COLLECTION OF EVIDENCE: FROM PAST TO PRESENT
This blog contains a discussion of the evolution of evidence laws in the Indian subcontinent. It discusses the process of evidence collection in Ancient India's compared to the rules found under the Indian Evidence Act of 1872.
The concept of evidence has always been found coupled withthe necessary judicial requirements of structured civil societies. In fact, aswe move from the earliest forms of evidence collection, we observe anincreasing significance of evidence laws which become even more intricate overtime (a process visible in the codification of the various evidence lawstoday). This progression of evidence laws not only demonstrates how Indiansociety has evolved through history by both adopting and rejecting various provisionsbut also puts forth various cultural viewpoints and thought processes thatcontinue to be a part of the Indian subcontinent even today.
Before we proceed to investigate the history of evidencelaws in various contexts throughout history foraging for various similaritiesand differences it becomes necessary to define ‘evidence’.
The word ‘evidence’ finds its origins in the Latin noun‘evidentia’ which means “obvious to the eye or mind”.Simultaneously, the Indian Evidence Act of 1872 (hereinafter called theIEA) defines “Evidence” as meaning and including -
“(1) all statements which the Court permits or requires tobe made before it by witnesses, in relation to matters of fact under inquiry;such statements are called oral evidence;
(2) [all documents including electronic records produced forthe inspection of the Court;] such documents are called documentary evidence.”
Kinds of Evidence
Hindu laws of evidence are built on various Vedic texts andthe Dharmashastras (Sanket and Karkara). Several later texts such as theManusamhita, treaties of Vishnu, Narada, Vasistha, and Brhaspati, (Thakur) containsuch laws as well. After analyzing these texts, we can divide the different kinds of evidence found in Hindu law intofour categories (Thakur) namely -
On the other hand, Muslim rulers followed the Islamic law aslaid down in the Holy Quran to determine legitimate forms of evidence (note thesubclassifications under Oral evidence) (Sanket and Karkara) -
1. Oral Evidence
2. Documentary Evidence
The Indian Evidence Act, of 1872 identifies many kinds ofevidence -
1. Oral Evidence (Section 60 of IEA)
2. Documentary Evidence (Section 3 ofIEA)
3. Primary Evidence (Section 62)
4. Secondary Evidence (Section 63)
5. Real Evidence
6. Hearsay Evidence
7. Judicial Evidence
8. Non-Judicial Evidence
9. Direct Evidence
10. Circumstantial Evidence
The act of taking an oath as a witness is one of the fewpractices which have found their way into contemporary times. Interestingly,this act of taking an oath is found in all kinds of cultural jurisdictions seenin this country. Oaths are designed to invoke and inculcate a fear of God inthe witness (Sanket and Karkara). They remind the witness of divine punishmentpushing him to speak in a calculated way (Sanket and Karkara). Although thispractice is frequent the ways of taking an oath differ.
For example, Under Hindu legal proceedings the witness wasadministered an oath through a very intricate process under which he wassupposed to take off his shoes and turban and take either gold, cow dung orsacred grass in his hands (Thakur).
Section 14 of the Indian Oaths Act 1873, laysdown diverse ways of administering oaths considering people of differentreligions as well as those who have no religious belief or may not want to takeone due to their belief.
Witnesses – Character andLimitations of Caste and Gender
Witnesses form an integral part of evidence law. They are sovaluable in nature that most of the Hindu laws are woven around them, theircharacter and even things such as their class, caste, and gender (Thakur). Suchdifferential treatment of witnesses and their testimonies also occurred inMughal Court proceedings.
Hindu lawmakers made sure that witnesses must “come from thecaste and class of the party by whom they are appointed”, i.e., a woman shouldbe a witness for a woman or lower caste people be witnesses for lower castes(Thakur).
Similarly, Muslim laws too laid down several distinctionsfor non-believers (Hindus) (Sanket and Karkara), women and other witnesses suchas drunkards, professional singers, sons in favour of fathers, etc. Suchwitnesses were considered incompetent, and their testimonies were inadmissible(Sanket and Karkara). For example, Hindu witnesses against Muslims wereconsidered incompetent while the evidence provided by two women was seen asequal to that provided by one man (Sanket and Karkara). Character and demeanourtoo played a crucial role in witness evaluations.
The entry of British administrators into the country saw theerasure of such discriminatory practices. The Code of Cornwallisdiscarded the belief against women witnesses and allowed them to provideevidence (Sanket and Karkara). It also removed the two female witnesses equalto one male rule as prevalent under Muslim rulers (Sanket and Karkara).
Although social standings and gender are not consideredrelevant aspects today, Sections 52 and 53 of the Indian Evidence Actlays down some rules considering the character of witnesses. Under theseprovisions, the character of the witness in civil cases is broadly renderedirrelevant with the exception that it may appear relevant from the facts of thecase while the character of any witness in criminal cases is consideredrelevant.
Ordeals or Divya – God’struth
Ordeals may be considered one of the more distinct andintriguing parts of the evidence collection process in the country’s history.Ordeals were seen as a way for God to determine guilt and they can be found inother ancient justice systems (Medieval Europe, Burma) as well. Let us take abrief look at the five key ordeals enshrined in the various Hindu legal texts.
