185th Report of the Law Commission of India: A Review

Unable to consider its 69th Report, the Central Government re-entrusted the task of reviewing the Indian Evidence Act, 1872 to the Law Commission. The reason, though not satisfactory in any circumstances, assigned was that there had been many developments upon the law of evidence. However, the earlier identified changes were not sought to be incorporated prior to the present reference. Thus the fate of the present review could certainly be anticipated even prior to any review exercise was undertaken.

Assigned the task to incorporate the change in the position of law, the Law Commission in the present report claims to have examined, in detail, the 69th report and other related reports of the Commission.

Significant Recommendations: An insight
There are certain recommendations made by the Commission which attain significance as they seek to update the Act after the change in position or appreciation of the principles, as affirmed by the Courts and authors. Some of them are recapitulated as under;

(A) The definition of 'court', as suggested in the 69th Report was rejected so as not to extend the provisions of the Act to revenue courts, tribunals and satisfied with the existing definition of the Court under the Act, the Commission made no recommendation on this aspect. This seems to be an appreciable step indeed as after all, if the Revenue Court and the Tribunals have been established with speedy trial and lack of procedural compliances as one of the guiding factors, they must be kept beyond the periphery of the Evidence Act as far the requirement to strictly follow the rules regarding admission of evidence is concerned.

(B) The recommendation regarding the definition of 'document' is commendable. The Commission observed that the definition already covers any type of document including electronic records after the amendment to the Act and incorporation of section 65A and 65B. Yet, to take into account the recent developments in the field of technology and law and more specifically, when document was more broadly defined under section 3(18) of the General Clauses Act, there was a need to amend the existing definition. Accepting a comment of the British author, the Commission has observed that while computer generated information should be treated similar to other records, its weight must depends on its reliability and parties may be needed to provide information as to the security of their computer system. Thus greater room is provided for admissibility of electronic evidence or evidence produced by other technological means.

(C) The Commission, having discussed the position of DNA evidence in both English and Australian laws, observed that there was no need to provide a specific mention to include DNA evidence under the Act specifically after the ruling of the Supreme Court in Kamta Devi v. Poshi Ram wherein DNA evidence was not held to be admissible when the law provided for an assumption. However the Commission did not preclude the possibility of leading in DNA evidence by the parties and thus observed that in case of refusal of a party to submit to the DNA test, no provision could be recommended and it was upon the Court to draw the inference against the refusing party as it decided.

(D) Seeking to resolve the controversy under section 10 of the Act as to admission of evidence in case of conspiracy, the Commission suggested important changes. A new section was proposed. The 69th Report concluded that there was a significant difference in this regard between the Indian position and the English law but because of the decision of Mirza Akbar vs. Emperor, which was subsequently affirmed by the Supreme Court in various cases. But in another judgment, namely, Bhagwan Swaroop v. State of Maharashtra, Subba Rao J as he then was, adhered to the wider meaning of sec. 10 and observed that there were five conditions for the applicability of sec. 10, of which one viz., item (iv), covered actions, declarations or writings by one co-conspirator “whether it was said, done or written before he entered the conspiracy or after he left it”. It was held that the words were “designedly used to give a wider scope”.

Now, the observation in the above decision of Subba Rao J. have been explained very recently in Saju vs. State of Kerala, wherein his observation was ruled out as opposed to the settled law. Thus to incorporate the settled law, the Commission recommended recommend replacing the words 'with reference to' in sec. 10 by the words 'in furtherance of' so as to leave no further scope of a contrary interpretation.

(E) As an attempt to settle the existing controversy as to section 13, the Commission proposed an Explanation to the section. This was done to resolve the controversy with regards the relevancy of
(i) judgments not inter-parties and
(ii) recitals in 'documents' not inter-parties. After a perusal of the authorities on this aspect, the Commission deemed it essential to introduce the explanation so as to resolve that,

(1) Judgments not inter parties were admissible under clause (a) of section 13 as 'transactions and,
(2) recitals in documents whether or not between the same parties or their privies, including recitals regarding boundaries of immovable property were relevant.

