History and Evolution of the Law of Evidence in India: From Dharmashastra and Islamic Law to the Bharatiya Sakshya Adhiniyam, 2023

The Indian law of evidence has a continuous documented history of more than two thousand years. Ancient Indian jurisprudence recognised a systematic theory of proof; Islamic law supplied a distinct set of rules during the medieval period; the East India Company's courts produced a century of legal confusion; and the codification of 1872 imposed a single uniform scheme that survived, with targeted amendment, until its replacement by the Bharatiya Sakshya Adhiniyam, 2023.

1872

IEA ENACTED

In force 1 Sept 1872

152

YEARS

Life of the IEA

2024

BSA IN FORCE

1 July 2024

1. The Four Periods

Period	Governing source	Defining characteristic
Ancient or Hindu period (to c. 1200 CE)	Dharmashastra — Manusmriti, Yajnavalkya Smriti, Narada, Katyayana and Brihaspati; Kautilya's Arthashastra	Three recognised modes of proof — lekhya (document), sakshi (witness) and bhukti (possession), supplemented by divya (ordeal) where human proof failed
Medieval or Islamic period (c. 1200–1757)	Islamic jurisprudence — the Hidaya and the Fatawa-i-Alamgiri; adjudication by Qazis	Marked preference for oral testimony over documents; testimony classified by degree of reliability; the character of the witness central
Colonial period (1757–1872)	Charters, Regulations and a series of fragmentary Acts; English common law in the Presidency Towns	Divergent rules in the Presidency Towns and the mofussil, and between Hindus, Muslims and Europeans
Codified period (1872 onwards)	Indian Evidence Act, 1872, and thereafter the Bharatiya Sakshya Adhiniyam, 2023	A single uniform and exhaustive statutory scheme of relevancy and proof for all courts

2. The Ancient Hindu Period

Ancient Indian jurisprudence had a developed and systematic theory of proof. The Smritis contain detailed rules on who may testify, who is disqualified, how conflicting testimony is to be resolved, and what the court is to do when human proof is exhausted.

2.1 The three modes of human proof

Yajnavalkya Smriti — the classical triad of proof

Proof (pramana) was of three kinds: Lekhya, the written document; Sakshi, the witness; and Bhukti, possession or enjoyment. Where all three were absent or inconclusive, the court could resort to Divya, the divine ordeal.

The continuity with modern law is considerable. The Bharatiya Sakshya Adhiniyam still organises evidence around documents (Sections 56 to 103) and witnesses (Sections 124 to 168), and possession continues to operate as a presumptive fact under the provisions on burden of proof. What disappeared with codification was the fourth category, ordeal, which the 1872 Act abolished by simply declining to recognise it.

2.2 Rules relating to witnesses

Number. Manu prescribed a preference for multiple witnesses, and the several Smritis specify minimum numbers according to the nature of the dispute.
Character. Witnesses were required to be persons of good conduct. Gamblers, drunkards, persons of notorious character, close relatives of a party and persons with a stake in the outcome were disqualified.
Perjury. False testimony attracted both temporal punishment and spiritual consequence, which gave the oath real force.
Hearsay. Unlike the later English rule, ancient Indian practice admitted second-hand accounts, weighing them rather than excluding them. This may be contrasted with Section 54 of the Adhiniyam, under which oral evidence must in all cases be direct.

2.3 Kautilya's Arthashastra

Kautilya's treatise is the most administratively detailed of the ancient sources. It deals with the examination of witnesses, the recording of depositions, the interrogation of suspects, the use of spies and informants, and the evaluation of circumstantial indications. Its treatment of what would now be called investigation and forensic reasoning has led to its being regarded as the earliest Indian text on the practical law of proof.

3. The Medieval Islamic Period

Under the Delhi Sultanate and the Mughals, criminal and much civil adjudication was conducted by Qazis applying Islamic law, principally through the Hidaya and, from the reign of Aurangzeb, the Fatawa-i-Alamgiri. The system was markedly oral in its preferences.

