What Is Law of Evidence And What Are Its Function in Judicial Inquiries?


Justice and evidence go hand in hand in the legal and judicial world, evidence often impacts and changes the game of legal suits. It is to be noted that the Law of Evidence differs from country to country and in India, the Evidence Act weighs its importance since the objective of the Indian Judicial System is to ensure justice and protection of rights of every individual and only with the aid of proper facts, procedure and evidence justice can be administered to all.

Understanding Evidence Law:

The Indian Law of Evidence has been taken from the English Law and it came into being all over India on 1st September 1872, however, it is not applicable on the army and navy laws, disciplinary laws, and all affidavits. Despite being based on English Law, the Indian Evidence Act is not full in comprehension, it is a Lex Fori law which means that the law of the land of the court proceeding.

Corpus Juris is classified into:

Substantive Laws: these laws establish a set of rules and regulations that govern the society.

Procedural Laws: these laws establish rules and regulations in regard to laws governing the procedural aspects.

However, the Law of Evidence does not classify in either the substantive or procedural law, instead, it is a subject matter of ‘adjective law’ which defines pleading, evidencing, and procedure with respect to substantive laws.[1] Hence the Evidence Law touches matters such as rights and procedures.


The Indian Evidence Law has come a long way, since the Dharma Shastra’s to the Evidence Act, 1872, Indian justice history has witnessed and still continues to witness the constant changes in its law.

Law of Evidence during Hindu Raj

During this time period, the detailed source of the evidence was gathered through the Dharmashastras. According to the Dharmashastras, the motive of the trial was to determine the truth. The king who acted as the judge deducted the truth using his skills.

Vasista recognized three types of evidence:

  1. Lekhya (documentary evidence)
  2. Sakshi (witness)
  3. Bukhti (possession).

Law of Evidence during Muslim Jurisprudence

During this period the Muslim king and emperor resolved the judicial issues on the basis of Islamic Law which was derived from the Quran. The Law of Jurisprudence was discussed in the book “Muslim Jurisprudence” written by Abdul Rahim.

It was also noted that the Qazis decided the disputes and the two forms of evidence considered in Islamic rule were:

  1. Oral form of evidence
  2. Documentary form of evidence.

Law of Evidence during British India

The presidency courts were first established in 1872 through the Royal Charter in Bombay, Calcutta, and Madras. The Evidence Act consisted of rules and regulations which were used to govern the admissibility of evidence in the court of law. The first attempt to codify the rule of evidence was done in 1835 due to the absence of definite rules which fit the different social groups and strata of the Indian community.

It was then that Sir James Fitzjames Stephen submitted his draft to the selection committee and bar that got the required approval. This respective draft came into being and was advanced as the final ” Evidence Act” in the year 1872. Sir James Fitzsjames Stephen came to be known as the founding father of the Evidence Act.

Defining ‘Evidence’:

“Evidence” comes from a Latin word called “Evidere” which translates to ‘to show clearly, or to discover, or to ascertain or to prove’.

According to Section 3 of the Evidence Act, 1872 Evidence. “– Evidence ” means and includes–

  • all statements which the Court permits or requires to be made before it by witnesses, in relation to matter of fact under inquiry; such statements are called oral evidence;
  • [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.[2]

As per the knowledge of Stephen, evidence is ambiguous which derives that it sometimes means the uttered words and exhibition of things before the Court of Justice, further at other times it means the facts must be proven to exist by words or things in regard to the groundwork of inference since other facts in issue are not proved. It is sometimes also used as meaning to assert a particular fact that is relevant to the matter in inquiry.[3]

Characterization of the Evidence Act, 1872:

The following Act has been divided into three parts:4

PART I – Relevancy of Facts

  • Chapter 1 : Preliminary (Section 1 to 4)
  • Chapter 2 : The relevancy of facts (Section 5 to 55)

PART II – On Proof

  • Chapter 3 : Facts which need not be proved (Section 56 to 58)
  • Chapter 4 : Of oral evidence ( Section 59 to 60)
  • Chapter 5: Of documentary evidence ( Section 61 to 90)
  • Chapter 6 : Of the exclusion of oral by documentary evidence ( Section 91 to 100)