(F) Section 23, dealing with 'admissions in civil cases' was exhaustively analyzed and regard being had to the present position in the English law and the developments on the aspect, the section was proposed to be amended. Read with section 126, section 23 means to exclude those admissions which were agreed between the parties to be excluded as being used as evidence. This is said to be on the basis of public policy and the object here is to encourage parties to settle disputes peacefully and without resort to litigation. The commission agreed, and rightly so, that the following needed to be incorporated, (i) that such evidence could be admissible when the parties agreed to do so, (ii) that third parties (though being affected by the communications between the parties) will not be allowed to bring forth such communication as evidence and when, (iii) evidence as to the admission becomes necessary to ascertain if there was at all a settlement or to explain delay where a question of delay is in issue. Thus it can be found that the Commission meticulously incorporated the changes that have in position of law regarding admissibility of admissions in civil cases.

(G) In order to further the spirit of section 24, dealing with confessions caused by inducement, threat or promise, the commission recommended the inclusion of certain more grounds and thus observed that coercion, violence and torture should also be included as grounds for rejection of such confession.

(H) In the 69th Report, a provision namely section 26A was recommended wherein confessions made to senior police officer were made admissible subject to certain safeguards. Though the international situation wherein such confessions (made to police officials) are no longer inadmissible and the stigma that confession obtained during police custody was always not to be relied on, did no longer exist was analyzed, the Commission held that in the light of the earlier observations such a provision would be unconstitutional and opposed to the spirit of Article 14 and 21. This is a notable observation made by the Commission and the fact that it reconciled its earlier fallacy be recommending provisions like section 26A is far more appreciable.

As regards section 27, which deals with relevancy of information leading to discovery and is said to be one of the crucial provisions in the Act, there were several issues which were discussed by the Commission. The following conclusions were brought forth after an exhaustive evaluation of the authorities on this aspect;
(a) Section 27 was a proviso to section 26;

(b) Section 27 is an exception to section 25 also;

(c) The word 'or' should be substituted in place of comma in between the words, “from a person accused of any offence”, and the words in the custody of a police officer so as to make section 27 specifically an exception to both section 25 and 26.

(d) The section should be rephrased so as to exclude the statements obtained by inducement, threat etc. as provided under section 24.

(I) As far as dying declaration (under section 32(1) was concerned, relying on the judgment of the Supreme Court in State of U.P. v. Ramesh Prasad Misra, the Commission suggested that statement as to the cause of death (motive) should be made admissible.

(J) An important change was recommended into the definition of experts as under section 45. The suggestion is novel as it seeks to further the spirit of the provision of reliance on the evidence of person experts in their fields. Thus experts dealing with footprints, palm impressions, type writings, foreign law, trade, inventory of persons or animals, etc. have been added and thus greater room has been provided to the courts to rely on expert evidence.

(K) As an further advancement to the protection of women at working places, section 53A was proposed to be incorporated.

(L) The Commission observed that there was an anomaly between section 63 and clauses (b) to (g) of section 65 as the said clauses did not fall within the definition of secondary evidence as proposed in section 63 but they were made admissible as secondary evidence under section 65. Thus, to rectify the situation, the Commission proposed reconstruction of section 63 by redefining it.

(M) The Commission recommended section 90 to be rephrased and be introduced along with section 90A wherein new rule was laid as regarding documents more than 20 years old and a different rule for other documents. For documents more than 20 years old, it allowed court to presume the contents and the signatures, which were in a person's handwriting and appeared so to be true. Thus disputes wherein the witness to the documents or the testators could not be located on account of death or otherwise, presumption could be made by the Court and the trial proceeded.

(N) The Commission observed that certain well settled principles in the Act, such as the doctrine of res gestae, estoppel, res judicata etc. as enunciated in the Act were very well playing the part and thus need not be interfered with

(O) The Commission, while at one stage it doubted the accuracy of DNA tests, permitted DNA tests to formally appear in the Indian Evidence Act. In a controversial recommendation, it sought to amend section 112 of the Act wherein presumption as to paternity of a child was dealt with and introduced DNA test when it was specifically refused by the Supreme Court in Kamta Devi v. Poshi Ram.