Category of proof	Description	Weight
Tawatur	Full corroboration — the testimony of a large number of independent witnesses	Highest; regarded as conclusive
Ahad	Testimony of a single individual	Lower; accepted for limited purposes
Iqrar	Admission or confession by the party himself	Strong, but hedged with conditions and retractable in certain offences
Documentary proof	Written instruments	Distrusted relative to oral testimony, since writing could be forged and the writer could not be questioned

For certain classes of proof the witness was required to be a Muslim of good character, and the number of witnesses varied with the gravity of the offence. Two features of this system were subsequently reversed. The preference for oral over documentary evidence was displaced by the best evidence rule now contained in Sections 57 to 60 of the Adhiniyam. The disqualification of witnesses by religion or status was displaced by Section 124, under which competence turns only on the ability to understand the questions put and to give rational answers.

⚠ Note on the transition

Islamic law of evidence was not displaced at a single stroke. Warren Hastings' Judicial Plan of 1772 preserved the application of Muslim criminal law and of Hindu and Muslim personal law in defined areas, and Islamic rules of proof continued to be applied in the mofussil criminal courts, subject to progressive statutory modification, well into the nineteenth century. The change was one of gradual attrition rather than abolition.

4. The Colonial Period Before 1872

4.1 Two parallel systems

British India developed two parallel judicial systems, each with its own approach to evidence.

	Presidency Towns	Mofussil (the interior)
Courts	Mayor's Courts under the Charter of 1726, and later the Supreme Courts at Calcutta (1774), Madras and Bombay	The Company's Adalats — the Diwani Adalat in civil matters and the Faujdari or Nizamat Adalat in criminal matters
Applicable law of evidence	English common law rules of evidence as they stood in England	No fixed rules; a mixture of Hindu law, Islamic law, local custom and the discretion of the presiding officer
Difficulty	English technicalities transplanted without regard to Indian conditions	Unpredictability, outcomes varying with the judge, the district and the religion of the parties

The Charter of 1726 is the conventional starting point. It established Mayor's Courts in the three Presidency Towns and, by constituting them courts of record applying English law, introduced the English law of evidence into India. The Regulating Act, 1773 and the Charter of 1774 replaced the Mayor's Court at Calcutta with a Supreme Court staffed by English barristers, which deepened that influence. The mofussil meanwhile remained without any coherent evidentiary system.

4.2 The fragmentary statutes, 1835 to 1869

Between 1835 and 1855 the Governor-General in Council passed roughly eleven enactments touching upon evidence, each addressing a particular difficulty. They were influenced substantially by the reformist thinking of Jeremy Bentham and, in England, by the campaigns of Lord Denman and Lord Brougham against the disqualification of witnesses.

Enactment	Principal contribution
Act X of 1835	The first Indian statute on evidence, applicable to all courts in the Presidency Towns and the mofussil alike; the conventional starting point of statutory evidence law in India
Act XIX of 1837	Provisions relating to the admissibility of certain documents
Act V of 1840	Further rules on the proof of documents
Act VII of 1844	Relaxed the disqualification of witnesses on the ground of interest
Act XV of 1852 and Act XIX of 1853	Extended the competence of witnesses and dealt with their examination
The Act of 1855	The most substantial of the pre-1872 statutes, and the immediate precursor of the 1872 Act. It is cited in the commentaries variously as Act II of 1855 and Act X of 1855
Act VIII of 1859	Code of Civil Procedure, which carried evidentiary provisions
Act XXV of 1861	Code of Criminal Procedure, likewise
Act XV of 1869	Further amendment shortly before codification

The position nevertheless remained unsatisfactory. Judges in the mofussil courts recorded their dissatisfaction in their judgments, and litigants could not predict what material would be received. Codification became unavoidable.

