The complex legal system in India is shaped by the law, culture and the great colonial history, particularly in the domain of evidence law. Central to this is the Mohammedan Law of Evidence and its connection to the Indian Evidence Act. The connection between the Mohammedan Law of Evidence and the Indian Evidence Act helps us to see how the legal system has developed over time in colonial and post-colonial India, balancing traditional practices, religious beliefs and modern legal ideas.

The Mohammedan Law of Evidence was based on Islamic jurisprudence. It has traditionally governed how evidence and testimony are handled within the Muslim community. Religious beliefs, cultural practices and societal norms influenced it[1]. However, during the British colonial rule in India, successful attempts were made to introduce a unified legal system and to achieve this, the Indian Evidence Act was introduced in 1872. This aimed to standardize laws relating to evidence across diverse communities and regions of India.

The codification of the Indian Evidence Act marked a pivotal moment in Indian legal history, as it aimed to ensure uniformity, justice and fairness across the diverse communities and regions in India. However, the introduction of the Evidence Act also posed challenges to the Mohammedan Law of Evidence, which worked differently prior to the codification. This held importance for individuals living in Muslim-majority regions or within the Indian subcontinent due to the influence of the Mohammedan Law of Evidence.

The Hindu legal system was quite detailed, while the Muslim legal system didn't rely on superstitious tests like trial by ordeal. Both these ancient systems were quite modern in allowing hearsay evidence, which is evidence based on what someone heard rather than what they saw. The British legal system was gradually introduced in India through various laws and making necessary changes. The current Evidence Act in India reflects a good balance between traditions and modern needs, making it adaptable to new challenges.[2]

History
By the end of the Slave Dynasty established by Qutb ud-Din Aibak, the Muslim rulers had well-established themselves in India. The Islamic idea of Justice was also well-established in the country by then. The Delhi Sultans were rigid observers of the law because they believed that no amount of worship could equal the acts of justice. This notion is very similar to the Hindu idea of Dharma.

But what surprises one is that with such similar lofty motives, there should have developed so much hostility between Hindus and Muslims in India instead of a fusion as took place is England between the Normans and Saxons. Perhaps it is due to emphasizing the differences instead of concentrating on the similarities and enlarging the areas of coincidence.[3]

The law was only applicable to the Muslims. Non-Muslims, especially the Hindus, were not subjected to Islamic law. Their affairs were regulated according to the principles of their own religion, especially in matters of inheritance, marriage, etc., that is, in matters which we would now refer to as subject to personal laws. But the Islamic criminal law applies to all equally. [4]

Evidence is based on testimony, and testimony may be either direct to the point at issue or to collateral circumstances from which the point at issue may be reasonably inferred. Mohammedan Law of Evidence admits only direct testimony. In such systems, judges or juries are denied the right to draw inferences or interpretations and must take witnesses' assertions as conclusive proof.

For a witness to speak about a fact, he should have seen or experienced it. This is required by the Mohammedan law, except in a few specified instances in which a witness is allowed to speak to a fact because he has been credibly informed of it. Even in these cases, they have to talk about the fact in the same way as if they had seen it themselves. This is made mandatory because the witness's own belief is an essential element in his testimony.[5]

According to the Hanafi law, evidence is, {a) Towatur or fully corroborating evidence; {b) Ehad or testimony of a single individual; and (c) Iqrar, meaning admissions or confessions. Such evidence could be adduced through witnesses or documents, and reliance could also be placed on circumstantial evidence. Trial by ordeal was unknown to strict Islamic law. Hearsay evidence was not altogether excluded. In the case of circumstantial evidence, it was known as Karinah, and the court relied upon it if it was of a conclusive nature.

In a civil case, a decree could be passed on an unconditional admission, and in a criminal case, a confession was admissible as evidence. But a confession of an accused was not conclusive against a co-accused. Even against the confessing accused, courts always looked for further corroborating evidence. In fact, Muslim jurists attached great importance to corroboration. If a confession was induced by fear, it was inadmissible.[6]

All believers were competent witnesses, and it was assumed that the believers in the Koran were always truthful and that their evidence would be preferred to that of a non-Muslim. But there have been cases where the statement of a non-Muslim was accepted as sufficient for the conviction of a Muslim accused even when the witness was a solitary witness. It was said that in the trial relating to the murder of Sultana Razia, the extra-judicial confession made by the Muslim accused in the hearing of a Hindu shopkeeper was accepted as admissible. Oaths were administered according to the religion of the witness. Women were competent witnesses, but one woman had to be corroborated by another.

