Shreya Sharma
The 185th law commission report was drafted in the year 2003 by Sri Vepa P. Sarathi. This report is a review of The Indian Evidence Act, 1872[1]. It is one of the most comprehensive reports on the Indian Evidence Act, 1872 as said in the report. This report was made because the government failed to implement the changes made in the 69th law commission report and the report was sent back to the law commission only on the ground of lapse of time before it was implemented.
Why it was reviewed?
As mentioned by the report Law of Evidence is one of the most important laws administered by our civil and criminal courts. But since 1872, when this act was enacted the time was different along with the situation but after so many years things got changed. There has been a marked transformation in human rights jurisprudence in the whole world. After seventy years, basic principles of human rights were converted into the declaration of human rights,1948 along with this many acts got reformed according to time and situation in need. Due to the same reason, the government decided to reform the laws and the proposed amendments are intended to conform to new standards.
Recommendations made in the report
There are certain recommendations made by the law commission. I’ll highlight some of the important recommendations made by the law commission in this report.
- Sections 24 to 29: These five sections of the Indian Evidence Act, talk about the confession made by the accused. In section 24, it is said that confession made by inducement, threat, or promise, when irrelevant in the criminal proceeding. The law commission recommended to amend this section and add more words like coercion, torture, and violence as a ground to reject the confession. In the 69th law commission report, it suggested incorporating of section 26A to make all confessions made to senior police officer admissible in the court of law irrespective of the nature of the offense. 185th law commission report recommendation differs from the 69th law commission report according to which such provision will be unconstitutional as it challenges the validity of articles 14 and 21. It also said that it will be contradicting the views of the supreme court and the Keher Singh case[2]. however, it proposed certain amendments concerning hostile witnesses conspiracy and accomplices’ evidence. Section 27 was proposed to be an exception to sections 24 to 26. The word ‘or’ was added to deal with the facts discovered from statements by those in the custody or not in the custody. The words ‘distinctively’ and ‘so much of such information’ proposed to be removed and statements can be taken as evidence only if not made under threats, cruelty, violence, and torture but facts discovered by inducement will be admissible.
- Section 123,124 and 162: These articles deal with affairs of state, official communication, and production of documents respectively. The law commission accepted the recommendation of the 69th and 88th reports which were similar to each other and they did this by taking into consideration the changes made in law as declared by S.P Gupta. They recommended only one change which is instead of an appeal from subordinate courts on the question as to affair of state under section 123, there should be a reference to the high court on the said question by a subordinate court.
- Section 112: Deals with birth during marriage and proof of paternity. The sole exception in the section was ‘non-access’, 185 law commission proposed recommendation to add blood group test and DNA test but only in stringent conditions. Additionally, the benefit of presumption as to paternity in case of a person born in the continuance of marriage or two hundred eighty days of dissolution is proposed to be extended to children born out of the voidable marriage as well as void marriages. It was a controversial recommendation made by the law commission as in Kamta Devi v. Poshi Ram[3] supreme court of India refused the amendment of section 112, the introduction of DNA test to prove paternity.
- Section 68 to 71 and 90: Section 68 to 71 deals with attestor to prove documents, the recommendation was made to modify these sections and made applicable to wills only and should be removed from other documents as happened in the UK in 1938. Law commission further said to reformulate section 90 and introduce it along with section 90A where new rules were established for documents which are 20 years old or more and different rules for other documents. The rule for documents older than 20 years old, is it allowed the court to presume the document’s content, signature in person’s handwriting to be true and original in the court of law. Furthermore, Section 65A and Section 65B were prompt to be enclosed that created a special provision for the electronic record or any info by the electronic record contained within the paper, stored, copied, or recorded to be allotted and understood as a ‘document’
- Section 132A: This section is proposed to protect the media from being forced to reveal its sources of their publication. The only exception is the case where publication affects the sovereignty, integrity, and security of India, friendly relations with other countries, and contempt of court.
- Section 53A: This section was proposed as law commission found section 146(3) by amendment 2002 about questioning women’ s character narrow and to broader the privilege as mentioned in 172nd report section 53A proposed for the safety of women at workplace and it deals with questioning about the character of women in the issue of consent or her previous sexual relationships will not be relevant.
- Section 108 and 108A: This section talks about proving a person is dead whose whereabouts are not known, the presumption is changed by the law commission and it says at the end of the 7 years a person should be considered dead if not heard of him unless the person who wants to prove he is alive do so. Further, a new provision was made 108A about the simultaneous deaths, a specific provision was suggested if both the spouse die in the same accident or calamity then it is proposed that the claims are made to the domain of one companion, the other companion, indeed in case he or she is the younger one, ought to be assumed to have predeceased, so that the children of younger one don’t take away the property of other companion (spouse), in every case of simultaneous passing. Usually the position in UK and USA. There’s further exemption proposed by us, where the younger companion is the sole heir or one of the beneficiaries.
Conclusion
There are some other changes too recommended by the law commission. It is important to understand that the commission tried to build a great advisory body and analyzing every aspect of the act but if we see it more broadly the law commission analyzed and reviewed the 69th law commission report to see if it is still valid to be get implemented. Various recommendations made in the 69th law commission report are accepted to some extent, but few modifications are also made to them. Many suggestions were made but only a few of them was implemented, the government could not add everything that was recommended. The 69th report was very old and the recommendations made about technology and technological evidence had to be admissible. It took approx 30 years for the Indian government to implement new recommendations including both 69 and 185 law commission reports. This was indeed a great job done by the commission. They did an exhaustive study for more than 950 pages and made the report in one year.
Sources
- Rachit Garg, An analysis of 185th law commission (Feb 20, 2021, and 8:30 PM) https://blog.ipleaders.in/analysis-185th-law-commission-report/#:~:text=justice%20and%20peace.-,Background,change%20in%20human%20rights%20jurisprudence‘.
- Tarun Jain, 185th Report of the Law Commission of India: A Critical Analysis (Feb 20, 2021, and 8:30 PM) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133053
- https://lawcommissionofindia.nic.in/reports/185threport-parti.pdf
[1] The Report titled ‘The 185th Report on the Review of the Indian Evidence Act, 1872’ of the Law Commission of India was submitted to the Ministry of Law, Justice and Company Affairs on 13th March 2003.
[2] Kehar Singh And Anr. Etc vs Union Of India And Anr 1989 AIR 653, 1988 SCR Supl. (3)1102
[3] Smt. Kamti Devi & Anr vs Poshi Ram Respondent on 11 May, 2001