Adjective Law/Procedural Law

The law of evidence is largely a part of adjective law as opposed to substantive law. Adjective law concerns procedure and practice in courts as contrasted with substantive law, which concerns the definition of crimes, rights, duties, liabilities, etc. Adjective law prescribes the pleading procedure and proof by which the substantive law is applied in practice. It is the machinery by which the law is set in motion.

The rules relating to pleading and procedure are contained in the Civil and Criminal Procedure Codes. On the other hand, ‘proof,’ the remaining branch of adjective law, deals with the law of evidence. The Evidence Act 1872 is a law of procedure, and changes in it are retrospective (1930 All 561). For instance, a person is accused of murder. How murder is defined in the Penal Code is substantive law. But how the murder would be proved—this is to be done by the law of evidence.

Adversary System

In general, trials (both civil and criminal) under our system reflect the adversary system, as contrasted with the inquisitorial system, which is also termed a continental system. Under the adversary system, based on ‘accusatorial procedure’ and the important presumption of innocence that prevails in the common law legal system, parties, and their representatives have the primary responsibility for finding and presenting evidence in courts. Cases are tried on evidence adduced by parties. The judge does not generally investigate the facts; he acts as an umpire between parties rather than as an inquisitor.

Codifying Act

The Evidence Act is a codifying Act. It has codified the rules of English law of evidence with such modifications as are rendered necessary by the peculiar circumstances of this country. The object of codification was that the law should be ascertained by interpreting its language instead of, as before, roaming over a vast number of authorities to discover what the law is and extracting it by a critical examination of the prior decisions. Another object of the codification of evidence was to introduce a more correct and uniform rule of practice than was previously in vogue. With that end in view, the three main principles that underlie the law of evidence are as follows:

• Evidence must be confined to the matters in issue;
• Hearsay evidence must not be admitted, and
• The best evidence must be given in all cases.

The Code is not Exhaustive

Though the Act is intended to be a complete code, it is not exhaustive, and cases have arisen for the solution of which principles of common law are resorted to. The term that the Evidence Act is a codified and consolidated law does not mean that the Act is an exhaustive statute on the law of evidence. The Evidence Act does not contain the whole of the rules of evidence.

There are several laws relating to the subject of evidence that supply the omissions in the Evidence Act and supplement its provisions. Examples may be taken from the Bankers Books Evidence Act 1891, the Commercial Documents Evidence Act 1939, the Limitation Act 1908, sections 19 and 20, Civil Procedure Code 1908, Order XXVI. Section 2 of the Act saves rules of evidence contained in any statute, Act, or regulation in force.

Consolidating Act

The Evidence Act is a consolidating Act. This is because it has repealed all rules of evidence in previous statutes, Acts, or regulations. The result is that none can employ any kind of evidence not specifically authorized by this Act. No court can apply rules of Muslim or Hindu law of evidence or principles of equity in matters of evidence. Thus, if evidence is tendered, the court is to see whether it is admissible under the Evidence Act.

Again, no rule about the relevancy of evidence contained in the Evidence Act is affected by any provision in the Criminal Procedure Code or any other enactments unless it is so specifically stated in the Code or it has been repealed or annulled by another statute. The act of consolidation of the law of evidence is closely allied with the act of ‘codification,’ which means to put into the form of a code or to digest or to systematize. The history of the law of evidence in British India before the passing of this Act reveals that there was neither a code of the law of evidence nor were there any consolidated sets of rules to be acted upon.

Lex Fori

The law of evidence is the Lex Fori (law of the forum/country where proceedings take place), which means that evidence is a matter governed by the law of the country or forum in which the proceedings take place. If foreigners are a party to a suit or case in any court in Bangladesh, they cannot insist upon their law of evidence being applied in the court of Bangladesh. The courts of Bangladesh will follow only the evidence law of Bangladesh.

Thus, the lex fori determines all questions relating to the admission or rejection of evidence. If a contract was signed in the UK or the cause of action arose in the UK or any other country, but the suit is filed in Bangladesh (because of a jurisdiction clause in the contract or both parties agreed so), all evidence matters are to be determined by the law of evidence of Bangladesh and not of the UK or any other country where the cause of action arose (lex loci actus). Even where a piece of evidence is received from abroad, its admissibility shall be determined by the provision of the Evidence Act (39 Cal 164).

Law of Proof of Facts

The Evidence Act is largely a law of proof of facts. The function of the law of evidence is to lay down rules and principles according to which the facts of a case can be proved or disproved before a court of law. What facts may and may not be presented as evidence; what fact is or is not admissible as evidence; what is or is not sufficient proof—these are the essence of the law of evidence.