1. Ordeal by Balance (Tula) (Thakur) - The accused wasweighed in a balance against other pans to determine their guilt (Sanket andKarkara).
2. Ordeal by Fire (Thakur) – The accused was to pullout a coin out of a boiling liquid or lick a red-hot ploughshare with histongue and if there were no signs of burning, he was considered innocent(Sanket and Karkara).
3. Ordeal by Water (Thakur) – The accused was immersedin water and if for a certain period he was able to do that he was consideredinnocent (Sanket and Karkara).
4. Ordeal by Poison (Thakur) – The accused was providedpoison in small quantities with his food and if the poison did not cause him anyharm, he was considered not guilty (Sanket and Karkara).
5. Ordeal by Consecrated Water (Thakur)
Some other kinds were – Ordeals by Grain of rice (Tandula),hot piece of gold (Taptaniasha), ploughshare (Phala), Kosa, Lot (Dharma &Adharma), etc. (Thakur).
The administration of these ordeals was based on severalfactors such as the caste (Brahmins were not given ordeals by poison) (Thakur),gender (Ordeals of balance were reserved for women) and children, age, or anydisease the person (Ordeals of water and poison for people with leprosy) maysuffer from (Thakur).
As of today, ordeals are found to be present in some remoteparts of the country either hidden away from the comparatively large effects ofthe legal system in the country or amongst people who may still follow theseancient rituals. However, such practices do not form a part of the evidencelaws under the current legal system.
Relevance of Medical Evidence
Criminal investigations require an array of medical evidenceto be collected and examined to deliver accurate judgements. Kautilya’s Arthashasrta,an ancient Sanskrit treatise of statecraft, political science and law, providesa list of various autopsy procedures determining the cause of death. Hementions various Medico-legal and toxicology descriptions (Prasad etal.), created to help in the process of evidence examination. The following aresome examples:
Death by Suffocation – A corpse with inflated organs,swollen hands and legs, open eyes and ligature marks on the neck may beregarded as been killed by suppression of breathing or suffocation (Prasad etal.).
Death by Hanging – A person who has contracted armsand thighs as well as swollen hands, legs and belly coupled with sunken eyesand an inflated navel may be regarded to have been killed by hanging (Prasad etal.).
Death by Poison – “Dead person with dark colouredhands, legs teeth and nails with loose skin, hairs fallen, flesh reduced andwith face bedaubed with foam and saliva, may be regarded as having beenpoisoned (Prasad et al.).”
Death by falling – Presence of fractures and brokenlimbs point towards death by being thrown down (Prasad et al.).
Death by Drowning - “Dead person with stiffenedrectum and eyes, with tongue bitten between the teeth, and with belly swollenmay be considered as having been killed by drowning (Prasad et al.).”
Medical evidence has also been recorded to be significantduring British Rule in India (Mathiharan). Furthermore, forensics has emergedas an individual subject of study and research. Technological advancements inthe field have brought about considerable changes in the way evidence istreated today. These changes would not have been possible without a historicalantecedent discussed before.
The Indian Evidence Act, 1872, is a comprehensive documentof rules that consolidates judicial proceedings under evidence laws many ofwhich, as was previously discussed, have been borrowed from ancient legalsystems. Even with such attributes, the act has been subject to severalamendments such as the Indian Evidence (Amendment) Act, 2003 as well as theamendments by the formation of the Criminal Law (Amendment) Act, 2013 (evidencein cases of rape) (Lakshmi). Very recently an amendment in the InformationTechnology Act, of 2000 brought about a relatively recent practice allowingelectronic records as evidence as well (Lakshmi). All such changes to thestatute highlight the ongoing evolution of evidence laws and provide anintriguing outlook for their future.
Lakshmi, S.Raja. “Law of Evidence - Study Material.” The Tamil Nadu Dr. Ambedkar LawUniversity, https://tndalu.ac.in/econtent/35_Law_of_Evidence.pdf.
Mathiharan,Karunakaran. “Origin and Development of Forensic Medicine in India.” TheAmerican Journal of Forensic Medicine and Pathology, vol. 26, 2005, https://doi.org/10.1097/01.paf.0000163839.24718.b8.
Prasad,Penchala, et al. “Historical Evidences on Medicolegal Autopsy and ToxicologicalDescriptions in Kautilya's Arthaśăstra.” Bulletin of the Indian Institute ofHistory of Medicine , vol. 36, 2006, pp. 167–174., https://doi.org/https://www.researchgate.net/publication/5673848_Historical_evidences_on_medicolegal_autopsy_and_toxicological_descriptions_in_Kautilya's_Arthasastra.
Sanket,Yadav. “Impact of Improper Admission and Rejection of Evidence a Socio LegalStudy with Special Reference to Indian Evidence Act.” University ofRajasthan, Edited by G S Karkara, 2014, https://doi.org/http://hdl.handle.net/10603/148732.
Thakur,Amareswar. Hindu Law of Evidence or a Comparative Study of the Law ofEvidence According to the SMRTIS. University of Calcutta, 1933.
O.P. Jindal Global University,
B.A. L.L.B (Hons), 1st Year, 2nd Semester