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The article is written by Vishruti Chauhan, from Symbiosis Law School, Hyderabad. The present article focuses on a broad aspect of changes that were recommended and the issues pertaining to the 185th Law Commission Report. The article is also going to focus on changes which were quite important and how they changed the facet of Indian Evidence Act.  

Introduction

In a democratic setup, it is very necessary that there are checks and balances on every administration. Even the rule of law in the country provides for check and balances between the three pillars of the democracy- judiciary, executive and legislative. It was along the lines of this principle that the Law Commission was formed. The Law Commission was formed with an intention that the laws that are being formulated or those which are already formulated are just and fair. It is to check the implementation of these laws that the Law Commission is set up. It is a non-statutory body that is constituted by the Government of India and comprises legal experts to promote justice in society. 

The law commission reports are a very important part of the legal fraternity as it provides for check and balances on the laws and whether the implementation of the laws is in consonance with the objective of such legislation. The recommendations that are made by the Commission are also accepted by the Supreme Court in many cases. According to Article 372 of the Indian Constitution, it is required that some authority or legislation should check, repeal, modify, revise or amend the laws and assess whether it is still prevalent for the current situation and needs to be in existence. The Law Commission of India works in coordination with the Ministry of law and Justice to ensure proper analyses and implementation of the laws in the country establishing justice and peace.            

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Background

The Law Commission 185th Report, is a review of the Indian Evidence Act, 1872, herein referred to as the Act, in the year 2003. It examined various provisions of the Act and suggested changes on the basis that there has been a ‘sea-change in human rights jurisprudence’. The Report differs from the 69th Commission Report on Indian Evidence Act, 1872 in many ways. The Central Government felt that there have been many changes in the jurisprudential structure of evidence law and thus there was a need for changes to be made in certain provisions of the Act. The Commission also took into consideration various interpretations and developments in the USA, New Zealand, the UK and Australia.        

Important recommendations

The 185th law commission is divided into four parts and has given recommendations for different sections within these four parts. Among the recommendations which have been mentioned, in this article, only the major changes that were suggested are going to be discussed-

Definitions

The definition of ‘Court’ was suggested to be changed in the 69th law commission report. Under Section 3 of the said Act, the Court includes all judges and magistrates who are legally authorised to take evidence and the exceptions to this are arbitrators. There is a word ‘all persons’ in the definition which refers to all the persons who are authorised to take such legal evidence. However, that does not mean that every quasi-judicial authority is allowed to be included in it. It was held in various judgments by the courts that the same does not apply to Income-Tax Authority or proceedings under the Public Servants (Inquiries) Act, 1850. 

To remove such uncertainty, the 69th Report suggested changing the definition to- “Courts meaning a civil, criminal, revenue court or tribunal Courts under the Central, Provincial or State Act, again with an exception in case of arbitrators”. This recommendation was rejected on the aspect that the revenue courts which have been established in the country are mostly governed by the local laws and confer limited powers in many aspects. This could create a burden and misuse of the power of Evidence Act where proper power of the Act is not with the Court to exercise.

The 69th Report had further suggested changing the definition of ‘fact’ in respect of removing the word ‘and includes’ from the definition. The 185th Report differed and suggested removing the word ‘means and’ instead. The Report has given various examples where the definition of ‘fact’ has been provided and it concludes that there is no need for including the word ‘mean’ for such definition and it should only define fact with the use of the word ‘include’.

Furthermore, the Report has been in consonance with the 69th Report on suggestions made with respect to the definition of ‘relevant’. The report agreed that there was no need to include proof in the definition and in relation to fact in issue, there was no amendment needed except the removal of the words ‘and includes’.           

Document

The definition of ‘Document’ has been defined as any matter which can be expressed or described by the use of letters, figures, marks which are used for the purpose of recording that matter. Through various judgments, the definition has included in itself the meaning of ‘electronic record’ as well. The said Commission has discussed various foreign and Indian judgments such as Rollo vs. H.M. Advocate, R vs. Spiby, Derby vs. Weldon,  Ziyauddin v. Brijmohan etc and has made a recommendation of substituting the definition with- “Document means any substance where the matter is either written, expressed, described, inscribed or which is recorded by letters, figures or any other means which is intended to be used or may be used in future for recording the matter”. This definition includes anything and it does not matter what is meant by figures, marks, letters in any form whether decoded or retrieved.  

Further, under Section 90A of the Act, it was the intention to cover cases of certified copies of the original documents which were registered. Such copies ought to be executed within 20 years from the date of production of certified copies in the Court. Through the recommendation, the report suggested that if the document is more than 20 years old, it was deemed to be true and original in the eyes of law. 

Furthermore, Section 65A and Section 65B were suggested to be included which made a special provision for the electronic record or any information by the electronic record contained in the paper, stored, copied or recorded to be assigned and understood as a ‘document’.      

DNA

Section 9 of the Act states the relevancy of facts to establish the identity of a person or time or place or what happened at the scene. The Report specifically lays down the importance of DNA under this section. DNA has been used in the identification of persons through scientific and forensic methods. It has been the most crucial element of forensic science since its inclusion in the law as a piece of evidence. DNA samples are used to prove guilt, identify a person, paternity test and studying disorders or storing data of population in the country. Thus, DNA is a prominent piece of evidence in most cases. The report also states that there is no need for a special provision in case a person refuses to go through blood or DNA tests and it will entirely depend upon the conduct of the person which courts can rely upon.

Section 112 was also suggested to include DNA tests. The report analysed whether any exceptions should be introduced in the Section such as impotence to prove that a person is not father as a perk blood test or DNA tests. The Section deals with conclusive proof in such cases and defines non-access as a sole exception. It was further analysed that in case of a match in DNA a much more emphasis lies on the data available because if the DNA data is less then a matching DNA will be considered as weak evidence. Further, the report concluded that three exceptions should be included in the Section- impotency, blood test and DNA test.         

