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The Need And Scope Of Overhauling The Indian Evidence Act,1872

India's evidence law is a crucial component of the justice system in India. It is an essential tool for the legal system since it makes sure that the proper evidence is provided in court to support or refute a claim. However, it is also true that in order to keep up with modern times, obsolete laws in Indian evidence law must be modified.

Following are the laws that need overhauling:

Section 45
The admissibility of opinion evidence is covered under Section 45 [1]of the Indian Evidence Act of 1872. Under certain restrictions, this clause permits the expert's testimony to be submitted as evidence in court. However, this section has several shortcomings that have been found throughout time.

The following are some of Section 45's primary drawbacks:
  1. Lack of clarity in the definition of an expert: Section 45 leaves open the question of who qualifies as an expert. Because of this, it is unclear who qualifies to provide expert testimony and what requirements they must meet. In reality, judges often have to determine someone's expertise in a certain sector on their own.
  2. The reliability of expert evidence is not clearly defined by Section 45, which does not provide any definitions of what constitutes reliable expert testimony. The admissibility and weight of expert views may therefore be contested by experts as well as by experts and the court.
  3. The possibility of bias and manipulation: Section 45 does not specify how to avoid either of these issues when presenting expert testimony. There have been instances when experts' recommendations have been swayed by their own prejudices or by the needs of their customers.
  4. Expert testimony is only permitted in certain kinds of cases, such as those requiring scientific, technical, or specialized expertise, according to Section 45. This implies that the court may not be able to allow expert testimony in situations when it could be useful, such as in instances involving intricate financial transactions or medical misconduct.
  5. Inadequate procedures for cross-examination: Section 45 doesn't specify how to question expert witnesses during cross-examination. This could result in insufficient examination of the validity and dependability of expert judgments.
Some significant changes that can be done to fix these problems are listed below:
  • Clarification of qualifications:
    Currently, Section 45 does not clearly outline the requirements for being deemed an expert witness. This could lead to the acceptance of evidence from witnesses who are not qualified. To remedy this, the Act may be modified to specify the credentials and qualifications needed for someone to be deemed expert witnesses.
  • Standardising expert evidence:
    Expert testimony often varies from person to person and is susceptible to interpretation. The Act may be changed to provide a uniform technique that experts must use when giving evidence in order to remedy this. This may provide dependable and consistent testimony in many instances.
  • Independent experts:
    The Act may be modified to mandate the objectivity and independence of expert witnesses. There may be a conflict of interest since expert witnesses may currently be engaged by either the prosecution or the defence. The reliability of expert evidence may be increased by mandating independence for expert witnesses.

Section 113B
In accordance with Section 113B [2]of the Indian Evidence Act of 1872, dowry death is presumed to have occurred. There are certain issues with the execution of this clause, despite the fact that it aims to stop the mistreatment of women in the context of dowry.

The following are some of Section 113B's main drawbacks:
  • Presumption may be abused: Women who desire to settle scores with their husbands or in-laws may abuse the presumption of dowry death provided by Section 113B. In rare instances, women could fabricate claims of dowry abuse or cruelty in order to take advantage of the assumption.
  • Difficulty in establishing innocence: According to Section 113B, it is the accused's responsibility to provide evidence of their innocence. In practise, this may be challenging, particularly if the accused lacks access to material that may support their case against the assumption.
  • Failure to account for other factors: Section 113B only considers dowry as the cause of death and makes no attempt to account for other elements that could have played a role in the woman's passing. For instance, even if there is proof of dowry harassment, the assumption of dowry death may still be applicable even if a lady passed away as a result of a pre-existing medical condition.
  • Arbitrary time frame: According to Section 113B, a lady must pass away within seven years of the statute's passage in order for the presumption of dowry death to be applicable. The fact that dowry harassment might persist for many years after a marriage is not considered by this artificial time restriction.
  • Inadequate defence of the accused: Section 113B does not adequately defend the accused against unfounded or ill-intentioned claims of dowry harassment. Men's lives have been wrecked in certain instances when they were wrongfully accused of dowry harassment.

