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Colonialism, Critical Legal Studies, and the Indian Evidence Act

- Anmol Kohli


This paper argues that the law of evidence is susceptible to two arguments developed by legal realists and critical legal scholars: rule-scepticism and radical indeterminacy. Firstly, this is prefaced by a historical understanding of the Indian Evidence Act, 1872 (“IEA”) as a colonial project that navigated the conflict between codification and judicial discretion in controlling natives.

Secondly, it utilises the similar-fact evidence rule and the rule against hearsay to argue that the usage of judicial discretion allowed cases to be decided either way, suiting the political preferences of the judge. This invokes rule-scepticism, where the “law in action” goes beyond the “law in books”.[1]

Thirdly, it uses the same examples to argue that in the absence of institutional reform, there is no method of confirming if legal rules influence decision-making in bench trials. This invokes radical indeterminacy, where adjudication cannot lead to coherent decisions without ideological functioning.[2] Hence, it concludes that despite general obedience to its decisions, the law of evidence stands on uncertain foundations. Nonetheless, it suggests potential reforms to lessen the uncertainty associated with rules of evidence.

I. Colonialism, Adjudication, and IEA

American critical race scholarship argues that neutral rules of evidence structurally disadvantage minorities.[3] Creating “procedural truths” for popular acceptance was a political project that secured this disadvantage.[4] Instead, in India, it is assumed that codification creates equality.[5] Yet colonial experience demonstrates how neutral legal rules lead to unequal outcomes via judicial discretion.[6]

The codification project adopted legal formalism.[7] However, for Stephen, it was necessitated by the 1857 mutiny.[8] Codification implied imposing European values.[9] His IEA, therefore, upheld formal equality before law. When it came to adjudication, however, he maintained that Indians could not administer such a law.[10] Even after creating a liberal legal statute, colonial forces ensured that its adjudication remained unequal.

William Twining identifies a “rationalist tradition” of writers who “share…common assumptions” underlying dominant evidence scholarship.[11] Stephen finds a prominent mention here.[12] He assumed that rules could operate without discretion and lead to just outcomes in doing so.[13] However, his Bill codifying the common law was rejected.[14] Jurists in England sought to retain judicial discretion.[15] A century later, England would adopt codification only when significant discretion was preserved.[16]

Codification was a project designed to limit the inherent bias of judicial discretion. This became necessary as Indians were considered prejudicial beings who could not be trusted with the neutral task of adjudication. Back in England, however, discretion was considered necessary to reach just decisions. Hence, the contradictory reliance on judicial discretion in the law of evidence embodied the rule of colonial difference.[17]

Nearing independence, Indian nationalists sought to negate this difference. Therefore, they incorporated discretion into the IEA. They borrowed from newer tests of common law to interpret a code drafted before such tests. However, as none were binding on them, judges could pick those tests that justified their predetermined conclusions. Paradoxically, judges simultaneously cited contradictory common law tests with approval. Here, discretion allowed the possibility of using neutral legal rules to reach any conclusions preferred by judges.

After independence, the rule of (post)colonial difference emerged in the context of jury-trials. Postcolonial difference establishes “inherent” inequality between the local elite and common individuals.[18] Historically, the justification for holding evidence of general propensity and hearsay inadmissible was that a jury may be unduly influenced by them.[19] The judicial discretion in excluding such evidence was considered a procedural safeguard.[20] Indeed, scholars have argued for deleting these rules where only bench-trials take place.[21] In India, the abolition of jury-trials was based on suspicion against “common Indians who were swayed by prejudice. Jaffe emphasises the role of the judiciary in abolishing jury trials by their “antipathy to the common juror” who was considered “ignorant, illiterate, and corruptible” by them. The parallels with Stephen’s thoughts on Indian adjudicators are obvious.

Paradoxically, by applying these rules even in bench-trials, Indian legal culture demonstrates undue trust in judges to ignore their prejudices. Legal realism, however, would consider admitting evidence for one purpose and holding it inadmissible for another a superhuman task. India has continued to follow a common law system of adjudication without the jury, resting both issues of admissibility and final decision on the same judge(s). This was driven by the need for creating a postcolonial difference where “prejudiced” common people were separated from the elite adjudicatory process. Hence, the trial emerged as a spectacle where judges created procedural truths for distant public consumption.[22] However, they were free to use their conception of absolute truth for internal decision-making.

