KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – History of the Law of Evidence in India
Introduction
​The law of evidence in India has evolved over centuries, beginning with the indigenous legal systems of the Hindus and Muslims, followed by the introduction of English principles during British rule, and ultimately culminating in the enactment of the Indian Evidence Act, 1872. Over time, technological developments necessitated further reforms, leading to the enactment of the Bharatiya Sakshya Adhiniyam, 2023, which modernizes the law of evidence for the digital era.

1. Pre-British Period
Before British rule, India followed two distinct systems of evidence law:
(a) Hindu Law of Evidence
The Hindu law of evidence was primarily contained in the Dharmashastras. Four principal kinds of proof were recognized:

• Lekhya (Documentary Evidence) – Written documents used to establish facts.
• Sakshi (Witnesses) – Oral testimony given by witnesses.
• Bhukti (Possession) – Possession as evidence of ownership or rights.
• Divya (Ordeals) – Trial by divine tests or ordeals to determine truth.

The objective of these methods was to discover the truth and administer justice.

(b) Mohammedan (Muslim) Law of Evidence
Under Mohammedan law, evidence was mainly classified into:

• Oral evidence, and
• Documentary evidence.

Like Hindu law, its primary object was to ascertain the truth through reliable proof.

2. British Period
With the establishment of British administration, English principles of evidence gradually replaced the indigenous systems.
Initially:

• The Presidency Towns of Calcutta, Madras, and Bombay followed English rules of evidence under courts established by the Royal Charter.
• Outside these Presidency Towns, there were no uniform rules governing evidence.

This lack of uniformity highlighted the need for a comprehensive evidence law applicable throughout British India.

3. Early Legislative Developments
Several enactments gradually shaped the law of evidence before the Indian Evidence Act, 1872.
Act X of 1835

• Applied to all courts in British India.
• Dealt with proof of Acts passed by the Governor-General-in-Council.

Act XIX of 1837

• Abolished the rule that a person previously convicted of an offence was incompetent to give evidence.

Act XV of 1852

• Allowed parties to civil litigation to appear as witnesses in their own cases.

Acts of Improvement (1835–1855)
Between 1835 and 1855, nearly eleven enactments introduced improvements to the law of evidence.
These enactments collectively became known as the Acts of Improvement.

Act II of 1855
This Act consolidated the earlier enactments relating to evidence into a more systematic framework.

4. Drafting of the Indian Evidence Act
Sir Henry Sumner Maine (1868)In 1868, Sir Henry Sumner Maine was entrusted with preparing an Indian Evidence Act.
However:

• His draft was found unsuitable for Indian conditions.
• Consequently, it was rejected.

Sir James Fitzjames Stephen (1871)
In 1871, the task of drafting a new Evidence Bill was entrusted to Sir James Fitzjames Stephen, the Law Member of the Governor-General's Council.
His draft was accepted and enacted as:

• Act I of 1872, popularly known as the Indian Evidence Act, 1872.

The Act came into force on:

• 1 September 1872.

5. Post-Independence Position
Before Independence, several princely States had already adopted the Indian Evidence Act.
After Independence:

• The Constitution of India came into force.
• The Indian Evidence Act continued as the principal law governing evidence throughout India.

It remained the foundational evidence law for more than 150 years until it was replaced by the Bharatiya Sakshya Adhiniyam, 2023.

6. Influence of English Law
The Indian Evidence Act was largely based on Taylor's Law of Evidence.
Sir James Fitzjames Stephen observed that the Act was:
"An attempt to reduce the English Law of Evidence into the form of express propositions arranged in their natural order, with such modifications as were rendered necessary by the peculiar circumstances of India."
Accordingly:

• English judicial decisions served as persuasive guidance.
• However, they were not binding upon Indian courts.

7. Important Features of the Indian Evidence Act, 1872
The Indian Evidence Act possessed several significant features.
(i) Fair Trial
The Act aimed to:

• Ensure fair trials.
• Exclude unreliable or irrelevant evidence.
• Assist courts in discovering the truth.

(ii) Wide Application
The Act applied to:

• Civil proceedings.
• Criminal proceedings.
• All judicial proceedings in India.

However, it did not apply to:

• Affidavits.
• Proceedings before arbitrators.

(iii) Broad Structure
The Act was broadly divided into three major parts dealing with:

• General rules of evidence.
• Relevancy of facts.
• Production and effect of evidence.

(iv) Amendments to Accommodate Technology
The Indian Evidence Act underwent several amendments, particularly after the enactment of the Information Technology Act, 2000.
Important technological changes included recognition of:

• Electronic records.
• Electronic evidence.
• Digital signatures.
• Digital Signature Certificates (DSC).

Subsequent amendments in 2008 further introduced:

• Electronic signatures.
• Electronic Signature Certificates (ESC).

(v) Need for Replacement
Despite numerous amendments, the Indian Evidence Act largely retained its original nineteenth-century framework.
Consequently, it became increasingly inadequate to address:

• Electronic evidence.
• Digital communication.
• Cybercrimes.
• Modern technological developments.

These limitations ultimately led to the enactment of the Bharatiya Sakshya Adhiniyam, 2023.

Evolution of the Law of Evidence (Chronology)

• Pre-British Period – Hindu and Mohammedan systems of evidence.
• 1726 – English rules introduced in Presidency Towns.
• 1835 – Act X dealing with proof of Government Acts.
• 1837 – Convicted persons made competent witnesses.
• 1852 – Parties permitted to testify in civil cases.
• 1855 – Consolidation through Act II.
• 1868 – Draft by Sir Henry Sumner Maine rejected.
• 1871 – Sir James Fitzjames Stephen prepared new draft.
• 1872 – Indian Evidence Act enacted.
• 2000 & 2008 – Amendments recognizing electronic evidence.
• 2023 – Bharatiya Sakshya Adhiniyam enacted.
• 1 July 2024 – BSA came into force.

Important Points 

• Pre-British India followed:
  • Hindu law of evidence.
  • Mohammedan law of evidence.
• Hindu law recognized:
  • Lekhya (Documents),
  • Sakshi (Witnesses),
  • Bhukti (Possession),
  • Divya (Ordeals).
• Mohammedan law recognized:
  • Oral evidence,
  • Documentary evidence.
• English evidence rules introduced in Presidency Towns in 1726.
• Important enactments:
  • Act X of 1835,
  • Act XIX of 1837,
  • Act XV of 1852,
  • Act II of 1855.
• Sir Henry Sumner Maine's draft (1868) was rejected.
• Sir James Fitzjames Stephen drafted the Indian Evidence Act.
• Indian Evidence Act enacted as Act I of 1872 and came into force on 1 September 1872.
• Based largely on Taylor's Law of Evidence.
• Amended to recognize:
  • Electronic records,
  • Digital signatures,
  • Electronic signatures.
• Replaced by the Bharatiya Sakshya Adhiniyam, 2023, effective 1 July 2024.

Conclusion
The law of evidence in India has undergone a remarkable evolution from the traditional Hindu and Mohammedan systems to the codified framework introduced by the Indian Evidence Act, 1872. Influenced by English legal principles yet adapted to Indian conditions by Sir James Fitzjames Stephen, the Act served as the cornerstone of Indian evidence law for over 150 years. However, rapid technological advancements, the emergence of electronic evidence, and the growth of cyber-related offences exposed the limitations of the colonial framework. These developments ultimately necessitated the enactment of the Bharatiya Sakshya Adhiniyam, 2023, which modernizes the law of evidence and aligns it with the needs of the digital age.