Report No. 69

Chapter 5

Preliminary Provisions

5.1. Section.-Introduction.-

Section 1 of the Act deals with the short title, commencement, extent and application of the Act. Insofar as the section deals with the application of the Act, it requires some examination. This part of the section really deals with two aspects, namely, application of the Act as regards authorities, and application of the Act as regards proceedings.

As regards the authorities, the section provides that the Act applies to all judicial proceedings in or before any court including courts martial, other than courts martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Forces Act, but not to any proceedings before an arbitrator. As regards proceedings, the section provides that the Act applies to Judicial proceedings only, and not to affidavits.

5.2. Courts martial.-

As originally enacted, the section1 was much simpler, and read:

"1. This Act may be called the Indian Evidence Act, 1872:

It extends to the whole of British India, and applies to all judicial proceedings in or before any court, including courts martial, but not to affidavits presented to any court or officer, nor to proceedings before an arbitrator; and it shall come into force on the 1st day of September 1872."

There was no express exclusion, by the text of the original section or European courts-martial, but the Army Act, 1881 (a British statute)2 excluded the application of the Indian Evidence Act in relation to courts-martial convened under that Act, and made the English law of evidence applicable to those courts.

1. See infra.

2. See infra.

5.3. Courts-martial.-

Let us first examine the question of courts martial. The appellation 'marshal' is derived from the Court of the Constable and the Marshal which, in England, administered regulations and articles issued by the King for the governance of the Army until the passing of the Mutiny Act in 1688.1

In India, section 73 of the Government of India Act, 1833 empowered the Governor-General-in-Council to legislate for what was then referred to as native arm.- and laws so made were given general application to all native officers and soldiers wherever serving. Articles made in exercise of this power (first made in 1845) were amended from time to time; and when the Indian Evidence Act was passed, the articles were to be found in an Act of 1869. It was in 1911 that the Indian Army Act was passed.

1. See Holdsworth History of English Law, Vol. 1, pp. 573-580.

5.4. Apparently, the specific mention in section 1 of courts martial was considered necessary because these courts do not belong to the ordinary judicial system. The primary objects of military law-which these courts administer-are disciplinary and administrative.

5.5. In 1919, the textual amendment of section 1, for excluding Courts-Martial convened under the Army Act, was made. The amendment excluding courts martial convened under the Naval Discipline Act and the Indian Navy (Discipline) Act was made in 1934. The amendment excluding courts martial convened under the Air Force Act was made in 1927. These enactments should not be confused with post-Independence legislation relating to the three wings of the defence forces of the Union.

5.6. Exception regarding courts martial constituting a modification of lex fori.-

What was the need for this exception? The answer seems to be this. In general, the law of evidence is the lex fori. But, by excluding the applicability of the Act to Courts which may be described conveniently as European Courts Martial, section 1 constitutes an exception to this rule. Sections 127 and 128 of the Army Act, 1881 (a British Statute), provided that the rules of evidence to be adopted in a proceeding before European Courts Martial shall be the same as those which are followed in civil courts in England. That is why these courts have been excluded.

5.7. The Army Act, the Naval Discipline Act and the Air Force Act referred to in the present section are statutes of the British Parliament. The exception in regard to courts constituted under these statutes was made for the purpose of European courts martial, on the basis that these courts were governed by the English law of Evidence,1 as already stated.2

1. See sections 127, 128, Army Act, 1881 (English) read with sections 163-165.

2. Para. 5.6, supra.

5.8. British Statutes already repealed.-

It should also be noted that the Army Act, 1881 (44 and 45 Vict., Ch. 58), has been actually repealed, in its application to India, by the British Statutes (Application to India) Repealing Act, 1960 (57 of 1960). As regards the Naval Discipline Act, (29 and 30 Vict., C. 109), it may be stated that the Indian Navy (Discipline) Act, 1934 (34, of 1934), when it was adapted by the Adaptation of Laws Order, 1950, ceased to refer to the (English) Naval Discipline Acts, vide adaptations made in the preamble, and long title, the addition of new sections and the omission of section 102 which referred to the Naval Discipline Act. The current Indian legislation regulating the naval forces is the Navy Act, 1957, which has repealed the Act of 1934.

The Air Force Act, i.e., the Air Force (Constitution) Act, 1917 (7 and 8 Geo. V., Ch. 51), has also been repealed, in its application to India, by the British Statutes etc. Repeal Act, 1960, just now referred to. In fact, in the changed political context, these Acts had no relevance, and even their repeal was only a legal formality, because, even without such repeal, these Acts had lost their utility for India. Therefore, the references to these Acts should be deleted from section 1, as obsolete.

5.9. Indian Courts martial.-

So far as Indian courts-martial are concerned, the Evidence Act applies to them, first, because section 1 so provides and, secondly, because the relevant provisions of the Indian statutes applicable to the Defence Forces expressly provide that the Indian Evidence Act shall, subject to the provisions of those Acts, apply to all proceedings before a court-martial.1

1. See, for example,-(i) The Army Act, 1950 (46 of 1950), section 133; (ii) The Air Force Act, 1950 (45 of 1950), section 132; and (iii) The Navy Act, 1957 (62 of 1957), section 130.

5.10. Court and Judicial proceedings.-

The Evidence Act applies to 'judicial proceedings' before all 'courts'. Points arising out of these two expressions will be dealt with later,1 when considering the definitions in the Act.

1. See discussion under section.-'Court', and Section.-'Judicial proceeding', infra.

5.11. Section.-Affidavits.-

The Act does not apply to affidavits; but it may be noted that the Code of Civil Procedure contains rules as to the facts which can be mentioned in an affidavit1 The Code allows a person to mention, in an affidavit, facts on information and belief. In interlocutory applications, the Court acts on evidence given on information and belief, because no other evidence is obtainable at so short a notice.

1. Order 19, rule 3, Code of Civil Procedure, 1908.

5.12. Arbitrators.-

As regards arbitrators, they are not, in matters of procedure, bound by technical rules of court, and they are also unfettered by technical rules of evidence1. The expression 'court', as defined in the Act,2 also excludes arbitrators.

1. (a) Howard v. Wilson, 1878 ILR 4 Cal 231. (b) Supu v. Govinda, 1887 ILR 11 Mad 85.

2. Section 3.

5.13. Recommendation as to section 1.-

In the light of the above discussion, we recommend that section 1 should be amended so as to delete that portion of the section which excludes the courts martial mentioned above, i.e. those constituted under British Statutes, now repealed.1

1. Para. 5.8, supra.

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