II. Rule-Scepticism and Discretion

The development of common law discretion in the similar fact-evidence rule, and its implications for India, provide reasonable grounds for rule-scepticism. Kenneth Graham argues that a central issue with evidence is a persisting “common law mentality” among judges, even after codification.[23] Judges emphasise precedent and commentaries over codified rules.[24] In India, this meant that the codification project would fail in its aim of reducing adjudication to a formalist rule-application.

As per the IEA, both general conduct (under Section 14 Explanation 1) and previous bad character (under Section 54) cannot be relevant facts. Despite a similar rule in the USA, Montré Carodine argues that race covertly acts as character evidence.[25] Beyond individual conduct, the supposed “character” of a race influences decision-making. It impacts investigatory procedure and judicial bias. This challenges the formalist conception of the trial as a site of rule-application.[26]

Facts are relevant when they belong to “a series of similar occurrences”. Here, interpreting “similar” necessitates discretion. The inherently vague nature of the provision acted as a justification for Indian courts to borrow from common law. Following the common law test, courts began reading “strikingly” into the provision (Chandrakant Jha v State para. 21). It may be contended that here, discretion was preferable as it limited the wide ambit of the statute. However, preference aside, discretion was inevitable in judicial decisions.[27] Here, the provision was unworkable without a test defining similarity.

Even so, the “strikingly similar” test did not lead to consistent adjudication. From the perspective of consistency, the test rested on questionable foundations from its origins. In Makin, the court relied on past facts for which the accused had not been convicted. Evidence law is generally considered as relying on procedural truths. Yet this case ultimately used absolute truths as admissible evidence. One may argue that there is nothing wrong with relying on similar facts which have not received convictions. However, such an argument is prosecutorial. Further, it ignores the change in judicial narrative from procedural to absolute truths when it suits the prosecution.

The court went a step further in Boardman, where the other “facts” were not even proved, let alone having received a conviction. Whether evidence for one count became admissible for another was decided by judicial discretion (ibid 438E). Further, this case already contained the seeds for the later “prejudice” test.[28] While Boardman did not acknowledge this test, it emphasised the probative value of the similar facts.[29] Here, whether probative value of a similar fact outweighed prejudice to the accused was an issue left to judicial discretion (as applied in DPP v P). In other words, if the accused can be convicted easily by admitting some evidence, the judge can ignore prejudice. When judges hold such evidence admissible, they can solely focus on probative weight and ignore prejudice, as seen in the decision of Attorney-General of Hong Kong v Siu YS.

Jasmine Rose places faith in this test, arguing that “prejudice” should be widely defined to include racial prejudice.[30] However, this test expects judges, instead of the accused, to evaluate the prejudice caused to them. Such a notion of prejudice would always be subject to malleability depending on probative value. In any case, the IEA does not mention this balancing act at all. Tests which emphasise on evidence of “system” have also acted as cloaks for admitting evidence of propensity.[31] Here, discretion ultimately involves balancing convicting the guilty against acquitting innocents.[32]

The IEA specifies that hearsay is inadmissible under Section 60. In other provisions like Section 32, it posits exceptions to this general rule. Courts, however, have relied on the res gestae exception of common law. This exception has been criticised for embodying a masculine bias.[33] It favours immediate victim reactions – a masculine tendency – over delayed responses, observed among female rape victims.[34] Here, discretion allows judges to interpret the rule in a manner that leads to unequal gender outcomes.

It is not argued that Indian judges should have adopted legal formalism. This would have been impossible. Instead, certain rules of evidence under the IEA could not have led to coherent decisions without the usage of discretion. Further, the common law tests adopted by courts are also legally indeterminate. Weighing probative value against prejudice is a “deliberately ambiguous” act.[35] In this ambiguity, the politics of judicial discretion emerges. The striking similarity and prejudice tests, instead of merely expanding discretion, allowed judges to place their political preferences into legal rules. They furthered the primary purpose of legal argumentation in critical theory: hiding ideology.[36]

III. Radical Indeterminacy and Admissibility

This section argues that even if judges were not to use explicit discretion in interpreting rules, they could still reach conclusions contrary to said rules. Hence, there is no guarantee that the legal formalist idea of pure rule-application ever plays out in real life. This commonplace jurisprudential idea has special implications for evidence law. Unlike other laws, it relies considerably on legal formalism.[37] This is due to the artificial notion of admissibility that occupies primacy in evidence law.

