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Documents (6)

1. LAW OF EVIDENCE AS PROCEDURAL LAW

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2. Lex Fori
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3. BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA8
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4. TERRITORIAL APPLICATION OF THE ACT
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5. SECTION 3 OF THE INDIAN EVIDENCE ACT
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6. CLASSIFICATION OF EVIDENCE
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 LAW OF EVIDENCE AS PROCEDURAL LAW
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
LAW OF EVIDENCE AS PROCEDURAL LAW

Law is classified into Substantive Law and Procedural or Adjective Law.1 It is said that Substantive Law is the law
that confers powers and rights or imposes duties and liabilities on persons whereas the Procedural Law deals with
the procedure by which those rights, duties and liabilities are enforced in a Court of law.2The Civil Procedure Code
(CPC), Criminal Procedure Code (CrPC) and Evidence Act, are examples of procedural laws and the first two
codes lay down what court is to be approached for civil or criminal cases, respectively, the jurisdiction of the Courts
etc and the Evidence Act provides for the methodology by which the cases have to be conducted in the matter of
production of relevant oral, documentary and material evidence and the examination of witnesses etc. The Indian
Constitution and the Indian Penal Code (IPC) are examples of Substantive Laws. Thus, while Section 302 of IPC
provides for death sentence as one of the punishments for the offence of murder, it is Section 354, Clause (5) of
CrPC which prescribes the procedure for the execution of the death sentencei.e., that the convict shall be hanged
by the neck till he is dead. The procedural laws often contain various safeguards for the accused in criminal cases
and provide the flesh and blood to the bare bones of the sometimes pithy and terse provisions of substantive law.
Justice Felix Frankfurter of U.S. Supreme Court declared: “the history of American freedom is, in no small measure,
the history of procedure.”3 Justice William O Douglas observed: “It is procedure that spells much of the difference
between rule by law and rule by whim or caprice.”4

However, as Salmond says, “it is no easy task to state with precision the exact nature of the distinction between
substantive law and the law of procedure.”5 It is not correct to come to the conclusion that it is only the substantive
laws that confer rights and that the procedural laws lay down only procedure. Conversely, it is also not correct to
presume that substantive laws cannot contain procedural provisions or that procedural laws cannot contain
provisions that confer powers and rights or impose duties.6 For instance, Section 491 of Crpc of 1898, prior to its
omission by amendment in 1973, conferred “Power to issue directions of the nature of a habeas corpus” on the
High Courts and this writ is now part of the fundamental right conferred by Article 32 and the Constitutional right
under Article 226 of the Constitution. Section 300 of the present CrPC of 1973 confers the right of the accused
against double jeopardy in a manner wider than under Article 20(2) of the Constitution.7

1 It is said that “the dichotomy was fathered by Jeremy Bentham in a 1782 work entitled Of Laws in General”. See D.
Michael Risinger, “‘Substance’ and ‘Procedure’ Revisited: With Some Afterthoughts on the Constitutional Problem of
‘Irrebuttable Presumptions’”, 30 UCLA L. Rev. (1982) 189, at 191. Procedural Law and Adjective Law are treated as
synonymous by learned authors. W.W. Cook, “‘Substance and ‘Procedure’ in the Conflict of Laws”, Yale Law Journal,
Vol. 42, 1933, p. 333.
2 Sir James Fitzjames Stephen said: “A law may be divided into Substantive Law, by which rights, duties, and liabilities
are defined, and the Law of Procedure, by which the Substantive Law is applied to particular cases.” See, Digest of
Law of Evidence (London, 1876), Macmillan and Co., Introduction, p. ix. Sir Stephen further observed: “The law of
procedure includes, amongst others, two main branches,—(1) the law of pleading, which determines what in particular
cases are the questions in dispute between the parties, and (2) the law of evidence, which determines how the parties
are to convince the court of the existence of that state of facts which, according to the provisions of substantive law,
would establish the existence of the right or liability which they allege to exist” Sir James Fitzjames Stephen, The Indian
 Page 2 of 2
LAW OF EVIDENCE AS PROCEDURAL LAW

Evidence Act: with an Introduction of the Principles of Judicial Evidence (London, 1872), Macmillan Co., p. 8. Phipson
says: “Law is commonly divided into Substantive Law, which defines rights, duties, and liabilities; and Adjective Law,
which defines the procedure, pleading, and proof, by which Substantive Law is applied in practice.” The term
‘procedure’ “is, however, often used to include the other two.” Phipson, Manual of the Law of Evidence, ed. T.S. Elliott,
12th edn., 1987, p.1.
3 Malinski v. New York, 324 U. S. 401, 414 (1945), at p. 590 .
4 Joint Anti-Fascist Refugee Committee v. Mcgrath, 341 U.S. 123 (1951), at p. 179 .
5 Salmond on Jurisprudence, 12th edn, P.J. Fitzerald ed., (London, 1966), p.461.
6 Thomas O. Main observes: “laws could be both substantive and procedural or could be neither substantive nor
procedural” and that some procedural rules have substantive orientation and vice versa. Thomas O. Main, “The
Procedural Foundation of Substantive Law”, Washington University Law Review, Vol. 87, 2009, pp. 10 and 15. This
paper is available from the Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=1113916 (last accessed on 28th January, 2015). As Kelsen points out, procedural law also
deals with the “organs” (Courts etc) that apply the law and their powers and jurisdiction and, hence, have substantive
content. Hans Kelsen, General Theory of Law and State (Cambridge, Mass., 1945), p. 129.
7 While Section 300 covers both autrefois convict and autrefois acquit, Article 20(2) deals only with autrefois convict.