5. Codification — Maine's Draft and Stephen's Act

5.1 The Maine draft of 1868

In 1868 the task of drafting an evidence law was entrusted to Sir Henry Sumner Maine, then Law Member of the Governor-General's Council. Maine, the comparative jurist and author of Ancient Law, produced a draft Bill which was circulated to the local governments. It did not proceed beyond the first reading.

Stephen recorded the reasons for the failure. The Bill was, in his account, not sufficiently elementary for the class of persons who would have to administer it in India, and it was incomplete in several respects. It was accordingly rejected as unsuited to Indian conditions.

5.2 Stephen and the Act of 1872

The work was then entrusted to Sir James Fitzjames Stephen, who succeeded Maine as Law Member in 1869. Stephen presented his draft to the Council on 31 March 1871. It was circulated to the local governments, the High Courts and members of the Bar for opinion, referred to a Select Committee, amended, and passed. The Indian Evidence Act, 1872 (Act I of 1872) received assent on 15 March 1872 and came into force on 1 September 1872.

Preamble to the Indian Evidence Act, 1872

'Whereas it is expedient to consolidate, define and amend the law of Evidence; It is hereby enacted as follows...'

Compare the long title of the Adhiniyam of 2023: 'An Act to consolidate and to provide for general rules and principles of evidence for fair trial.' The words 'define and amend' are absent, and the words 'for fair trial' are new.

5.3 The achievement of the 1872 Act

Uniformity. A single statute for the Presidency Towns and the mofussil, for civil and criminal courts, and for all communities.
The doctrine of relevancy. Stephen's central contribution was to recast the untidy exclusionary rules of English law as a positive and exhaustive list of relevant facts. English law asked what was inadmissible; Stephen asked what was relevant, and rendered everything else irrelevant by the operation of Section 5.
Simplicity of expression. The Act was drafted to be usable by officers who were not specialists, and made abundant use of Illustrations.
Adaptation rather than transplantation. The Act follows English principles but departs from them where Indian conditions required. The best known departure is Section 32(1) on dying declarations, which is considerably wider than the English rule and applies to civil as well as criminal proceedings.

Stephen also wrote An Introduction to the Indian Evidence Act (1872) and A Digest of the Law of Evidence (1876), which remain authoritative guides to the intention of the draftsman and continue to be cited by Indian courts.

📖 Stephen on the object of the Act

In his Introduction to the Indian Evidence Act, Stephen explained that the Act had two great objects: to prevent laxity in the admission of evidence, and to confine judicial enquiry to the matters actually in dispute.

Indian courts have repeatedly adopted this formulation when construing the scope of the relevancy provisions, and it survives intact into the Adhiniyam.

6. Evolution of the Indian Evidence Act, 1947 to 2023

The Act survived Independence without wholesale revision, being adapted only by the Adaptation of Laws Orders. Its substantive evolution came through targeted amendments, each responding to a particular social or technological development.

Year and statute	Change to the IEA	Occasion
Criminal Law (Amendment) Act, 1983	Inserted Section 114A, a presumption as to the absence of consent in prosecutions for specified categories of rape where sexual intercourse is proved and the woman states that she did not consent	The decision in Tuka Ram v. State of Maharashtra, AIR 1979 SC 185 (the Mathura case) and the public response to it
Information Technology Act, 2000	Inserted Sections 22A, 47A, 65A, 65B, 67A, 73A, 81A, 85A to 85C, 88A, 90A and 131 and a proviso to Section 39; amended the definition of 'evidence' to include electronic records	The arrival of digital records and the UNCITRAL Model Law on Electronic Commerce
Criminal Law (Amendment) Act, 2002	Inserted the proviso to Section 146 of the Indian Evidence Act (now the proviso to Section 149 of the Adhiniyam) barring cross-examination of a prosecutrix as to her general immoral character	The 172nd Report of the Law Commission (2000) on the review of rape laws
Criminal Law (Amendment) Act, 2013	Inserted Section 53A, rendering evidence of character or previous sexual experience irrelevant in specified sexual offences; recast the proviso to Section 146 of the Indian Evidence Act (now Section 149 of the Adhiniyam) and amended Section 114A (now Section 120)	The report of the Justice J.S. Verma Committee following the Delhi gang-rape of December 2012
Criminal Law (Amendment) Act, 2018	Consequential amendments tracking the new age-based offences	Public response to the Kathua and Unnao cases
Bharatiya Sakshya Adhiniyam, 2023	Repeal and replacement of the entire Act	The criminal law overhaul of 2023

