Tuesday, 5 July, 2022
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The Evidence Act: Amending Nine Sections

Dr. Shahjahan Mondol

The Evidence Act: Amending Nine Sections
Dr. Shahjahan Mondol

The Evidence Act of 1872 that we inherited from British-India through Pakistan is an existing law of Bangladesh. The law is important and peculiar in the sense that it applies to both civil suits and criminal cases which is a rare thing. The Evidence Act has been playing a vital role in establishing rights of parties or determining liabilities of the accused persons. Such an essential law, a one and a half century old Act, has unfortunately been containing some inhuman, unequal, discriminatory and unconstitutional provisions that deserve to be addressed. Such provisions are inconsistent with the Constitution of Bangladesh, particularly the equality provision enshrined in Article 27 and the non-discriminatory provision enshrined in Article 28 which are fundamental rights. Besides they are infringing the Constitution, the supreme law of the land; they are going against the international human rights norms as accommodated in the Universal Declaration of Human Rights, 1948 (UDHR) and the International Covenant on Civil and Political Rights, 1966 (ICCPR), an international treaty to which Bangladesh is a party. Last March 14, 2022 the Ministry meeting headed by the honourable Prime Minister Sheikh Hasina decided three things: (i) to delete the much objectionable section 155(4), (ii) to prevent asking objectionable character-related questions to a prosecutrix under section 146(3) and (iii) to make provisions for audio-video to be admissible as evidence. This is an admirable step taken by the Government but these three things are not sufficient. There is a necessity of bringing amendment to at least 9 sections which are categorically given below along with reasons followed by the new wordings or structure of the sections concerned. It should be mentioned that if the following recommendations to amend the Evidence Act of 1872 are complied with, the General Clauses Act of 1897 may also require some changes. The Ministry of Law, Justice and Parliamentary Affairs as well as the Law Commission may, if it thinks fit, address the issue and make the law precise.          

Regarding section 3: Due to a great advent of computer and digital technology beginning since the last half of the twentieth century (1960) a demand of audio and video evidence has been raised in the country. Definition of ‘document’ as enshrined in section 3 of the Evidence Act (No. 1) of 1872 contains some matters as evidence but not ‘audio-video’. Nevertheless different judgments are found to encompass ‘audio-video’ evidence while explaining or depending on section 63(2) of the Act. Tape-record has been made admissible as evidence in Sri Rama Reddy v. V. V. Giri AIR 1971 SC 1162:(1970) 2 SCC 340, and audio-video has been made admissible as evidence in Li Shuling v. R 1988 3 All ER 138. Still it is better, for showing respect to people’s demand, to include ‘audio-video’ as evidence in wordings in any section so that the thing becomes easily understandable and apparent. Recommendation: The words ‘or any matter captured and recorded in the form of audio or video by any computer or mobile phone or other digital method’ may be inserted in the definition of `document’ whereupon the definition may stand as follows:  ‘Document’ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, or any matter captured and recorded in the form of audio or video by any computer or mobile phone or other digital method, intended to be used, or which may be used, for the purpose of recording that matter.

Regarding section 37: Any statement of any fact of a public nature made in a recital contained in any Act of Parliament of the United Kingdom, besides our Parliament of Bangladesh, has been made relevant under section 37. No other foreign country than the UK has been honoured or given importance here. It is simply bearing Bangladeshi soft corner for or tendency of loyalty to the UK. Such trend and tendency of flattering any super power like UK should, as the Bangali people of the country desire, be avoided. Independence as well as freedom of Bangladesh has not been smoothly achieved rather it took a toll of Bangabandhu Sheikh Mujibur Rahman’s prudential leadership followed by twenty three year (1947-1971) torture upon him, oppression on the Bangali mass people, 3 million lives of the Freedom Fighters, rape and ravishment of 0.3 million women and mutilation of uncountable persons many of whom are still suffering physical and mental pain. Importance to no country other than Bangladesh should, therefore, be given under the present section of the Act. Recommendation: The words ‘in any Act of Parliament of the United Kingdom’ should be deleted from section 37.

Regarding section 44: Any judgment, order or decree obtained by ‘fraud’ or ‘collusion’ by any party to a suit or proceeding is cancellable under section 44. A party may show that the other party used ‘fraud’ or ‘collusion’ in the suit or proceeding and thereby obtained the judgment, order or decree. Then he can get it nullified by court. The theme of section 44 is correct and tolerable so far as it mentions ‘fraud’ because ‘fraud’ is played by one party by which the other party is kept unknown of any document or any act to be done by him for the suit or proceeding. ‘Collusion’, on the other hand, is reverse to `fraud’ because it intentionally involves both the parties whereupon both of them keep the court unknown of any such document or thing. None of them, therefore, should get the benefit of section 44, and none should get the scope of nullifying the judgment, order or decree obtained by their ‘collusion’ because each of them was involved in the `collusion’. It is established by Chauhana v. Gaya Prasad (AIR 1971 All 439). Recommendation: The words ‘or collusion’ should be deleted from section 44.   

