But the context of its birth is as impressive as its comprehensiveness. Democracy had just been revived in India after being thrown into a comatose during a two year long Emergency. The Janata Government had won elections, and riding a wave of popularity undertook a project to review various laws. The 69th Report was part of this project and we get a sense of the urgency from the Introduction which the Chairman ends by saying: "At present the Commission is engaged on the study of Transfer of Property Act; and this task again is arduous and exacting. But let me assure you that the Commission has undertaken this task with the full confidence that it will be able to forward to the Union Government its report on the subject before its tenure expires on the 31st of August this year [the introduction is dated May 9, 1977].**
In this massive, 915 pdf page document, I was dumbstruck to find not a single discussion about the abolition of the jury system in India and its effects on the IEA. The only mention of jurors and assessors is on printed page 869 which recommends deletion of Section 166 IEA, which referred to the role of jurors and assessors where they were part of a trial. All the Commission said was "the system of trial by jury has been abolished ... this section should therefore be deleted." Is this the limit to which a jury system affected the IEA? Absolutely not.
In a jury system, judges are not triers of fact but decide issues of the law being applied to the dispute. Laypersons decided the factual matrix and whether innocence or guilt flow from this consideration. Admittedly, the IEA was not only written with that idea in mind and was designed to be as effective for judges trying the facts as for cases where juries were triers. But, logically, Stephen was required to cater to the lowest minima rather than design rules for judges in designing the legislation. While Stephen thought judges in India were not top notch, like most Englishmen he thought worse of juries, which explains the strictness of his rules if we think of them as being designed for jurors of poor ability. Moreover, certain rules were clearly designed to limit their prejudicial effect on the minds of jurors that have no basis in a case being tried solely by judges. This includes the 'similar fact' rule, the desirability of which has been questioned in several articles written in the Singaporean context.
Trials had the judges screen the material before it came before a jury to ensure it complied with the rules in the IEA. This system makes objections central: since you can't 'unring the bell', you have to ensure the dubious material never reaches the jury in the first place. Replacing the jury with the judge does not reduce the force of that argument at all for, after all, judges are only human. In retaining the same structure of evidence rules we continue in foolishly hoping for judges to 'unring the bell' by deciding on relevance objections themselves after having seen the material. In fact, this has only been worsened after the Indian Supreme Court held in Bipin Shantilal Panchal v State of Gujarat [(2002) 10 SCC 529] that objections have to be recorded and then decided at the end of trial during final arguments. Effectively, we now let judges see the evidence, touch it, keep it with them while the case develops, and hope that in the end they can exclude that evidence from their consideration of the case.
Conflating Relevance and Admissibility - Stephen's Splendid Mistake
That is how Pollock described the idea most central to the IEA. He was joined by Thayer who noted that inverting the English position and fitting in all of evidence law within narrow rules of relevance is what deprived Stephen's work of 'permanent value'. Let me give some context. Traditionally, the basic rule of evidence is that everything relevant is admissible. The Federal Rules of Evidence in the United States explain relevant evidence through Rule 401 as anything making a fact more or less probative, which fact is material to the case at hand. This loose formulation leaves it for the trier to decide whether things are relevant. This enquiry is governed by a framework which excludes relevant evidence for policy concerns, for instance, excluding confessions elicited through use of prohibited force.
In the IEA, Stephen reversed this logic. He prescribed strict rules for determining what is, and is not, relevant. He had his reasons as I briefly mentioned above - judges and lawyers being poorly trained in India, juries needing more careful handing. But beyond this reversal, Stephen did not change much of the English law of evidence - what were, traditionally, inquiries of admissibility, had been converted to be understood as questions of relevance and bundled together through Sections 5-57. Out of these, I would term some as hard rules and others being soft. For example, the exclusion of confessions to police officers by accused persons under Section 25 was a hard rule because it did not allow for the evidence to be considered at all. Whereas provisions such as Section 7 (explaining how certain facts are relevant if they establish cause and / or effect) are soft rules because they allow for facts to be looked at, and then applied.
Keeping aside the slurs on judges in Indian courts, one can imagine a trial working with a jury in largely the traditional manner, albeit with tighter restraints on what is fed to the jury. The judge still exercises oversight, and lawyers raise objections to prevent bad material from being considered. But take the jury away, and it simply does not work anymore. What we have then, is judges ignoring all the soft rules on relevance with all hard rules being conflated with admissibility. The ignorance of soft rules is compounded by the extremely convoluted and overlapping nature of those provisions, which in effect are treated as statutory verbiage for the traditional rule that whatever the judge thinks is relevant, is admissible. I am not making heretical claims here - a bare perusal of appellate decisions confirms how judges have a free reign on bringing in evidence as long as it is not barred. Relevance, as Stephen originally created in the IEA, has thus ceased to function.
The Law Commission reviewed the IEA again in the 185th Report (access it from the link) which was even longer than the 69th Report. Yet, there was no consideration of these issues and all the Commission did was express its agreement that Section 166 ought to have been deleted (which it was). The IEA is a bad statute. Its core is rotten, its context altered, and several provisions - the ones on judicial notice and presumptions especially - either just don't make sense or can be significantly reduced in size. And this post does not utter a word about how the Supreme Court has tortured some of the text over time.
Why, then, must we continue to carry the burdens of this clunky, nearly 150 year old document? The easy answer is the cynical one - lawyers don't want things to change because they will go out of business soon enough if the law became simpler. But that can hardly suffice. The other answer can be found in the same 69th Report where the Law Commission gave the IEA 'place of pride'. It went on and noted that "respect for its excellence should not amount to blind adoration bordering on deference." The deference, as I have tried to show, is entirely unwarranted.
The Singapore Evidence Act first came in as the Straits Evidence Ordinance in 1893 and, barring a few modifications, is a nearly complete copy of the Indian Evidence Act 1872. I have relied upon the following pieces from the Singapore context: (i) Robert Margolis, Evidence of Similar Facts, the Evidence Act, And the Judge as Trier-of-Fact, 9 Sing. L. Rev. 103 (1988); (ii) Robert Margolis, The Concept of Relevance: In the Evidence Act and the Modern View, 11 Sing. L. Rev. 24 (1990).
Tanzania has the Tanzania Evidence Act 1967 which, again, is a nearly complete copy of the Indian Evidence Act 1872. In 2011, the Tanzanian Government initiated a project to reform the law and the team included Professor Ronald Allen. Their efforts were published in a three part series run in the Boston University International Law Journal which I would strongly urge everyone to read: Part One, Part Two, and Part Three is the Draft Law prepared.
The Janata Party failed to get any of the criminal law reform bills passed through parliament.