Some significant changes that can be done to fix these problems are listed below:
  • Burden of evidence: Under Section 113B, the onus of proof is presently on the accused to demonstrate that they did not aid in suicide. This may be a challenging standard to uphold, particularly when there is few supporting data. To remedy this, the Act may be changed to shift the burden of evidence from the accused to the prosecution in cases where the accused is charged with aiding suicide.
  • Limiting the application of the provision: Section 113B is often abused to unjustly accuse people of being involved in dowry deaths. To remedy this, the Act might be changed to limit the use of the provision and make sure that it only applies in situations where there is unmistakable proof of suicide aid.
  • More precise definition of aiding suicide: The Act may be changed to provide aiding suicide a more precise meaning. This can guarantee that the clause is implemented equally and uniformly in all circumstances.
  • Upholding the rights of the accused: When Section 113B is employed, the accused may experience severe hardship and social humiliation. The Act may be changed to provide for bail in situations when the accused is not at risk of fleeing or posing a threat to society in order to safeguard the accused's rights.
  • Addressing underlying social and cultural issues: Dowry killings and other types of violence against women often have a long history of underlying social and cultural issues. The Act may be changed to incorporate provisions for education and awareness initiatives aiming at modifying societal attitudes and advancing gender equality in order to solve these underlying problems.

Section 122
The Indian Evidence Act of 1872 addresses the exclusion of evidence from unpublished government documents in Section 122[3]. There are several issues with how this portion is being implemented, despite the fact that it is meant to prevent sensitive information from being revealed in court. The following are some of Section 122's main drawbacks:
  1. The Act's definition of "official records" is vague. Section 122 applies to "official records" that are not published, but the Act's definition of "official records" is vague. This ambiguity may cause misunderstandings about the kinds of documents that fall within the section's purview and may result in uneven implementation in various circumstances.
  2. Exclusionary rule with broad application: Section 122 prohibits the admission of any unpublished government documents as evidence, regardless of whether they include sensitive information. This may prevent pertinent and significant evidence from being considered in court, which might impede the administration of justice.
  3. A lack of openness in the legal system may result from Section 122's exclusion of official documents that have not been publicised. It might be difficult for the general public to comprehend the justification for the court's judgment if pertinent material is withheld from consideration in court.
  4. Possibility of abuse: Because of Section 122's wide application, authorities could try to suppress information that would be harmful to their own or the government's interests. This may lead to an unfair trial for the defendant and damage public confidence in the legal system.
  5. Outdated clause: Section 122 was passed in 1872 and is based on an old-fashioned system of government. The clause is seen as being out of date and in need of modification in the contemporary world, when accountability and openness are greatly prized.

Some significant changes that can be done to fix these problems are listed below:
  • Extending the definition of "official record": Currently, the definition of "official record" is constrained and leaves out a number of significant documents, such internal memoranda and reports produced by government organisations. The term may be expanded to cover any papers created by government organisations as part of their tasks in order to solve this.
  • Lightening the burden of proof: Under Section 122, the party introducing the evidence has the burden of establishing that the evidence is admissible. It might be challenging to carry with this obligation, particularly when the document is not easily available. The Act may be changed to remedy this issue by lowering the standard of proof required of the party introducing the evidence.
  • Toughening up the consequences for non-compliance: A fine of up to Rs. 500 may now be imposed for failing to provide an official document when asked. This fine is too little to serve as a reliable deterrence. This issue may be resolved by raising the fine to a level that is more appropriate given the significance of the document and the gravity of the offence.
  • Promoting document disclosure: The Act might be changed to permit the revelation of official papers prior to trial in order to guarantee that all relevant documents are revealed. This will guarantee that all pertinent documents are available to both parties and eliminate the need for formal production requests during the trial.

Section 65B
The admissibility of electronic evidence in court is covered under Section 65B [4]of the Indian Evidence Act, 1872. [5]Despite being an important step in recognising the use of electronic evidence in contemporary trials, there are numerous shortcomings with this provision that have been noted by legal professionals. These consist of:
  • Ambiguity in the text:
    Courts may interpret Section 65B's language in many ways due to its unclear nature. Because of this, the rule has been interpreted inconsistently, which has been a problem for solicitors and courts.
  • Requirements in terms of technology: Section 65B stipulates that any electronic evidence must be accompanied by a certificate issued by a person in charge of the computer resource. In reality, it may be challenging to satisfy this condition, particularly when obtaining the electronic evidence from a third party or when it is otherwise not easily available. The clause further stipulates that the certificate must include precise technical details on the electronic evidence, which might be difficult for non-technical people to produce.
  • Certification timing: Since Section 65B does not set a deadline for the certificate's issuing, this might cause trial delays and the exclusion of electronic evidence.
  • Restrictions on admissibility: Under Section 65B, only electronic evidence that is accompanied by a certificate may be used as evidence. If the certificate cannot be obtained for any reason, this restriction may be an issue. In these situations, crucial evidence can be omitted from the courtroom.