Regarding section 69: This section also shows needless and destructive loyalty to the UK as discussed in point (B). Recommendation: The words ‘or if the document purports to have been executed in the United Kingdom’ should be deleted from section 69.

Regarding section 82: Unnecessary importance and loyalty to England and Ireland are shown in section 82. The section has made a compulsion on the courts of Bangladesh through use of the words ‘shall presume’. It provides that if any document, admissible in any English or Irish court without proof of any seal, stamp or signature, is produced before our Bangladeshi court the court shall presume all these things to be genuine. Recommendation: The entire section 82 should be repealed. 

Regarding sections 146(3), 153 and 155(4): Character related provisions are present in the three sections. Character is relevant in more four sections, 52, 53, 54 and 55. Section 155(4) deserves discussion first here. Among the three sections the most inhuman, degrading and worst one is 155(4) because it provides that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. It is clear in the section that the term ‘immoral character’ denotes her ‘sexual character’. Unfortunately it makes and keeps no scope to show that the man, the accused, was of generally immoral character. It could look good if the accused could be so shown. Taking the privilege of the section the opposition party or advocate is generally found to ask her sex related questions undermining her dignity and sense of prestige. What can, it is supposed, be more heinous than a legal provision on harassment of a victim of rape or ravishment instead of the accused? In this sense it is ultra vires the equality provision of Article 27 of the Constitution of Bangladesh which is a provision of everyone’s fundamental right to equality before law parallel to Articles 1 and 7 of the UDHR as well as Article 14(1) of the ICCPR.  The provision of section 155(4) is also an infringement of Article 28 of the Constitution as well as Article 7 of the UDHR and Article 26 of the ICCPR, that prohibits discrimination on ground, inter alia, of sex. The two instruments, UDHR and ICCPR, are part of international law. The Constitution is stipulated under Article 25 to show respect to the UDHR and Bangladesh is under obligation to implement the ICCPR. Recommendation: The entire section 155(4) should be repealed.

Section 146(3): The above mentioned four sections, 52, 53, 54 and 55, are to be kept in mind here. They also make character of parties relevant. The ‘Explanation’ to section 55 identifies ‘character’ as including reputation and disposition, and clarifies that evidence may be given only of ‘general reputation’ and ‘general disposition’. Conversely, ‘Explanation 1’ to section 54 necessarily makes provision that evidence may be given of ‘bad character’ where ‘bad character’ itself is in issue. It means that where bad character of any man or woman is in issue he or she may and should be asked question relating to his/her ‘immoral character’/’sexual character’, otherwise end of justice will fail. The provisions of these four sections seems, therefore, not unnecessary. Keeping alignment of sections 55 and 54 with section 146(3) the provision of asking witness questions to shake his credit by injuring his character may be considered and sustained. Still as it is a civilized notion that one shouldn’t be subjected to harassment by questioning him about his ‘immoral character’/’sexual character’ unless authorized by ‘Explanation 1’ to section 54 it is better to add the matter to the beginning section 146(3). It could be further better if section 146(3) is made subject to the ‘Explanation’ to section 55 whereby evidence might be given only of ‘general reputation’ and ‘general disposition’. Recommendation: The terms ‘subject to the ‘Explanation’ to section 55’ may be inserted in section 146(3).

Section 153: This section also permits questioning a witness in a manner tending to shake his credit by injuring his character. This should also be addressed for the reason mentioned in the paragraph supra. The section begins with the word ‘When’. Recommendation: The words ‘subject to the ‘Explanation’ to section 55’ may be inserted at the beginning of section 153 and set before the word ‘When’.

Regarding section 166: The section empowers the jury or assessors to put questions to witnesses in a manner a judge can do. But there is nothing called ‘jury’ or ‘assessor’ in Bangladesh. Recommendation: Section 166 should be repealed.

The recommendations made above may help strengthen the decision of the Ministry concerned to amend the Evidence Act of 1872 in view of matching it with the desire of the people of Bangladesh and making the law human, equality based and human rights friendly. It is eagerly expected that honourable Prime Minister Sheikh Hasina and her Ministry concerned shall take the recommendations into consideration and thereby take the Sonar Bangla of Bangabandhu Sheikh Mujibur Rahman one step forward for the wellbeing and welfare of the people at large, because the recommendations want, inter alia, to remove the British imperial nexus inserted in the law.

 

The writer is the Former Dean, Faculty of Law, Islamic University, Kushtia