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ABSTRACT
The Indian Evidence Act 1872 was a significant component of the legal codification project of colonial India. It aimed to consolidate scattered common law rules of evidence into an organized and workable code. Sir James Fitzjames Stephen, its principal draftsman, attempted to design a statute that would not only reorganize evidence law into cogent provisions but also improve its most confusing aspects, such as the fact-evidence distinction, hearsay, and relevance. Stephen did this by introducing conceptual categories and amending existing rules. In this paper, I show how the design of the Act aimed to achieve substantive reform of evidence law. I argue that judicial interpretation and academic scholarship have misconstrued the Act’s principles and structure, undermining its intended improvements on common law rules. Consequently, the legal confusions it had sought to resolve have continued to persist in evidence law.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 James Fitzjames Stephen, An Introduction to the Indian Evidence Act: Principles of Judicial Evidence (Thacker, Spink & Company 1902) 3.
2 The Act does mention the recognized exception of dying declaration to hearsay in illustrations to certain provisions. This can also be understood by the fact that illustrations to provisions were propositions decided by courts in England. The term “dying declaration” is used in illustrations (j) and (k) to s 8, illustration (a) to s 104, and, in a different form, illustration (b) to s 155 of the Act.
3 Leon Radzinowicz, Sir James Fitzjames Stephen: 1829–1894: And His Contribution to the Development of Criminal Law (Bernard Quaritch 1957) 25.
4 Marc O DeGirolami, “James Fitzjames Stephen: The Punishment Jurist” in Markus D Dubber (ed), Foundational Texts in Modern Criminal Law (OUP 2014) 184.
5 Keith John Michael Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (CUP 1988) 126.
6 Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India” (2005) 23(3) Law and History Review 631.
7 Lord Macaulay, “A Speech Delivered in the House of Commons on 10 July 1833” in The Miscellaneous Speeches and Writings of Lord Macaulay (Longmans, Green & Co 1889); Lord Macaulay, Speeches (Redfield 1853) 277.
8 Keally McBride, Mr Mothercountry: The Man Who Made the Rule of Law (OUP 2016) 23.
9 “Minute of James Fitzjames Stephen on Administration of Justice in India” Selections from the Records of the Government of India, No lxxxix (Home Secretariat Press, Calcutta 1872) 8.
10 David Skuy, “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century” (1998) 32(3) Modern Asian Studies 513, 517.
11 Kolsky (n 6) 632, 633.
12 James Fitzjames Stephen, A Digest of the Law of Evidence (5th edn, Macmillan and Co 1887) v.
13 Stephen (n 1) 3.
14 Stephen (n 1) 8; Stephen (n 12) ix.
15 Stephen (n 1) 2; Leslie Stephen, The Life of Sir James Fitzjames Stephen BART, KCSI A Judge of the High Court of Justice (Smith, Elder & Co 1895) 274. A great challenge in administering the law of evidence in India before its codification was that trial court judges were often untrained and lacked adequate resources, such as access to law libraries or assistance from legal professionals trained in the common law. Therefore, an express and intelligible code could serve as a useful guide to judges across India.
16 Stephen (n 1) 174.
17 James Fitzjames Stephen, “Legislation under Lord Mayo” in William Wilson Hunter, A Life of the Earl of Mayo, Fourth Viceroy of India (vol 2, Smith, Elder & Co 1876) 201.
18 John D Heydon, “The Origins of the Indian Evidence Act” (2010) 10(1) Oxford University Commonwealth Law Journal 25.
19 Eric Stokes, The English Utilitarians and India (OUP 1959) 223.
20 James Fitzjames Stephen, A History of the Criminal Law of England (vol 3, Macmillan & Co 1883) 302–303.
21 George Otto Trevelyan, The Life and Letters of Lord Macaulay (Low and Brydone 1959) 387.
22 James Fitzjames Stephen, “Codification in India and England” (1872) 18 Fortnightly Review 654.
23 Heydon (n 18) 10–11.
24 Stokes (n 19) 229; John Roach, “James Fitzjames Stephen (1829–94)” (1956) 88(1–2) Journal of the Royal Asiatic Society 1–3.
