Traversing the Muddy Waters—Legality, Tenability, and Reliability of Co-defendant’s Confession under the Indian Evidence Act

Abstract

Abstract This article critiques the Indian jurisprudence on section 30 of the Indian Evidence Act, 1872. Under the present legal framework, a confession of a co-defendant in a joint criminal trial may be utilized by the Courts to corroborate other pieces of evidence, in order to determine the guilt of non-confessing defendants, also. However, this article argues that the ‘original meaning’ of section 30 makes the confession of a testifying defendant, admissible as against its maker—alone. And not against the other co-defendants. This position is supported by the drafting history behind section 30, and further, is the tradition and practice across common law jurisdictions. In this connection, the author argues that in the absence of any cross-examination or oath, admitting such a confession under section 30 prejudices the fair trial right of non-confessing co-defendants. Hence, it must be excluded altogether by the Courts—as a bright-line rule—while the guilt of those non-confessing co-defendants is determined. Conversely, the author argues that the interpretation of section 30 in light of its original meaning, which makes confession admissible against its maker alone, would automatically safeguard constitutional due process guarantees and the fair trial right of the non-confessing defendants.