Some significant changes that can be done to fix these problems are listed below:
  1. Language clarification: To eliminate uncertainty and guarantee that Section 65B may be read uniformly by courts, the language employed in the section has to be clarified.
  2. Technical support: To fulfil Section 65B's technical requirements, courts may appoint experts to help with the certification procedure or mandate that the certification be performed by a licensed third party. This would guarantee the certification's dependability and accuracy.
  3. Time limits: A clear deadline should be established for the granting of the certification under Section 65B in order to prevent delays in the trial process.
  4. Widening of admissibility: While a certificate is required to verify the authenticity of electronic evidence, the clause should be changed to permit the admission of electronic evidence even in the absence of a certificate. This would guarantee that crucial evidence would not be omitted from the trial because of formal or technological difficulties.

Addition Of Technological Aspects
Long before the widespread use of electronic gadgets and digital communication, the Indian Evidence Act of 1872 was passed. As a result, the Act does not specifically include all forms of electronic evidence. It is difficult for litigants and might result in inconsistent court findings when there is uncertainty over the admission of such evidence in court. The Indian Evidence Act does not specifically mention the following types of electronic evidence:
  1. Social media evidence: In court proceedings, social media sites like Facebook, Twitter, and Instagram are more often employed as sources of evidence. The Indian Evidence Act, however, makes no mention of the admissibility of social media evidence in court. The Act neither specifies how the veracity of social media evidence may be proven nor offers instructions on how to acquire such information. Court decisions on the admissibility of social media evidence are inconsistent as a result.
  2. Instant messaging: Services like WhatsApp, Telegram, and Signal are becoming commonplace in contemporary communication. However, there is no guidance on the admission of such texts as evidence under the Indian Evidence Act. It is unknown how instant messaging chats may be shown to be legitimate and reliable, or how to gather and present such evidence in court.
  3. Email evidence: Both in personal and business settings, emails are a typical method of contact. The admissibility of email evidence is not specifically covered by the Indian Evidence Act, nevertheless. The Act neither specifies the manner in which such evidence should be given nor offers instructions on how to verify the integrity and authenticity of email exchanges.
  4. GPS and location information: GPS and location information, such as a suspect's whereabouts at the time of a crime, may be useful evidence in criminal prosecutions. The Indian Evidence Act, however, offers no instructions on the acceptance of GPS and location data as evidence. It is unknown how such data may be gathered and submitted in court, or how its integrity and validity can be verified.
  5. CCTV video: CCTV footage may be a crucial piece of evidence in both civil and criminal situations. CCTV cameras are often employed in public and private locations. The admissibility of CCTV video as evidence is not specifically addressed in the Indian Evidence Act. It is unknown how CCTV material may be collected and submitted in court, or how its integrity and veracity can be confirmed.

Necessary Changes
The following actions might be performed to fix the deficiencies in the Indian Evidence Act related to electronic evidence:
  • Modify the Indian Evidence Act to specifically address the admissibility of electronic evidence. The Indian Evidence Act should be changed to reflect this. The Act should include instructions on how to collect and present electronic evidence in court, as well as how to verify its integrity and validity.
  • Create rules for electronic evidence: The Indian government may create rules governing the use of electronic evidence in legal proceedings. These guidelines may include detailed instructions on how to acquire and present electronic evidence in court, as well as how to demonstrate the reliability and integrity of various forms of electronic evidence.
  • Create standards for electronic evidence: The government may create guidelines for the gathering, storage, and display of electronic evidence. To guarantee that electronic evidence is acceptable in court, law enforcement authorities, forensic specialists, and legal experts may employ these criteria.
  • Provide training and awareness programmes: Programmes for judges, solicitors and other legal professionals might be held to ensure that all stakeholders are aware of the admissibility of electronic evidence. These courses could provide instructions on how to acquire and present digital evidence in court.

In conclusion, an essential part of the Indian legal system is the evidence law. It is important to recognise that some of its laws are out of date and may not be applicable in the modern world. It is imperative that India's evidence laws be updated since doing so would have significant positive effects on the judicial system. One benefit is that it will improve the legal system's effectiveness and fairness, making it more receptive to the concerns of the populace. Additionally, it will help the courts process digital evidence more efficiently, which is crucial in the modern world when technology is becoming a bigger part of court cases.

Overall, it is crucial to understand that the law governing evidence is a living one that must continuously change to take into account the advancements in society. The Indian judicial system can better serve the requirements of society and make sure that justice is administered fairly and efficiently to everyone by keeping the law up to date.

  1. Section 45, Indian Evidence Act (1872)
  2. Section 113B, Indian Evidence Act (1872)
  3. Section 122, Indian Evidence Act (1872)
  4. Section 65B, Indian Evidence Act (1872)
  5. SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872 SCC Blog, last visited Apr 22, 2023

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