Under the Adhiniyam, Section 114A of the Indian Evidence Act corresponds to Section 120, and Section 65B corresponds to Section 63.

7. Reform Reports and Committees

The Adhiniyam was preceded by six decades of official review of the Indian Evidence Act and of the criminal justice system more broadly.

Report or Committee	Year	Significance for the law of evidence
14th Report, Law Commission of India — Reform of Judicial Administration	1958	The first systematic post-Independence review; addressed delays in the recording of evidence
69th Report, Law Commission of India — The Indian Evidence Act, 1872	1977	The most comprehensive review undertaken of the Act; issued in three parts, recommending extensive change including on custodial confessions and cross-examination
172nd Report, Law Commission of India — Review of Rape Laws	2000	Led to the amendments of 2002 and 2013 to Sections 146 and 53A
185th Report, Law Commission of India — Review of the Indian Evidence Act, 1872	2003	Revisited and updated the 69th Report; the most frequently cited modern source on reform of the Act
Malimath Committee — Committee on Reforms of the Criminal Justice System (Chair: Justice V.S. Malimath)	2003	Recommended a reconsideration of the adversarial model, including of the admissibility of custodial statements
Madhava Menon Committee — Draft National Policy on Criminal Justice	2007	Proposed a national policy framework for criminal justice reform
Committee for Reforms in Criminal Laws (Chair: Prof. (Dr.) Ranbir Singh, former Vice-Chancellor, National Law University, Delhi)	2020	Constituted by the Ministry of Home Affairs; its consultation process fed into the drafting of the three statutes of 2023
Standing Committee on Home Affairs, Report No. 248 (Chair: Shri Brij Lal)	2023	Examined the Bharatiya Sakshya Bill, 2023; presented on 10 November 2023; eight members filed dissent notes

8. The Judicial Evolution of Electronic Evidence

Running alongside the legislative history is a line of Supreme Court authority on electronic records which forms the direct background to Sections 57, 61 and 63 of the Adhiniyam.

📖 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

Held: Call detail records could be proved as secondary evidence under Sections 63 and 65 of the Indian Evidence Act even without a certificate under Section 65B(4). Section 65B was treated as an additional, not an exclusive, route to admissibility.

Status: Overruled on this point in Anvar P.V.

📖 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

Held: Electronic records form a special class. Sections 65A and 65B together constitute a complete code, and compliance with Section 65B(4) is mandatory for secondary electronic evidence. The maxim generalia specialibus non derogant was applied, general provisions not derogating from special ones. Navjot Sandhu was overruled to that extent.

📖 Tomaso Bruno v. State of U.P., (2015) 7 SCC 178

Held: Proceeded on the footing that electronic evidence could be admitted under Sections 63 and 65 without a certificate under Section 65B(4).

Status: Declared per incuriam in Arjun Panditrao, for having overlooked Anvar P.V. and the statutory scheme.

📖 Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801

Held: A two-Judge Bench treated the certificate requirement as procedural and capable of relaxation where the party tendering the evidence was not in possession of the device.

Status: Held not to be good law in Arjun Panditrao.

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Held: A three-Judge Bench settled the position. The certificate under Section 65B(4) is mandatory for secondary electronic evidence, but is not required where the original device is itself produced by its owner. Where a party cannot procure the certificate because the device is in the control of another, the court may compel its production under Section 165 of the Indian Evidence Act, Order XVI of the Code of Civil Procedure or Section 91 of the Code of Criminal Procedure. The Court also observed on the need for a uniform procedure for the preservation of electronic records.

