Faculty Seminar | Hidden in Plain Sight- The Indian Evidence Act, 1872 as a Guide to Evidence Law Reform 

Speaker:

Mr. Kunal Ambasta, Assistant Professor of Law, NLSIU

Abstract:

The Indian Evidence Act, 1872 was one of the first attempts at reducing the law of evidence to a set of clear and comprehensive provisions, which could be easily employed, and prove equal to the demands of administration of justice in a region far removed from the circumstances of the United Kingdom. At the same time, it also represented a significant moment for the experiment of codification to be carried forward, after the Indian Penal Code, 1860.

This paper argues that in his attempt to craft a code of evidence for India, Sir James Fitzjames Stephen also brought into effect his conceptions of the fundamental principles of the law of evidence, which were at variance with how the common law on the subject had developed, and was arranged. This resulted in a novel method of looking at the subject, and shows forth in his code as well as in his writings on the subject. His principal aim was to arrive at a better system of evidence law for the UK itself, one which would solve the persistent confusions around subjects such as hearsay.

The present paper argues that the Indian Evidence Act was, however, neither interpreted nor understood in the manner that Stephen had intended for it, and instead, common law rules of evidence law were reintroduced into the Act through judicial application, and scholarly evaluation of its schema. The result was that a potentially astute method of trying to solve some of the most persistent problems of the law of proof was completely lost, and remains hidden to this day. Twentieth century codification efforts across the USA and the UK have similarly not considered the Indian Evidence Act as a plausible model for law reform. This is unfortunate, since most of these “modern” statutes could have been designed better with the principled clarity that we find in the Indian Act. This paper argues that Stephen’s work may still serve as a guide to the reform of evidence law, if it is appreciated in its own light, and without the common law tinted glasses that we have always looked at it through.