Watchdog exercise

Some of the sections of the mammoth report may be cited here to state that the commission has really performed the role of a watchdog of the Indian legal fraternity. Since beginning the task of the Commission has been to update the laws with the changing social order and the advancements made in the field. The role of the Commission has also been to pave the way to incorporate judicial pronouncements in the statute books so as to clarify the law for the future times to come. The present task seems to have justified the same. The Commission made an in-depth study of all the sections of the Act and suggested what was needed to be updated and what to be deleted in the light of the developments since the Act of 1872 and also the recommendations made in the 69th Report. The mammoth task undertaken by the Commission and Anomalies still present?

The role of the Commission has been meticulous indeed but there still remain certain anomalies to be countered and calling for a further review. As for instance, relying on the authority of Phipson[30], the Commission observed that the result of polygraph or lie detector test should not be made admissible while no reason for the same was stated. However it is to be noted here that the Commission made no evaluation of any other authority to come to this conclusion for the two tests.

Further the Commission sought to contradict itself when it agreed that the definition of the word 'evidence' under the Act was not exhaustive but simultaneously it did not make any recommendation for that matter. The reason for such submission is on another count. It has been found that wherever there has been a judgment of the apex Court, the Commission has merely conformed to the view. It is indeed the need to respect the observation made by the Hon'ble Court. Nevertheless, a mere conformist approach in this regard has taken away a significant area from the Commission to venture upon. The Commission, on any aspect, has not dwelled into the fact whether the opinion of the Court was justified in the circumstances or it was not. The possibility of adopting a better position was not explored in any case. Seeing the nature of the task entrusted to the Commission, it can only be said that the Commission should have avoided falling in this trap of complacency and should have adopted an independent opinion where deemed relevant.

The 185th Report: A real review?

Both, the approach and the methodology, followed by the Commission are liable to be interpreted as if it was not a review of the Evidence Act but a review of the feasibility if the 69th Report could be incorporated today. Conformity to the 69th Report is what seems to be the general order of the present Report. Majority of the recommendations of the 69th Report have been mutatis mutandis been accepted in the present report. While some modifications have been made and in some place even total disapproval of the earlier recommendations, most of them have been in the light of the contrary decisions of the Supreme Court to this regard.

The commission, upon a bare perusal of sections 11 and 12, 14 to 20 and having reference to some judgments of the apex court, differed in many instances from the 69th Report and proposed minor change in the same. There did not seem much effort on the part of the Commission to look into the position of law as enunciated there in the sections. Much, therefore, cannot be said for the same. Section 21 was unnecessarily clarified when in fact the law was already settled.
The Commission distinguished its views from those in the 69th Report as far as section 28 to 30 are concerned and a quiet different approach was followed. In fact, the Commission even criticized the 69th Report as having adopted a mid-way path approach in reconciling one of the sections. However the Commission barely approved the recommendations on sections 33 to 35. Thus it could instead be stated that the Law Commission has merely updated the 69th Report in the present task.

Conclusion
While sec. 27 requires to be amended, only a person of the eminence of Sir James Stephen can make an attempt. When such is the nature of the exercise, it would absolutely require merit and meticulousness, combined with the spirit and ability for a successful effort. Indeed, the task of reviewing the Indian Evidence Act, 1872 was a mammoth one. Nevertheless, the Law Commission has made an almost impossible task a reality not once but twice. It is indeed awful that its recommendations have not been incorporated till date in the Act, carving for reform. What is required is an equally spirited effort on the part of the Indian legislature.

The Commission has made and suggested vital changes in the Act and has recommended them backed with reason and authorities. The coverage of the British, American and Canadian jurisdiction in search of appropriate provisions and a comparative analysis gives the recommendations a tremendous firmness and force. Though the approach is primarily doctrinal and lacks a practical approach on several counts as far the taking into account the suggestions of the Malimath Committee and other Committees related bodies was concerned, no other approach could have found justification in light of the gargantuan task for review.

The Commission may be criticized for having based its premises, that is to say, began from where the 69th Report left, it may be countered that a re-review of position prior to the 69th Report, unless necessarily significant, would have been futile for the earlier report was also commendable at its time. It was only that it having taken the Indian Parliament almost 30 years for implementing (though the earlier report has not been incorporated entirely yet), was it sent for a re-review.
In all, the Commission has came out with an appreciable task and needs to be immediately implanted in order to render futile trials, which might be faced with obsolete yet existing provisions under the Act.

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