Close relatives like father, son, and wife were not competent witnesses except to prove the relationship. The opinions of experts were relevant. The evidence of convicted persons and gamblers was assumed to be unreliable. While documentary evidence was relevant, unlike modern law, oral evidence was preferred to documentary evidence. The court was entitled to take judicial notice of well-known facts and evidence that could be taken on commission in the presence of the Kazi of that place. The principles of estoppel and res-judicata were also known to Muslim law.[7]

During British rule, Warren Hastings established Civil and Criminal courts in 1772, with Collectors overseeing the Civil court and supervising the decisions of the Kazi or Mufti in the Criminal Court. Criminal Courts were established at the same time, and the decision of the Kazi or Mufti was made subject to the supervision of the Collector. The chief Courts were the Diwani Sadr Adilat, composed of the Governor-General and Council for Civil Causes, and the Nizaimat Sadr Adilat for criminal cases.

The latter was presided over by a Darogah Adilat, appointed by the Naizim of Bengal, but superintended by the Governor-General and Council, in order to check any violations of natural justice through the advice of the Mohammedan law officers, based on the provisions of their law as to evidence and retaliation. Capital sentences at this stage were sent to the Nazim for his fiat. Under this " Plan ", Mohammedans and Hindus were given the benefit of their own laws in suits regarding inheritance, marriage, caste, and other religious usages and institutions.[8]

Later, the Governor-General and Council were empowered to legislate for Fort William and its dependencies in Bengal, and under this authority, after several intermediate regulations, Impey's Code was promulgated in 1781. This separated the roles of civil judges from collectors but kept the same laws in place. The highest court, the Sadr Diwani Adalat, became a Court of Record under the law. In 1782, the Governor-General and Council, who had handed over the superintendence of this Court to a single judge,' had to resume it under orders from the Court of Direct. In the meantime, by Regulations of 1780 and 1781, the " Law of the Koran " was enacted to administer to Mohammedans in suits relating to "inheritance and succession, marriage and caste, and other religious usages or institutions." This was repealed by s. 15 of Reg. IV. Of the Cornwallis Code of 1793.[9]

Judicial Administration Under The East Indian Company

In 1726, special courts were set up in the three Presidencies towns to protect English people and their property. This naturally raised the question of the jurisdiction of those courts over the Indians. It was provided that the courts were not to exercise jurisdiction over Indians unless they submitted to their jurisdiction. Outside these towns, Islamic law was used, but it wasn't very organized during this chaotic time. After the Battle of Plassey in 1757, the British East India Company had to restore order in Bengal.

The Company, therefore, established civil courts outside Calcutta. These courts were presided over by Collectors of Revenue, who were the English servants of the Company. If someone disagreed with their decision, they could appeal to the Sadr Diwani Adalat, the Governor-in-Council. Personal matters like inheritance, marriage, and religious customs for both Hindus and Muslims were decided by English judges based on advice from experts. In other cases, the Collectors had to make decisions based on fairness and good conscience unless the Governor-in-Council gave them specific instructions.[10]

The Supreme Court of Judicature was set up in Calcutta in 1773 and refused to recognize the orders passed by the mufassil courts presided over by the Company. The Supreme Court, led by an English judge named Sir Elijah Impey, only had authority over people in Calcutta, not those outside the city. Similar arrangements were made in Madras in 1801 and Bombay in 1823, creating a dual court system. There was thus a dual system of courts. Further, there was also a dual system of law.

The area of personal law in the Presidency towns and the mufassil varied. Also, outside these towns in mufassil courts, there was no definite law relating to evidence. Hence, Mufassil courts had unfettered power concerning evidence laws. This difference in laws resulted in chaos in the Mufassil courts. In rural areas, the law was based on justice, fairness, and good conscience, with some rules set by regulations.

The legal systems differed not only between cities and rural areas but also among the three main Presidencies. Because the phrase 'justice, equity and good conscience' was also too elastic, it was felt that the dual system should soon be put an end to.[11] There being no fixed and definite rules of evidence, the administration of the law of evidence was far from being satisfactory. This created a dire necessity for the codification of laws related to evidence.

In 1833, the First Law Commission, with Lord Macaulay as its chairman, started functioning, and various enactments were passed. As regards the law of evidence, the first Act of Governor-General-in-Council was Act 10 of 1835. It applied to all courts in India, whether in the Presidency towns or mufassil. It provided that Acts passed by the Governor-General-in-Council might be proved by the production of the concerned gazette. Act 19 of 1837 removed the incompetency of a witness arising from a conviction. Act 5 of 1840 enabled Hindus and Muslims to affirm instead of taking an oath. It also provided that a mere irregularity in administering the oath or making an affirmation would have no effect on the legal proceedings. This Act was replaced by the present Oaths Act, (10 of 1873).

The next Act 9 of 1840 provided that if a witness was objected to on the ground that the judgment would be evidence for or against him, that is, on the ground he was interested in the result, the witness may still be examined. The judgment could not be relied upon for or against him.