To say that some evidence is admissible implies recognising it as procedural truth. Rules may hold evidence admissible for one aspect and inadmissible for another. Courts have rightly critiqued this practice as expecting unrealistic “mental gymnastics” from juries (Boardman 459D). However, they have been more muted on whether the same opinion applies to judges. Despite such critique, courts continue characterising aspects for which evidence is inadmissible as “forbidden reasoning”.[38] This section argues that judges can and do use this reasoning. Even if judges hold something inadmissible, nothing stops them from considering it in their final decision, even if only subconsciously.[39] Any system of evidence that does not presuppose these issues rests on shaky foundations. However, this issue may be partially mitigated by institutional reform.

From this perspective, the similar-fact evidence rule and the judicial discretion used for its interpretation cease to possess significant value. The purpose of this rule is considered as avoiding unfair prejudice to the accused.[40] This prejudice is assumed to be caused by the jury, which places “undue weight” on such evidence.[41] This purpose does not apply to bench trials. Once an argument for the relevancy of a fact is made before judges, it is placed in their mind. No legal notion of admissibility can undo this. Hence, the application of legal rules rests not just on the discretion stated in judgments, but also the unstated discretion in judges’ minds. Judgments that explain the legal reasoning adopted by a judge cannot account for this.

T.R.S. Allan argues that this problem can be mitigated by warning juries against using similar facts for reaching conclusions based on disposition.[42] In bench trials, this involves judges warning themselves. This negates the purpose of procedural safeguards in order to ensure convictions where the evidence possesses high probative value.

A similar logic applies for hearsay. As per Laurence Tribe, hearsay exceptions are made where one leg of his “testimonial triangle” is satisfied.[43] This is done to balance the probative value of the hearsay with the potential for it being untrue.[44] However, if judges are unaccountable, probative value is all that matters. In R v Bedingfield,[45] the hearsay statement was not sufficient for conviction. Hence, the case did not turn on its admissibility. In such situations, no cost is incurred in exclusion. However, if probative value is sufficient for forming the final brick of evidence in the wall of conviction, judges may “admit” hearsay in their minds.

In Boardman 459, Lord Cross observed that trying all charges together would “pay lip service” to the similar-fact evidence rule, while effectively rejecting it. This section argues that this is the case in all situations in bench trials. Judges justify their political decisions using the rhetoric of autonomous legal decision-making.[46] Even in situations where the prejudice test does not apply, when judges perceive sufficient probative value from a similar fact, it can be labelled as relevant to an issue. When it is not, it can be labelled relevant only to general disposition and dismissed.[47]

Robert Margolis argues that the similar-fact evidence rule should be removed for bench trials. This is because any prejudice that this rule seeks to exclude would have already affected judges.[48] However, the rule may still be a better option than the alternative of not having it at all. Instead, this paper suggests certain reforms which can reduce legal indeterminacy.

A possible reform would be to ensure that different judges hear the issue of admissibility and make the final decision.[49] However, this assumes that judges do not correspond with each other over cases. Further, this reform assumes that judges would be able to decide admissibility-issues using autonomous legal reasoning. Empirical studies demonstrate that judges routinely fail to ignore inadmissible evidence.[50] This is despite any warnings they may receive. This demonstrates that judges are ultimately not different from juries, despite the elitist emphasis on the “judicial mind” in Indian jurisprudence. Further, juries possess the safeguard of group decision-making, which is lacking in bench trials.[51]

Adding to this problem, the Supreme Court has held in Bipin Shantilal Panchal that objections should be decided during final arguments. This unnecessarily prolongs the judge’s interaction with the evidence before it is held inadmissible. After such a prolonged interaction, the possibility of subconscious bias increases significantly. Hence, another reform would be hearing admissibility-objections at the beginning of the trial.


Despite the above reforms, the core claim of rules of evidence being indeterminate still stands. It is still not possible to ensure that adjudication consists of formalist rule-application. Perhaps, it never will be. Evidence law is configured in a manner that this claim creates negative implications for it. However, it need not lead to such implications. Judges can begin by acknowledging the inevitability of prejudice. This would ultimately involve rethinking the possibility of an autonomous legal domain of admissibility and relevance. New rules must acknowledge that even if these ideas continue to exist, they cannot be considered autonomous. Instead, legal notions of admissibility ultimately turn on the extra-legal notions of the adjudicator. Proceeding on such less optimistic assumptions can lend new force to the law of evidence.