Section 23-27 of the Indian Evidence Act, 1872

Section 23 of the Act deals with the admission in civil cases and states that there is no need for the admission to be given and it is not relevant if there has been an express condition to do the same or if the Court is satisfied that there was an agreement between the parties for the same. The 69th Report had recommended that instead of the Explanation that has been given in the section, the following words should be inserted in the section itself- “upon an express condition that evidence of it is not to be given” and “or if it is made for the purposes of or in the course of a settlement of compromise of a disputed claim”. In the present report, this was taken into consideration along with other few amendments. Furthermore, the Commission recommended insertion of a new Section 132A which provided that a person may be required to disclose information which is contained in the publication in certain circumstances. 

The  69th Report did not give recommendation for change under Section 24, however, the 185th Commission suggested to add more words like ‘coercion, violence or torture’. This Section refers to the irrelevancy of a confession in case it is done by inducement, threat or promise and thus the commission suggested the word to be included along with it. 

The insertion of Section 26A was suggested in the 69th Report which will make all the confessions made to senior police officers admissible except in certain circumstances. The said report has considered various interpretations for the same. There are many countries like the UK and the USA where confession to a senior police officer has been made admissible in the court of law. 

Moreover, the report also analysed the relation between Article 20(3) which states the principle of self-incrimination and has analysed various judgments as well such as DK Basu and Maneka Gandhi. There are certain safeguards as well provided in the 69th Report in case a confession is being made to the senior police officer such as the counsel of the accused should be present and all safeguards under Section 164 Cr.P.C. should also be followed. The 185th report also analysed the concept of custodial deaths and police brutality through various cases. The different violations that have been through police brutality were analysed and the Report submitted that the recommendation of insertion of such section cannot be done. The 185th Report said that the intention of the 69th Report is understandable but the ground reality is far more threatening and India doesn’t happen to be at a phase where such a power can be granted to police where there are hundreds of cases of police brutality already in courts. The report further added that it will be violative of Article 14 and Article 21 and various other judgments of the Supreme Court which have provided for various safeguards and guidelines for police officers. 

Section 26 states that no confession which is made by a person in custody of a police officer shall be proved until it is made in the immediate presence of a Magistrate. The 69th Report has made a recommendation of adding “under Section 164 of CrPC, 1973”. The present report suggested adding “in accordance with Ch. XII of CrPC, 1973”. 

Section 27 states that the information which is received from the accused may be proved when any fact is discovered during investigation or information received during confession related directly to the fact given by the accused. The Report has started the analyses with a dilemma whether the proviso that has been provided is only applicable to section 27 or from section 24 to section 26 as well. By considering various case laws like Chinnaswamy’s Case, Sanjay v. State of Delhi and Aghnoo Nagesia v. State the report suggested that Section 27 is a proviso not only to Section 26 but also to Section 25. After analysing judgments from the USA, Canada and the UK, the report suggested that the words “Notwithstanding anything to the contrary contained in Sections 24, 25 and 26” be placed at the beginning of Section 27. The words ‘such’ and ‘distinctively’ should be dropped. The report further made the suggestion that facts discovered from statements that have been made under Section 25 and 26 will be admissible. Further, the word ‘or’ to be substituted between ‘from a person accused of any offence’ and the words in the custody of a police officer.    

Section 32

Section 32 deals with the relevancy of statements which is made by a person who cannot be called as a witness. This includes statements if it relates to death, opinion as to public right, made in the course of business etc. The 69th Report recommended for changes in clause 1,2,3 and 7 of Section 32. The opening part of the section was recommended to be amended and include the essence of Section 33 as well. Further, in the case of sub-clause 1 which deals with dying-declaration. After analysing cases like Tehal Singh v State of Punjab and UP v Ramesh Prasad Misra, the report recommended that there should be no change in the existing laws and thus differed with the 69th Report.                                   

Expert Opinion

The 185th report also suggested a wider interpretation of ‘expert opinion’ as has been done in the 69th Report. The expertise on foreign law has been emphasized and the report has wholeheartedly accepted such suggestions in their recommendation as well. Further, expertise in other various fields such as inventory, trade and writing were also included. 

Section 63

It refers to secondary evidence and includes certified copies, forms mechanical process, copies made from original, oral accounts of the content of the document and counterparts of the document as against a party who executed them. The controversy that arose due to various judgments was because of the section being treated exhaustively due to the wordings ‘means and include’. There were disagreements regarding sub-clauses as well. The 185th Report considered that in clause 3, the words ‘made from or compared’ should be substituted to ‘made from and compared’. The report recommended the deletion of the word ‘means and’ from the section and also suggested changing the word from ‘read’ to ‘seen’ in clause (5).       

Section 53A

Furthermore, for the safety of women at workplace Section 53A of the Act was proposed to be included. The Section said that the character of women in the issue of consent or her previous sexual relationships will not be relevant.  

Conclusion

There are various other changes and amendments which have been suggested by the Commission Report. It is crucial to understand that the objective of the law commission is to build upon a strong advisory structure by analysing various statutes and analysing foreign judgments as well. 

The 185th Law Commission Report was very precise and yet very explanatory in its own way. The commission has been able to analyse each section and provisions of the Act with brilliant jurisprudence and by referring to multiple case laws. There are certain provisions which have been incorporated in the Act after the recommendation but they are minimal in number. In a practical sense, the government has not been able to include every recommendation given by the Commission. The 69th Report was made way back and thus there was a desperate need for new provisions especially since the technology took a drastic route after the 90s. Thus, the technological evidence had to be incorporated in the Act. The Commission had studied and refined the same in a manner that it is in compliance with the present situation.   

References

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