The position was clarified further by Act 7 of 1844 by providing that a person was not rendered incompetent as a witness on account of his interest or by reason of his conviction for a crime. But this did not apply to parties who were incompetent as witnesses. The incompetency of parties as witnesses was removed by Act 15 of 1852, except in criminal proceedings for adultery or breach of promise of marriage.[12]

In 1855, Act 2 of 1855, an Act for the further improvement of the law of evidence, was passed. It applied to all courts in British India. Sections 2 to 6 provide judicial notice of most of the matters in section 57 of the present Act. It covered a lot of things, like how courts could notice certain facts without needing proof and how they could use government documents and maps as evidence, foreign codes and reports were admissible as evidence, Children under 7 and people who were not mentally well couldn't be witnesses. It allowed affirmations instead of oaths for children and those with uncertain religious beliefs. It also said that parties, including spouses, could testify against each other in civil cases.[13]

Privilege with respect to affairs of state, with respect to documents which cannot be compelled to be produced and with respect to confidential correspondence with a legal adviser, was provided. Advocates could not be compelled to disclose professional communications without their client's consent. Individuals present in court must provide testimony if summoned, but the number of witnesses required wasn't specified except in cases of treason. Corroboration was necessary for accomplice-witness testimony.

Dying declaration, cross-examination of unfriendly witnesses, and corroboration through prior statements were also discussed in this Act. (section 34). Copies by copying -machines were deemed to be correct, and secondary evidence was permitted in certain cases. Under section 37, documents which did not require attestation could be proved, even though attested, as if they were unattested. Admission of execution of a document was deemed to be prima facie proof under section 38.

Entries in books in the course of business were admissible against the person making them and for identifying the payer or receiver under section 39. Matters not provided for by this Act were to be decided according to Islamic law so that the uncertain mixture of English and Muslim laws continued to prevail outside the Presidency towns, leaving several matters as nebulous as before. Act 10 of 1855, another Act of the same year, provided that if a person who was summoned as a witness did not attend or produce the document which he was asked to produce, then he would be liable for damages to the party who lost his case because of the omission.[14]

After the British Crown took over the direct government of India as a result of the Mutiny, three more Acts relating to evidence were passed before the enactment of the present Act. They are Act 8 of 1859, Act 25 of 1861 and Act 15 of 1869. The first set of rules was about how witnesses were called and examined in court. The second set dealt with confessions to the police, how accused individuals were questioned, and other investigation-related matters.

The last set helped in getting prisoners to appear in court as witnesses. In simpler terms, before these rules, courts outside major cities didn't have clear guidelines on how evidence should be handled, except for a couple of older acts. They mostly followed Islamic rules regarding evidence.[15]

The Indian Evidence Act Of 1872

The Third Law Commission of India prepared a draft of an Evidence Act, which was introduced by the law member Sir Henry Maine. It was known as the Maine Commission, but it was rejected as unsuited to Indian conditions. It was criticized by Mr. Whitley Stokes in his Anglo-Indian Codes for being incomplete, ill-arranged, and its acquaintance with the law of England, which could scarcely be expected from them.

While Mr. Stokes criticizes the draft for its incompleteness and poor arrangement, Professor Alan Gledhill suggests that the draft aimed to relax English rules and priorities, ensuring that courts were well-informed, rather in India to ensure that the Court was sufficiently informed than exclude material which might prejudice the Court; they proposed to admit anything bearing on the issue unless specifically excluded, and they relaxed the English rules of exclusion, particularly with regard to hearsay.[16]

So, in light of this whole episode, the British government took the first step in this respect in the year 1835, bypassing the act of 1835. A total number of eleven enactments were passed dealing with the law of evidence, but none passed the adequacy test. In 1868, a commission was formed to frame a draft code of the law of evidence. 39 sections were included in this draft code.

The Commissioners' draft, however, found no favor in India; it was essential to have rules that excluded matters only remotely bearing on the points for determination, ensured judgment of the cause rather than the litigant, and curtailed the duration and expense of trials. There is, thus, a contradiction between Mr. Whitley Stokes and Professor Alan Gledhill as to the content of the draft code. In the fifth report on the draft code of evidence in 1868, the commissioners admitted that most of the English laws were not suitable for Indian society. Be that as it may, it fell to Sir James Fitzjames Stephen to bring about a brilliant compromise in the present Evidence Act, 1 of 1872.[17]

In the year 1870, a new bill containing 163 sections in a form different from the present Evidence Act of 1872 was prepared by Fitzjames Stephen. Fitzjames Stephen ultimately passed the Indian Evidence Act of 1872. When Pakistan and India gained independence on the 14th and 15th of August 1947, respectively, the Act continued to be in force throughout the Republic of Pakistan and India except for the state of Jammu and Kashmir. After the Independence of Bangladesh in 1971, the Act continued to be in force in Bangladesh.[18]

The Stephen Commission was established in 1871 to write the Law of Evidence. On March 31, 1871, Stephen delivered the Council a draft of the Bill, which was then forwarded to the local governments, High Courts, and Advocates for their review. After receiving their feedback, the Bill was submitted to the Select Committee, which made the required changes before presenting it to the Council, which enacted it as The Indian Evidence Act of 1872. (Act No. 1 of 1872).