25 Jeremy Bentham, Works (vol ii) 355, (vol iii) 207–209, cited in Stokes (n 19) 229.
26 “Minutes” (2 January 1837) in CD Dharker, Lord Macaulay’s Legislative Minutes (OUP 1946) 256.
27 Stokes (n 19) 230–231.
28 Stokes (n 19) 277–279.
29 Evidence Act, s 3.
30 ibid.
31 Evidence Act, ss 5–55.
32 Stephen (n 1) 15.
33 Stephen (n 1) 8–9.
34 An out-of-court statement introduced to prove the truth of the matter asserted would be hearsay. Subramaniam v PP [1956] 1 WLR 965, 970 (PC); ibid.
35 Mutual Life Insurance Co of New York v Hillmon 145 US 285 (1892) (Supreme Court of the United States of America). The decision established the Hillmon exception, codified in Rule 803(3) of the Federal Rules of Evidence, and treated an out-of-court statement of future intent as an exception to the hearsay rule.
36 For a discussion on the Hillmon exception, see Laurence Henry Tribe, “Triangulating Hearsay” (1974) 87(5) Harvard Law Review 957. On Singapore’s treatment of Stephen’s relevance, see Robert Margolis, “The Concept of Relevance: In the Evidence Act and the Modern View” (1990) 11 Singapore Law Review 24.
37 Sidney Lovell Phipson, “‘Real’ Evidence” (1920) 29(7) Yale Law Journal 705.
38 Evidence Act, s 3.
39 James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown & Co 1898) 263.
40 Evidence Act, ss 3, 5, 60. Section 60 provides for the inspection of material objects in court.
41 Stephen explains the effect in detail, which his critics have often overlooked. Stephen (n 1) 15.
42 Phipson (n 37).
43 Evidence Act, s 3.
44 Stephen (n 1) 52–55, 74–77. Stephen remarks that the use of plain logic expressed through language to display a fact’s relevance would lead to obscurity, and for this reason, relevancy was “very fully defined in the Evidence Act”.
45 ibid 77.
46 Evidence Act, s 5.
47 Evidence Act, s 136.
48 Evidence Act, s 11.
49 Evidence Act, s 5.
50 Evidence Act, ss 52–55. “Character” is treated wholly within the rules of relevance in these provisions.
51 Stephen (n 1) 6.
52 Stephen (n 1) 164, 166. The same understanding is also applied in Article 14 of Stephen’s Digest. Stephen (n 12) 22.
53 Stephen (n 1).
54 Section 60 of the Act embodies the rule of direct oral evidence and requires that oral evidence may only be given on facts directly perceived and not those that the witness may have come to know of through indirect sources.
55 A statement capable of being perceived is a fact: Evidence Act, s 3.
56 R v Jenkins (1869) 11 Cox CC 250.
57 ibid.
58 Evidence Act, s 32(1).
59 ibid.
60 R v Jenkins (n 56); Rex v Woodcock [1789] 1 WLUK 2 (Crown Cases Reserved). The basis of the dying declaration exception was:
… .that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
61 The hearsay exception of res gestae (Latin for “things done”) admits out-of-court statements to prove the truth of the matter asserted where a declarant makes such statements spontaneously. Res gestae may also be used for statements that are part of or explain a physical act or which describe the declarant’s state of mind. In this paper, I focus on the meaning premised on spontaneity.
62 R v Bedingfield (1879) 14 Cox CC 341 (Assizes); R v Andrews [1987] AC 281 (HL).
63 Evidence Act, s 6. In Article 3 of Stephen (n 12) 4, “transaction” is defined as “ … a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue”.
64 Section 6 of the Act provides that the statements would be relevant “whether they occurred at the same time and place or at different times and places”. Section 21(2) of the Act could also be understood as declaring the relevance of statements secured by the usual res gestae guarantees of reliability.