PART III – Production and effect of evidence

  • Chapter 7 : Of the burden of proof (Section 101 to 114)
  • Chapter 8 : Estoppel ( Section 115 to 117)
  • Chapter 9 :Of witness ( Section 118 to 134)
  • Chapter 10 : Of the examinations of the witness ( Section 135 to 166)
  • Chapter 11 : Of the improper admission and registration of evidences ( Section 167)

Types of Evidence

Evidence can be categorized into several parts, some of these include:

  1. Oral evidence – Section 60
  2. Documentary evidence – Section 3
  3. Primary evidence – Section 62
  4. Secondary evidence – Section 63
  5. Real evidence
  6. Hearsay evidence
  7. Judicial evidence
  8. Non-judicial evidence
  9. Direct evidence
  10. Circumstantial evidence
  11. Prima-facie evidence

Necessity of Evidence Law

Evidence law is generally used in court, however, its importance and necessity have a much broader and bigger ground. Evidence law becomes a key factor in –

1. Judicial Sector: Evidence Law helps with cases in relation to- (a) Criminal Case (b) Civil Case, by laying a set of rules, procedures and demands in order to provide justice.

2. Quasi Sector: Administration has to follow due process of law and the Evidence Law helps in maintaining their jurisdiction.

The Law of Evidence is a touch of practical courtroom knowledge, it cannot be duplicated or recited and only if one is well versed in the theories of evidence law, they can only if have first-hand knowledge and experience as practitioners. The independent application of evidence law is dynamic in relation to the rule of substantive law and the rule of procedural law. The Law of Evidence helps in establishing and regulating the decorum procedure and morality during the court and tribunal proceedings.

Therefore Evidence law holds importance and relevance in the admissibility process of the court.

Role of Evidence Law in Judicial Inquiries

Section 3 of the Indian Evidence Act also elaborates on what is court and in respect to the section, it further subsumes the allotment of authorities, judges, magistrates and every individual who holds an exception to arbitrariness to lawfully authorized to take the evidence.

Judicial inquiry is a formal process directed in order to discuss the conduct of a judge. This term was defined in the Evidence Act 1872. During the Judicial proceeding, the court must act under legal, administrative and executive responsibilities. The acting auditor or the magistrate is expected to act in the judicial capacity. The act also explains that any trial inquiry must be adjudged as a proceeding between the prosecutor and the accused within the parameters of the respective sections[4]

It was held in Queen vs Tulja[5] that any enquiry which is taken lawfully can be remembered as a lawful proceeding. Therefore an enquiry is judicial if it has the objective to resolve the jural relation between one party to another.

It was also held in R vs Gholam[6] that proceeding can be expressed as any procedure over the course of which evidence is or might be taken, or in which any judgment, sentence, or final order is passed on recorded evidence.

Likewise, in the case of Queen Empress vs Bahram[7] it was announced by the court that any proceedings before a Magistrate who is not authorized to direct an inquiry will not be considered as a judicial proceeding in any circumstances.

Therefore Evidence Law creates bridges that help in the judicial inquiries, it sets up rules and procedures that mold the sight of any trial.


It must be concluded that the Indian Evidence Act, 1872 is extensive and it’s suggestions are broader and have vast interpretation. The implementation of the respective act nevertheless solely depends on the statutory provisions, the demand of the circumstances, facts of the case, principles and the underlying nature of the case that will be put into force to achieve the natural justice of a man.

Although, the sheer aim of the Evidence Act is distributed to what the Court has to do in order to search the truth on the basis of facts which will be presented before the Court through either of the parties to attain justice as punctually as possible. Hence the Rule Of Evidence is not to put barriers of limitations and restrictions the parties instead it behaves as a guide to assist them to provide evidence in front of the Court.

[1] https://www.lawctopus.com/academike/concept-historical-background-evidence/

[2] https://www.indiacode.nic.in/handle/123456789/2188?locale=en

[3] Stephen’s Introduction, pp. 3-4. 4 SSC Online

[4] https://indiankanoon.org/doc/800773/

[5] https://indiankanoon.org/doc/1110452/

[6] Queen vs Gholam Ismail And Anr.(1875) ILR 1 All 1

[7] Queen-Empress v. Bharma (1886) 11 Bom. 702 FB

This article has been written by Amna Ali, B.A. LL.B student at Amity University, Noida.

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