The Act has been amended multiple times since it was enacted. The Indian Evidence Act of 1872 is based on English evidence law, but it includes several provisions adapted to the Indian realities and needs. Even though flaws in the Act have been pointed out from time to time, the Act's drafting is an example of the best draftsmanship skill. It is very important to note that the Law of Evidence, which was enacted in 1872, continues to be applicable with the least amendments possible over more than 140 years.[19]

The Need For Evidence Law

Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues, so without evidence, there will be no possibility to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not a difficult task to obtain trust by violating the basic structure of law, but in the course of protecting those rights, evidence and the law come into the picture.

Evidence Law tells the basic principles and rules regarding collection. So, the process of evidencing any facts or proof should be governed by a well-established law to achieve speedy and fair justice. The law of evidence is not just a fundamental principle governing the process of proof. Rather, it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings.

While it is, the moral dimension is a special asset in criminal trials as it endeavors to protect the innocent and highlight the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth from being disclosed in the public domain to protect the public interest.[20]

Conclusion
The development of the Law of Evidence in India spans centuries, originating from the Early Vedic civilizations and continuing through the Middle Ages under Muslim rule. However, it was formalized into a comprehensive code by Sir James Fitzjames during the British colonial era in 1872. Although formally, this continuity is a facade, the goals of its creators and sustainers have been relatively constant and integral.

However, colonial rule added a new component to the equation. Although the British, in some ways, simply replaced the Mughals, in many other ways, their manipulation and restructuring of society penetrated deeper than Mughal rule ever did or ever needed to penetrate. The establishment of a modern state in South Asia gave a new role to Islamic law and opened it to new and disruptive influences. The operation of colonial courts transformed customary laws into statutory law. During the British colonial period, the Evidence law comprised forward-thinking regulations, drawing influence from the English system and often even more progressive than the original.

End Notes:

1. Kugle, S. A. (2001). Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia. Modern Asian Studies, 35(2), 257–313. http://www.jstor.org/stable/313119
2. Sarathi, V. P. (1972). HISTORICAL BACKGROUND OF THE INDIAN EVIDENCE ACT, 1872. Journal of the Indian Law Institute, 1–25. http://www.jstor.org/stable/43950171
3. Ibid
4. ibid
5. N. B. E. Baillie, (1870), The Mohammedan Law of Evidence, and Its Influence on the Administration of Justice in India, The Journal of the Royal Asiatic Society of Great Britain and Ireland, 1870, New Series, Vol. 4, No. 2, 480-485. https://www.jstor.org/stable/25207684
6. Id2
7. Id2
8. West, R. (1900). Mohammedan Law in India: Its Origin and Growth. Journal of the Society of Comparative Legislation, 2(1), 27–44. http://www.jstor.org/stable/752116
9. Ibid
10. Id2
11. Id 2
12. Id 2
13. Id 1
14. Ilbert, C. (1896). Application of European Law to Natives of India. Journal of the Society of Comparative Legislation, 1, 212–226. http://www.jstor.org/stable/751758
15. Ibid
16. Advocate Khoj, Report on the History of the Law Commision of India, https://www.advocatekhoj.com/library/lawreports/reformofjudicial/3.php?Title=&STitle=First%20Law%20Commission, April 15, 2024
17. Nokes, G. D. (1956). Codification of the Law of Evidence in Common Law Jurisdictions. The International and Comparative Law Quarterly, 5(3), 347–363. http://www.jstor.org/stable/755704
18. Indian Evidence Act, 1872: an exhaustive overview, Ipleaders, https://blog.ipleaders.in/indian-evidence-act-1872-an-exhaustive-overview/#Modern_period, April 15.
19. Roach, J. (1956). James Fitzjames Stephen (1829-94). Journal of the Royal Asiatic Society of Great Britain and Ireland, 1/2, 1–16. http://www.jstor.org/stable/25222784
20. Historical Background Of Evidence Law In India: With Special Reference To The Indian Evidence Act, 1872, Legal Service India, https://legalserviceindia.com/legal/article-7229-historical-background-of-evidence-law-in-india-with-special-reference-to-the-indian-evidence-act-1872.html, April 15.