65 Wright v Tatham 112 Eng Rep 488 (1837) (Court of Exchequer). In recent years, the complex interaction between relevance as it is understood in the common law and questions of implied hearsay have come to the fore in two cases. One of them is R v Kearley 1 App Cas 228 (HL), and R v Blastland [1986] AC 41 (HL). In both these cases, the central question was the relevance of certain utterances made by persons not accused but may, if admitted, be capable of imparting inferences as to the guilt of the accused. The opinions in both these cases referred to the relevance of the facts that these utterances sought to prove and very obliquely might have touched upon the problems of understanding relevance in a logical sense alone. Stephen’s approach, which might have only allowed proof of facts declared relevant, may have been more helpful in these situations. Professor Eleanor Swift advocates an alternative approach to solving this problem, which is the approach of the “foundation fact”. The “foundation fact” method is also encompassed in the Act. Under section 9 of the Act, facts “necessary to explain or introduce a fact in issue or relevant fact … ” are declared relevant, thereby admitting evidence of their proof. Eleanor Swift, “Relevance and Hearsay in Regina v Kearley” (1996) 16 Mississippi College Law Review 75.
66 Stephen (n 1) 14.
67 Keen v Keen (1872–75) LR 3 P&D 105 (Courts of Probate and Divorce).
68 Tan Y Lin, “Stephen’s Hearsay – Does it Matter” (1991) 12 Singapore Law Review 128.
69 Gerald Dacre Nokes, “Codification of the Law of Evidence in Common Law Jurisdictions” (1956) 5(3) International & Comparative Law Quarterly 347, 356.
70 The Federal Rules of Evidence, Rule 401.
71 Ratan Singh v State of Himachal Pradesh (1997) 4 SCC 161 (Supreme Court of India); Sukhar v State of Uttar Pradesh (1999) 9 SCC 507 (Supreme Court of India).
72 The reader will recall this example from section 3.
73 This would amount to admitting hearsay evidence in a judicial proceeding without the test of either spontaneity or contemporaneity applying. This is inconsistent with the design of the Act.
74 Section 32(1) of the Evidence Act has been repeatedly interpreted as the exception of dying declaration in Indian law.
75 [1952] AC 480 (PC).
76 (1885) ILR 7 All 385 (High Court of Allahabad).
77 ibid 400, 401 [14] (Mahmood J) (emphasis added).
78 (2013) 12 SCC 17 (Supreme Court of India).
79 ibid [12] (Khehar J) (emphasis added).
80 Stephen (n 1).
81 Stephen (n 1) 164, 166.
82 See for instance, illustrations (j) and (k) to s 8, illustration (a) to s 104, and, in a different form, illustration (b) to s 155. The language used in s 33 and illustrations (b) and (c) to s 21 needs to be clearer on the relevance-admissibility distinction points, which are otherwise meticulously maintained throughout the Act.
83 Stephen (n 1) 7. Stephen says, [t]his implies that the word hearsay is nearly, if not quite, equivalent to irrelevant. But the English law contains nothing which approaches to a definition of relevancy”.
84 [1956] 1 WLR 965, 970 (PC).
85 Lin (n 68) 133.
86 Stephen (n 12) ×ix.
87 According to Stephen, legislation was the best method to remedy the situation. However, Stephen also remarked that an attempt towards comprehensive legislation on abstract questions had not even been made in the United Kingdom. Such attempts had been successful in India, notably through the Indian Penal Code. Stephen (n 1) 3.
88 Smith (n 5) 129, 130.
89 Courtenay Peregrine Ilbert, “Sir James Stephen as a Legislator” (1894) 10 Law Quarterly Review 222, 224.
90 Stephen (n 12) 4.
91 Stephen (n 12) 28. The Act follows the definition of “confession” laid down by the Privy Council in Pakala Narayanaswamy v King Emperor (1939) IA 66 (PC).
92 Evidence Act, s 17.
93 Pulukuri Kottaya v King-Emperor AIR 1947 PC 67 (PC).
94 Thayer (n 39) 265.
95 ibid.
