History of Law of Evidence

History of law evidence can be traced back in ancient as well as in medieval and modern systems of law.

The law of evidence is lex fori which governs the courts; whether a witness is competent or not; whether a certain facts requires to be proved by writing or not; whether a certain evidence proves a fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits enforce it.[i]

The early history of law of evidence in India can be traced back in Dharma Shastra as well as in Muslim and English systems of law. It was always recognized by Dharma Shastra that the purpose of any trial is the desire to ascertain truth. The early lawmakers recognised that trial often involved suppression of facts and appreciation of falsehood. Therefore, Law of Evidence took every possible precaution, consistent with times to secure the discovery of truth. The Indian law of evidence had attained by the time of the ancient Dharma Shastra, a considerable degree of perfection and embedding many modern concepts.

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History of Law of Evidence: Ancient Period

Everything in ancient India, including kings, was subservient to Dharma (complete rules of right conduct). Sources of law of ancient India are namely; Vedas, Smriti, and Achara (customary law). The earliest lawgiver of early Hindu law is Manu. The subcontinent was divided in a number of independent territories and every territory has a leader whose main objective was to protect Dharma and rule according to it. Dharma also means observance & conduct of truth.

So, truth was given an integral importance in ancient India which led to the same in laws of that period. The whole administration was divided in different units ranging from villages to towns and provinces. There is no evidence of a single judge & lawyer but there was a jury system prevalent. Even the king would have to consult Brahmins on any matter relating to justice. The authority to rely on were Dharma Sutras.

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All the matters pertaining to civil & criminal matters were heard. A person wanted to make representation in a court on any matter would submit a complaint and after due consideration whether to admit such a complaint, the defendant was called. Each one had to submit a written complaint and reply and after due deliberations, the burden of proof lied upon whom the jury considered to, and he had to submit his evidence in order to substantiate his claim. There are two kinds of proofs in Hindu law; 1. Divine, 2. Human.[ii]The former consisted of ordeals and latter consisted witnesses, documents and inferences from the circumstances.

History of Law of Evidence:Medieval Period- Muslim Rule

By the end of the Mameluke dynasty, the first Muslim dynasty in India, Muslim rule was well established in India. The administration of justice was also largely administered by the Muslim rulers. The Islamic thinking and state were influenced by Iranian & Byzantine philosophies but Islamic principles remained integral throughout in the administration of justice. Men of affairs laid out a great stress on justice and equity in conformity within the limits of Islam. Contrary to Hindu laws, king was the supreme authority of rule in Muslim India.

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Ziauddin Barani laid out a great stress on despotism. Barani was the main man of affairs in Delhi Sultanate who is an authority in matters pertaining to Muslim administration. He gave an idea of justice; ‘adl’, based on equal treatment and supreme authority of justice above all even for non-Muslim subjects.

However, non-Muslims were not subjected to Muslim-law on civil matters but criminal law was applied equally over them also. After the advent of Mughals, the subcontinent was again divided into several fragments but the administrative setup of Delhi Sultanate was imitated more or less by all the rulers.

Then came Abul Fazl in the picture who played an important role in Mughal administration and its setup. The King was again the supreme authority, as indicated by the concept of farr-i-izadi of Abul Fazl, but then came Qazi (judge). There was a body of Ulemas (Muslim jurists). There were several offices of; Qazi, Mufti, Mir Adl, Muhtasid etc. were instituted for the sole purpose of delivering justice as Abul Fazl gave very much importance to justice and considered King as its supreme provider.

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History of Law of Evidence:British Period

The modern law of evidence, like many branches of our legal system, owes its inception to English Common Law. Till the beginning of the 18th century most of the rules remained contained in rulings and dicta. A sort of uncertainty was prevailing which was not only in the field of law of evidence but also in the other fields of law. The first book on evidence was written by Chief Court Baron, Gibert which was published in 1756 after thirty years of his death. Along with the reforms in English Law, in India too, after 1833 various legal reforms were introduced. Between 1835 and 1853, a series of Acts[iii] were passed by the Indian legislature which introduced some stray reforms in Indian law of evidence. Finally, after a lot of twists and turns a draft prepared by Sir James Stiphen was introduced in the Council in Governor-General in India in 1871 and was duly enacted in 1872 which is the present Indian Evidence Act.

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Such Act also have some other limitations like, it applies to all judicial proceedings in or before any court including the Courts Martial, other than Courts Martial under Army Act, Naval Discipline Act and Air Force Act.

[i] Bain v. White Raven and Furness Junction Ry., (1850) 3 H.L.C. 1. At p. 19.

[ii] Sarathi, V. P. (1972). HISTORICAL BACKGROUND OF THE INDIAN EVIDENCE ACT, 1872. Journal of the Indian Law Institute, 2 http://www.jstor.org/stable/43950171

[iii] Act X of 1835; Act XIX of 1837; Act IX of 1840; Act VII of 1844; Act XV of 1852; Act XIX of 1853; Acts II and X of 1855.

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