One hundred (and fifty) years of solitude: the Indian Evidence Act 1872 as a lost project of law reform

Abstract

ABSTRACT The Indian Evidence Act 1872 was a significant component of the legal codification project of colonial India. It aimed to consolidate scattered common law rules of evidence into an organized and workable code. Sir James Fitzjames Stephen, its principal draftsman, attempted to design a statute that would not only reorganize evidence law into cogent provisions but also improve its most confusing aspects, such as the fact-evidence distinction, hearsay, and relevance. Stephen did this by introducing conceptual categories and amending existing rules. In this paper, I show how the design of the Act aimed to achieve substantive reform of evidence law. I argue that judicial interpretation and academic scholarship have misconstrued the Act’s principles and structure, undermining its intended improvements on common law rules. Consequently, the legal confusions it had sought to resolve have continued to persist in evidence law.