The Indian Evidence Act, 1872

What it does

The Indian Evidence Act, 1872 is a repealed statute. It was the law of evidence in India for more than a century and a half. It decided what facts a court could treat as relevant, how a fact was to be proved, who carried the burden of proof, which presumptions the court might or must draw, and which witnesses could be examined and in what manner. It applied to proceedings before courts and not to affidavits and proceedings before arbitrators, which are governed differently.

The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) replaced it. The new Act was published in the Gazette on 25 December 2023 and, with the Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita, took effect on 1 July 2024. For proceedings and events after that date, the new Act is the one that applies. The 1872 Act remains the source of the law for matters that pre-date the change, to the extent the repealing law preserves them, and for case law that construes its sections.

Who it binds

For the period it was in force it bound the courts, the parties and their witnesses. Today it is relevant mainly to those who must prove facts that arose before 1 July 2024, to lawyers reading older judgments, and to anyone tracing how a particular rule came to be as it is. Whether the old Act or the new Act governs a given step in a case that straddles the date is a question about the saving provision of the repealing Act, and it should be answered from that text and not by assumption.

What has changed, and when

• The 1872 Act was amended over the years, including to provide for electronic records as evidence, and to add certain presumptions.
• The Bharatiya Sakshya Adhiniyam, 2023 replaced it for the future from 1 July 2024. Many of its provisions follow the old ones closely, with changes of numbering and of detail. A section number cited from an older judgment therefore needs to be matched to the new Act before it is relied on.
• The Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure, 1973 on the same date, is the companion text, and the site has a page on it.

What turns on it in practice

The site's note on powers of attorney signed abroad shows the replacement at work. The presumption that a document purporting to be a power of attorney was properly executed and authenticated now sits in section 84 of the Bharatiya Sakshya Adhiniyam, 2023, and the note records that it replaces section 85 of the Indian Evidence Act, 1872. A reader who finds the old section number in a precedent, or in a draft prepared from a form, has to carry it across to the new number.

The note also draws the limit of such a presumption. It is a presumption of execution and authentication. It says nothing on whether the document is valid in substance, whether the signatory had authority, or whether the stamp and registration formalities were met. That limit is not new, and the older cases that state it continue to be useful where the new provision reproduces the old.

In a dispute, two questions come first. The first is the date of the event and the date on which the proceeding began, and which Act applies to each step. The second is whether an authority that cites the 1872 Act has a counterpart in the 2023 Act. The same applies to documents prepared for a transaction that may later be proved in court: a clause that refers to a section of the old Act now points to a repealed provision.