The third and final instalment of this series continues the discussion on India's criminal codes and turns our attention to the Indian Evidence Act 1872 [IEA], replaced in 2023 by the Bharatiya Sakshya Adhiniyam [BSA]. The IEA (and BSA) is not strictly a 'criminal' code, though, as the rules of evidence it lays down apply to civil trials too. That does not affect the points made in this post, I think.
Same pattern. Four themes, on aspects go beyond the substantive content — is the definition of hearsay good or not, etc. — but touch upon the impact the code has on the legal system.
Theme 1 — Evidence, for what kind of Trial?
At the time when the IEA was passed for British India, the legal system was a peculiar creature. Different defendants would be entitled to different trials, on the basis of race, and the trials themselves were a mix of jury trials and bench trials. Why does that matter? A law on the subject of evidence is, obviously and undeniably, linked to how that legal system is processing cases. A set of rules governing reception of evidence in jury trials is not ideally suited to a trial conducted by a judge alone. In the former a jury decides questions of fact, requiring some care to ensure a jury is not influenced by bad quality evidence. In the latter, considering it is a judge helming the case, this is not seen to be a problem.
Part of the genius behind the IEA was that it successfully presented a system of evidence which did not trouble courts regardless of the trial — and also, civil trials. But as India has abandoned jury trials outright, there is no need to continue with a system designed to set out a kind of lowest common denominator for our courts. This point is developed more thoroughly in the next two, interlinked themes.
Added here is the problem of staggered trials. The trial envisioned by the IEA (and now BSA) is one continuing over day-to-day, focused on oral evidence delivered before a judge who is taking careful notes over the demeanour of witnesses, which remains fresh in the jury / judge's mind by the time judgment day comes. They also imagine a witness to remember things, assuming not a lot of time has passed between the incident and trial. Present day trials are anything but — they take years to commence, and once they do they are stop-start affairs, relying very little on the orality of proceedings but instead on the written copy of what the witness has deposed. Older rules on examining witnesses focused on orality end up creating more problems rather than solutions.
Theme 2 — Admissibility and 'Un-ringing' the Bell
The jury trial / judge trial distinction becomes relevant especially when we think of how the IEA / BSA deal with the issue of objections to the 'admissibility' of evidence. An easy example will do: the IEA and BSA both render evidence of confessions made to police officers inadmissible (with a limited exception, which we needn't bother with for now).
In a jury trial, if such a confession was being led, counsel could pre-emptively object and ensure the jury isn't using this material in its decision. But what about a trial held by the judge? This material would go before a judge, who will look at it, and if an objection is raised the judge will have to decide it. Even if the judge holds that the material was inadmissible, can we really, truly, say that the confession did not have any impact on their decision? Can we, in other words, really expect that the text of the law can 'un-ring' the bell which has rung when the material is first seen by the judge?
If we stick to a theory of judges being supreme beings always bound to go by the law, then sure, their ultimate decision can never be affected by them being shown inadmissible evidence at the trial. But, lets be honest, we all know that is not true: seen in how appellate courts across India routinely overturn decisions on grounds of improper consideration of evidence by trial courts. To think that this is a problem with judges is, I would argue, a shortsighted view. The scheme of the IEA / BSA contributes to this failing, by creating rules and then applying them unreasonably by asking the courts to artificially splice their mind over the life of a case.
Theme 3 — Reconsidering the '6-55' Relevance Scheme
Flowing from this is a critique of the '6-55' scheme — this refers to a detailed set of provisions in the IEA from Section 6 till 55, explaining to us the concept of 'relevance'. Bear with me as I spell it out.
The IEA, as part of a logical turn in evidence theory in the 19th Century, follows a simple idea - anything relevant should be admissible. The shift was seen as welcome, doing away with many artificial rules barring all kinds of useful material from consideration of a court. The endorses this logic in section 5, and goes on to spell out what is meant by 'relevant' for purposes of trials in Indian courts through Sections 6 to 55 of the Act. So we find that evidence of cause and effect, of motive, of alibi — all of these are, naturally, relevant, and so naturally kinds of evidence that can be led at trial.
Dumbing down the concept of relevance was intentional. Stephen felt that it would allow for greater consistency across a jurisdiction not fully familiar with English law concepts. The scheme has its admirers till today — no doubt also in the Government which chose to retain it lock, stock and barrel (minus some pre-partition references in the illustrations). But having such a detailed scheme of relevance comes with its problems. There are limits to language, and breaking up the ordinary goings-on of life into Victorian prose creates confusions in a world which has moved far from that context. It also creates a problem of exclusion - what is not in Sections 6-55 is beyond the pale. Why should it be so? Can't we trust the judge — the same judge who we trust to exclude inadmissible evidence from consideration — to decide what is relevant and what is not?
Linked to this is another problem with the IEA approach to admissibility, adopted in the BSA. By stating that all that is relevant is admissible, without considering that some of this evidence many be tainted due to constitutional guarantees which came in after 1872 - either directly or by implication. Surely the constitutional barrier cannot be undermined by statutory rules, but we see time and again courts are stuck in this dilemma, most commonly in context of the right against compelled self-incrimination and most recently in context of the fundamental right to privacy.
The 'relevant = admissible' coda also comes unstuck because of the asterisk that an IEA placed at the time, which has become an increasing point of debate as the world has gone digital. Yes, all that is relevant is admissible, but for some kinds of material there are additional hoops that have to be crossed. Documents must be original; Wills must have two attesting witnesses; And, most relevant for us, Printouts must carry certificates of experts. Having such rules might have made sense at the time as a compromise to the logic of relevance, but does it make sense to retain them even after the IEA embedded its roots in the system over 150 years?
Theme 4 — Codifying Appreciation of Evidence?
The IEA and BSA extensively deal with admissibility and relevance of evidence and facts. But they conspicuously say very little about assessing appreciation of evidence by a judge. Does this mean that there are no rules governing this field, and they are left to the whims and caprices of a judge? Not at all. There are rules which have been cemented over time, operating at par with the codes while not being codified. A good example is the treatment of approver's testimony — not enough without corroboration — and consideration of a case based on circumstantial evidence.
Why did the IEA and BSA not spend so much time on weighing evidence? Because, traditionally, it was a task left for the jury which was guided by a judge in each case by way of the judicial instructions given at the close of evidence. It was these instructions which birthed many of these rules in the first place. Now, even as there are no juries, the value of these concepts has meant that judges continue to adhere to them as if they are edicts. If we are sticking to codes, then why not add these rules as well, to leave no matter of doubt and perhaps improve upon them?
Concluding the Series
The Indian Penal Code, Criminal Procedure Code, and Evidence Act, were living monuments by the time of their repeal in 2023. Like any other living monument, they stood still (mostly) while the world around them drastically changed. This created a paradox where legal codes hardwired on 19th Century problems and solutions for a former colony kept being used to deal with 21st Century problems faced by the most populous country in the world. Recognising this, in 2023 the Indian government finally decided to pull the plug on the codes. Thus, on July 1, 2024, they were replaced with three new laws which operate ... almost exactly the same way that the colonial codes did.
The three posts in this short series sought to highlight some themes for discussion surrounding the three codes governing the Indian criminal process (now, from beyond the grave). With a focus on systemic issues and concepts, rather than specific nitty-gritty type issues, the idea is not to suggest, even for a moment, that these are the only themes meriting discussion or that the thoughts here are the only take on those themes. The point, as always, is simply to sustain the ongoing conversation around the architecture of the Indian criminal process.