[1] Mark Tushnet and Jennifer Jaff, ‘Critical Legal Studies and Criminal Procedure’ (1986) 35(2) Catholic University Law Review 361. [2] Duncan Kennedy, A Critique of Adjudication (HUP 1998) 18. [3] Jasmine Gonzales Rose, ‘Toward a Critical Race Theory of Evidence’ (2017) 101 Minnesota Law Review 2243. [4] ibid 2251. [5] Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in British India’ (2005) 23(3) Law and History Review 631. [6] Radhika Singha, A Despotism of Law (OUP 1998) 170 discusses how the colonial critique of Islamic law was that it possessed excessive discretion which would now be countered by the rule of law. However, Singha demonstrates that discretion was ultimately preserved after codification as well. [7] Eric Stokes, The English Utilitarians and India (OUP 1959) 222. [8] ibid 269. [9] KJM Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (CUP 1988) 147. [10] Kolsky (n 5) 679. [11] William Twining, Rethinking Evidence (2nd edn, CUP 2006) 36 considers philosophers of the law of evidence as embodying an “optimistic rationalism” anachronistic with the development of legal theory in other areas of law. [12] ibid 56. [13] James Fitzjames Stephen, An Introduction to the Indian Evidence Act (Thacker Spink and Co 1902) 13 distinguishes legal and logical relevance, while upholding the former. This assumes that judicial decisions can be based on autonomous legal criteria for relevance. [14] GD Nokes, ‘Codification of the Law of Evidence in Common Law Jurisdictions’ (1956) 5(3) International and Comparative Law Quarterly 350. [15] ibid. [16] Isha Jain, ‘Codification and Reform of the Law of Evidence in the United Kingdom’ (2017) 38(2) Statute Law Review 256. [17] Partha Chatterjee, The Nation and its Fragments (PUP 1993) 18. [18] ibid 74. [19] PB Carter, ‘Forbidden Reasoning Permissible: Similar Fact Evidence a Decade after Boardman’ (1985) 48(1) Modern Law Review 29. [20] ‘Other Crimes Evidence at Trial: Of Balancing and Other Matters’ (1961) 70(5) Yale Law Journal 766. [21] Roderick Munday, ‘Comparative Law and English Law’s Character Evidence Rules’ (1993) 13(4) Oxford Journal of Legal Studies 592. [22] Robert Burns, A Theory of the Trial (PUP 1999) 11. [23] Kenneth Graham, ‘What’s The Matter with Evidence?’ (1992) 25(3) Loyola of Los Angeles Law Review 780. [24] ibid. [25] Montré Carodine, ‘Contemporary Issues in Critical Race Theory: The Implications of Race as Character Evidence in Recent High-Profile Cases’ (2014) 75 University of Pittsburgh Law Review 679. [26] Burns (n 23). [27] Jerome Frank, Law & The Modern Mind (Routledge 2017) 149. [28] Michael Hor Yew Meng, ‘Similar Fact Evidence in Singapore: Probative Value, Prejudice and Politics’ (1999) Singapore Journal of Legal Studies 53. [29] Peter Mirfield, ‘Similar facts – Makin out?’ (1987) 46(1) Cambridge Law Journal 90. [30] Rose (n 3) 2305. [31] Carter (n 19) 35. [32] Meng (n 33) 52. [33] Aviva Orenstein, ‘“My God!”: A Feminist Critique of the Excited Utterance Exception’ (1997) 85(1) California Law Review 159. [34] ibid. [35] Meng (n 33) 48. [36] Kennedy (n 2) 19 argues that “determination by law” only hides “determination by ideology”. [37] Michael Seigel, ‘A Pragmatic Critique of Modern Evidence Scholarship’ (1994) 88(3) Northwestern University Law Review 1009. [38] Carter (n 19). [39] Frank (n 29) 119. [40] TRS Allan, ‘Similar Fact Evidence and Disposition’ (1985) 48(3) Modern Law Review 254. [41] ibid. [42] ibid 259. [43] Laurence Tribe, ‘Triangulating Hearsay’ (1974) 87(5) Harvard Law Review 947. [44] ibid 966. [45] (1879) 14 Cox CC 341. [46] Kennedy (n 2) 20. [47] Meng (n 33) 54. [48] Robert Margolis, ‘Evidence of Similar Facts, The Evidence Act, and the Judge as Trier of Fact’ (1988) 9 Singapore Law Review 103. [49] Meng (n 33) 60-61. [50] Andrew Wistrich, Chris Guthrie, and Jeffrey Rachlinski, ‘Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding’ (2005) 153(4) University of Pennsylvania Law Review 1251. [51] ibid 1323.


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