Wednesday, 20 July 2022

Historical Background of Evidence Act, 1872 by Mayurakshi Sarkar

 Historical Background of Evidence Act, 1872

In order to trace the history of the law of evidence in our country, we have to study three different periods:

  • The ancient Hindu period;

  • The ancient Muslim period; and

  • The British period.

Ancient Hindu period:

The sources of information relating to the law of evidence prevailing in Hindu India emanate from the Hindu Dharmashastras.

According to Hindu dharmashastras, the purpose of any trail is the desire to ascertain the truth. The emphasized that a judge by using his skill should extricate the deceit like a physician taking out from the body an iron dart with the help of the surgical instruments.

Vasista recognisewd three type of evidence:

  • Lekhya (documentary evidence),

  • Sakshi (witnesses), and

  • Bukhthi (possession).

Ancient Muslim period:

With regard to the law of evidence discussed in the book “Muslim Jurisprudence” written by the sir Abdul Rahim, the Mohammendan law givers deal with evidence under the heads of oral and documentary. Oral evidence is further sub-classified into direct and hearsay evidence as in present day.

In the British Era:

In British India, the presidency courts by virtue of a royal charter establish in Bombay, Madras and Calcutta were following English rules of the law of evidence. In mofussil courts, outside the presidency towns, there were no definite rules relating to the law of evidence. The courts enjoyed unfettered liberty in the matter of admission of evidence. The entire administration of justice in the mofussil courts, in the absence of any definite rules regarding the law of evidence, was in total chaos.

There was a dire necessity for the codification of the rules of law. In 1835 the first attempt was made to codify the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about eleven enactments were passed dealing with the law of evidence. But all these enactments were found inadequate.

In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne. He submitted the draft, which was later found unsuitable to Indian conditions. Later in the year 1870, this task of codification of the rules of law of evidence was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft and it was referred to the select committee and also to High Courts and members of Bar to elicit the opinion, and, after gathering opinion, the draft was placed before the legislature and it was enacted. And at last, “The Evidence Act” came in to force on 1st September, 1872.

Prior to Independence, there were as many as 600 princely States in India, which were not within the jurisdiction of the British system of justice. Each of these states had its own rules of law of evidence. But by and large, followed the Indian evidence Act, 1872. After independence, there was a merger of princely states into the Indian Union. Both the substantive as well procedural laws have since been made uniformly applicable to all states, whether British province or native States. So much so, the law of evidence is now applicable to all states constituting the Union of India. 


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