Legacy: These holdings were substantially absorbed into Section 57 and Section 63 of the Adhiniyam.

📖 Pune Bar Assn. v. Union of India, 2026 SCC OnLine SC 1297 (decided 22 May 2026)

Held: A three-Judge Bench (Surya Kant, CJI, Joymalya Bagchi and Vipul M. Pancholi, JJ.) upheld the constitutional validity of Section 63(4) of the Adhiniyam and its Schedule against a challenge of manifest arbitrariness. The requirement of hash-value disclosure in Part A and of an expert declaration in Part B was held to bear a rational nexus with the object of protecting the integrity of electronic records. Reading Sections 39(1) and 39(2) harmoniously, the Court held that the expert for Part B is not limited to an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000; any person with special skill in computer science or cyber forensics may sign, subject to the satisfaction of the court. The contrary view of the Madras High Court in R. v. B. was held not to be binding precedent.

Significance: The first decision of the Supreme Court on the validity of a provision of the Adhiniyam.

9. The Legislative Passage of the BSA

Date	Event
11 August 2023	The Bharatiya Sakshya Bill, 2023 introduced in the Lok Sabha by the Union Home Minister, together with the Bharatiya Nyaya Bill and the Bharatiya Nagarik Suraksha Bill; all three referred to the Standing Committee on Home Affairs
10 November 2023	The Standing Committee on Home Affairs (Chair: Shri Brij Lal) presents Report No. 248 on the Bharatiya Sakshya Bill, 2023; eight members submit dissent notes
12 December 2023	The first Bill is withdrawn and the Bharatiya Sakshya (Second) Bill, 2023 is introduced, incorporating most of the suggestions of the Standing Committee
20 December 2023	Passed by the Lok Sabha
21 December 2023	Passed by the Rajya Sabha
25 December 2023	Receives the assent of the President and becomes Act No. 47 of 2023
1 July 2024	Brought into force by notification of the Ministry of Home Affairs; the Indian Evidence Act, 1872 stands repealed

It is the Bharatiya Sakshya (Second) Bill, 2023, and not the Bill introduced in August, that became the Adhiniyam. The same sequence of withdrawal and reintroduction applies to the Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita.

10. Continuity and Change

The architecture has proved durable. Stephen's central move, the replacement of scattered exclusionary rules by an exhaustive positive scheme of relevancy, has survived the colonial transition, Independence, a written Constitution, six decades of amendment and a complete legislative replacement. The Adhiniyam reproduces it.
The points of difficulty have not shifted. Custodial confessions, the reliability of witness testimony, the exceptions to the rule against hearsay, and the treatment of new technologies are the same four questions that occupied Stephen in 1871, the Law Commission in 1977 and 2003, the Malimath Committee in 2003 and Parliament in 2023. Only the treatment of technology has substantially advanced.
Decolonisation was in part expressive. The removal of references to England, the Crown and the jury, and the adoption of a Sanskrit-derived title, are real but largely symbolic changes. The rules on custodial confessions, framed on assumptions about the reliability of the police in colonial India, remain substantially as they were.

11. Related Topics and Provisions

Topic or provision	Connection
Introduction to the BSA, 2023	The meaning of 'evidence', the salient features of the Adhiniyam, and the correspondence table between the IEA and the BSA
Object, Scope, Application and Scheme of the BSA, 2023	Works out the consequences of the change in the preamble discussed above
Sections 22 and 23, BSA	The historical concern with custodial coercion that produced Sections 25 to 27 of the Indian Evidence Act
Sections 57, 61 and 63 and the Schedule, BSA	The provisions into which the line of authority in Part 8 above was codified
Section 26, BSA	Dying declarations, the best known instance of Stephen's departure from English law
Section 79A, Information Technology Act, 2000	Examiner of Electronic Evidence, construed in Pune Bar Assn.