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

1. The ancient Hindu period;
2. The ancient Muslim period; and
3. 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

1. Lekhya (documentary evidence),
2. Sakshi (witnesses), and
3. Bukhthi (possession).

Some main features of Hindu or Ancient evidence law

• Oral evidence was to be direct and first-hand not what one has heard.
• Circumstantial evidence was an important feature both in criminal and civil cases but stress was laid upon careful inquiry and investigation of circumstances in order to minimize mistakes.
• Torture was permitted but not considered solely an element of evidence.
• There were various circumstances for putting burden of proof. e.g., if defendant admitted the commission, then there was no need of burden of proof
• Witnesses were also divided on the basis of kinds of persons who were included in the commission and who were not.
• Documents were divided into: – Public & Private. Etc

Muslim period

In 1206, a formerly enslaved Mamluk named Qutbubuddin Aibak conquered northern India and founded a kingdom.

This was the first time the Muslim or Mohammadan law start to applied on the subjects.

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.

However, non-Muslims were not subjected to Muslim-law on civil matters but criminal law was applied equally over them also.

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.

Features of Muslim period

Representatives, modern day wakils, were allowed to represent and argue on behalf of clients and they were paid by the state and could be promoted as Kazis .

According to Hanafi law, which was prevalent in Muslim India, evidence is; (a) Tawatur or fully corroborating (b) Ehad or testimony of one., (c) Iqrar which means acceptance or confession

Oral evidence was to be direct.

Hearsay evidence was also preferred but under strict scrutiny and conditions. e.g.- 4 witnesses required in order to prove adultery in Muslim law

Evidence produced in a court was to be in support of one’s cause, so relevancy can be inferred

British Period (East India Co. & Crown Rule)

The East India Co. came in India in the year 1601 after which it got trading rights in Surat by the Emperor Jahangir then in Bengal by Emperor Shah Jahan.

They had trading rights and a little number of administrative powers which subsequently, after the decisive Battle of Buxar in 1764, significantly grew in all realms of political administration of its provinces.

The Muslim penal law was prevalent in Bihar, Bengal and Orissa and after Britishers came they didn’t alter it over 100 yrs and never they touched upon Personal Law ever much

But gradually after gaining much power and sovereignty they took upon themselves the task of judicial administration of India and superseding the existing Muslim law, importing the modern English laws through a cohort of enactments.

The act of Regulation, 1773 made a substantial change in the judicial system of India by establishing courts outside Bengal and establishing Supreme Court of Judicature in Calcutta.

After that there was a dual system of justice in presidencies and mofussil through the acts of 1781, 1801 and 1823

Now it was felt necessary to assimilate the procedural laws first than the substantive laws of this dual system.

First Law Commission Report, under Sir Macaulay, came in 1833 with several enactments. In 1835, first enactment regarding law of evidence was part as Act 10 of 1835 of Governor-General-in-council which was applied in all courts; provincial and mofussil.

The English judges in India were following English law on matters that were not mentioned in the Acts in place of Islamic Law.

The Third Law Commission of India assigned Sir Henry Maine with task to draft the Indian Evidence Act and it was rejected after being introduced by Sir Henry owing to the fact that it was not suitable for India.

Indian Evidence Act, 1872

Now the task of drafting a suitable code for Evidence Law came upon the shoulders of Sir James Fitz James Stephens, which he completed and culminated into what we know today as Indian Evidence Act, 1872.

In 1868, a commission was setup to frame a draft code and 39 sections were included in the code.

The code was termed as irrelevant to India and was dropped out. In the year of 1870, a new bill containing 163 sections in a form different for the present Evidence Act of 1872 was prepared by James Stephen which he recasted and ultimately Indian Evidence Act, 1872 was passed.

After the partition, the act applied to both the nation, India and Pakistan except the territory of Jammu & Kashmir.

It has 11 Chapters and 167 sections and came into force on 1st September 1872 and applies to all over India.

After independence the Act was extended to, and remains in force in, the whole of the Republic of India .

It is also in force in Pakistan, Bangladesh, Sri Lanka and Burma. It has heavily influenced the laws of Malaysia, Singapore, Brunei, Kenya, Nigeria, Uganda, Zanzibar, parts of the West Indies and even, for a time, parts of Australia – the Christmas and Cocos (Keeling) Islands

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