End of Document
 Lex Fori
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
LEX Fori

In Latin, lex means law and forum means Court and lex fori means the law of the Court. Suppose an Indian Hindu
marries an American Christian in Paris, sets up his matrimonial home in Geneva and later seeks divorce in Mexico.
In this case the Mexican Court will have to first decide which law will be applicable to the case to adjudicate on the
issues of grounds of divorce etc. Let us assume that according to the Mexican Law the case has to be decided
according to the law of the place where the parties have set up their matrimonial home i.e., the Swiss law. It means
that the Mexican Court will apply the Swiss substantive law and decide whether the petitioner had the right to seek
a divorce or not. But the Court will follow the Mexican Law relating to its own jurisdiction and other procedures of
the Court in conducting the trial of the case. In other words, the Mexican Court will apply its own procedural law as
lex fori or the law of the Court in matters concerning the procedure but apply Swiss law in matters relating to the
substantive rights of the parties. If in this case the husband has pleaded cruelty by the wife as a ground of divorce,
the question whether cruelty is a ground of divorce will be decided by the Court according to Swiss law but whether
in fact the husband has approached the correct Court in Mexico for filing the case and, if he did, whether he could
adduce proper proof of cruelty through witnesses and documents will be decided by the Court according to Mexican
procedural law as the lex fori. Thus, choice of the Court will result in the choice of the lex fori with regard to choice
of procedural law.

End of Document
 BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA8
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
BRIEF HISTORY OF THE LAW OF EVIDENCE IN INDIA8

As Sarkar points out, “before the introduction of the Indian Evidence Act, there was no complete or systematic
enactment on the subject”. Within the Presidency towns of Calcutta, Bombay and Madras, the Courts established
by the Royal Charter followed the English rules of Evidence. Outside the Presidency towns, the law was vague and
indefinite as there were no fixed rules of evidence.9 The mofussil Courts were held to be not bound to apply the
English rules of evidence and they were also held to be not bound by the rules of evidence contained in the
customary Hindu Law and Muslim Law.10 Consequently, there was a certain amount of caprice and arbitrariness in
the administration of the law of evidence11and perhaps this anarchy paved the way for the eventual enactment of
the Indian Evidence Act based on the English rules of evidence. Though some attempts have been made between
1835 and 1853 through legislative action to codify and reform the existing rules of evidence, the attempts proved to
be fragmentary and desultory. Though the Act of 1855 proved to be “the most important and contained valuable
provisions”, this Act also “did not contain a complete body of rules”.12

8 See N.D. Basu, Law of Evidence, 6th edn, P.M. Bakshi, ed., (New Delhi, 1998), p.12.
9 See, Sarkar’s Law of Evidence: In India, Pakistan, Bangladesh, Burma and Ceylon, 14th edn, Sudeepto Sarkar and V.
Manoher, Vol.1 (1993), p.1.
10 R v. Khairulla, 6 W.R.Cr 21 (per Peacock, CJ).
11 See Sarkar’s Law of Evidence: In India, Pakistan, Bangladesh, Burma and Ceylon, 14th edn, Sudeepto Sarkar and V.
Manoher, Vol.1 (1993), p.1.
12 Ibid., p.2.

End of Document
 TERRITORIAL APPLICATION OF THE ACT
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
TERRITORIAL APPLICATION OF THE ACT

S. 1. Short title, extent and commencement.— This Act may be called the Indian Evidence Act, 1872.

It extends to the whole of India27 except the State of Jammu and Kashmir and applies to all judicial proceedings in
or before any Court, including Court-martial, other than Courts-martial convened under the Army Act (44 and 45
Vict.,c.58), the Naval Discipline Act (29 and 30, Vict.,c.109) or the Indian Navy (Discipline) Act,1934 (34 of 1934) or
the Air Force Act (7 Geo.5.,C51)] but not to affidavits presented to any Court or Officer, nor to proceedings before
an arbitrator;

And it shall come into force on the first day of September, 1872.

27 The Act extended to the Union Territories of (1) Dadra and Nagar Haveli, w.e.f. 1-7-1965 (vide Regulation 6 of 1963);
(2) Goa, Daman and Diu (vide Regulation 11 of 1963); (3) Pondicherry w.e.f. 1-10-1963 (vide Regulation 7 of 1963) and
(4) Lakshadweep w.e.f. 1-10-1967 (vide Regulation 8 of 1965).

End of Document
 SECTION 3 OF THE INDIAN EVIDENCE ACT
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
SECTION 3 OF THE INDIAN EVIDENCE ACT

Section 3 contains important definitions of the terms that are used in the Indian Evidence Act.

End of Document
 CLASSIFICATION OF EVIDENCE
Nageshwar Rao: Indian Evidence Act, 2e 2015
V Nageswara Rao

Nageshwar Rao: Indian Evidence Act, 2e 2015 > Nageshwar Rao: Indian Evidence Act, 2e 2015 >
Chapter I Introduction, Definitions and kinds of Evidence

Chapter I Introduction, Definitions and kinds of Evidence

DEFINITIONS
CLASSIFICATION OF EVIDENCE

Evidence may be classified as follows:93

93 This is based on the classification made by James Fitzjames Stephen himself. See, Select Committee First Report,
quoted in Chitaley and S. Appu Rao, The Indian Evidence Act, Corpus Juris of India, Vol. 1 (Nagpur, 1956), p.
Unnumbered (After Contents).

End of Document