96 James Bradley Thayer, “Presumptions and the law of Evidence” (1889–90) 3(4) Harvard Law Review 141, 145–146.:
97 This argument is found in George Clifford Whitworth, The Theory of Relevancy for the Purpose of Judicial Evidence (Thacker & Co Ltd 1881). However, the author correctly appreciates the fact-evidence distinction in the Act, and his argument then shifts to identifying logical relationships other than those mentioned in the Act as being logically probative. For a discussion on Whitworth, see Heydon (n 18) 30.
98 Nokes (n 69) 357. It is worth citing the specific part of Nokes’ critique of the Act on this point, which illustrates his consistent evaluation of the Act from a solely common law perspective.
Naturally a lawyer of Stephen’s experience was aware that relevance is a matter of reasoning, while admissibility is a question of law; and that relevant evidence is admissible, unless it is excluded by some rule of discretion or law, such as privilege from disclosure. But somewhat surprisingly he obscured this distinction, by treating admissibility as though it were the same as relevance.
99 ibid.
100 ibid.
101 Evidence Act, ss 5 and 24. Section 5 states, “Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others”.
102 Stephen (n 1) 166.
103 John Reynolds Gulson, The Philosophy of Proof in Its Relation to the English Law of Judicial Evidence (George Routledge & Sons Ltd 1905) 223, 225.
104 Phipson (n 37) 710.
105 Gulson (n 103) 203, 260; Phipson (n 37) 710.
106 Phipson (n 37) 712. Some argue that this proves the necessity of considering real evidence.
107 Stephen (n 1) 15. Stephen states that the condition of material things, except documents, is usually proven by oral evidence, and therefore, there existed no reason to distinguish between oral and material evidence. Section 60 of the Act further captures this logic, making the category of real evidence redundant by allowing inspection of material objects in court.
108 Some scholars have used other examples, which I do not discuss here. However, they can be resolved in the same manner as the one discussed here.
109 Stephen A Saltzburg, “The Federal Rules of Evidence and the Quality of Practice in Federal Courts” (1978) 27(2) Cleveland State Law Review 173, 178.
110 John Henry Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law including the Statutes and Judicial Decisions of All Jurisdictions of the United States and Canada (Little, Brown, and Co 1923) 6.
111 Evidence Act, s 3.
112 Evidence Act, s 7.
113 ibid. The marks would be included as an “effect” of a relevant fact, namely the accused’s presence. Stephen discusses this directly in relation to R v Richardson: Stephen (n 1) 74–76, 94.
114 Oral evidence also includes evidence of opinion where such opinion may be declared relevant.
115 Concise definitions of “Materiality” and “Admissibility” are provided under Rule 3, Article 5 of John Henry Wigmore, Pocket Code of the Rules of Evidence in Trials at Law (Little, Brown 1910) 3, 4. “Materiality” may be defined as “direct relevance to the fact in issue” as per Colin Tapper, Cross and Tapper on Evidence (12th edn, OUP 2010) 73.
116 Wigmore (n 110) 6.
117 ibid 8.
118 ibid 155–156.
119 Tapper (n 115) 73.
120 Stephen (n 1) 166.
121 Evidence Act, ss 3 and 5.
122 Heydon (n 18) 29, 30. The same mistake is not carried forward by Yihan Goh, who analyses the application of the Act to the parole evidence rule and correctly maintains the fact-evidence distinction. Yihan Goh, “Contractual Interpretation in Indian Evidence Act Jurisdictions: Compatibility with Modern Contextual Approach” (2010) 13(1) Oxford University Commonwealth Law Journal 17.
123 Heydon (n 18) 67.
124 For a summary of this criticism of Stephen’s drafting, see Smith (n 5) 129–130.
125 ibid 128.
126 Kolsky (n 6) 636.
127 Stephen (n 12) ×ix. Stephen remarks on this prejudice.
I do not think the law can be in a less creditable condition than that of an enormous mass of isolated decisions, and statutes assuming unstated principles; cases and statutes alike being accessible only by elaborate indexes. I insist upon this because I am well aware of the prejudice which exists against all attempts to state the law simply, and of the rooted belief which exists in the minds of many lawyers that all general propositions of law must be misleading, and delusive, and that law books are useless except as indexes.