Report No. 94
Besides this, we may mention yet another feature of the Indian legal system that might be appropriately referred to in the present context. The topic of admissibility of confessions in criminal cases has in other countries provided a fertile ground for the exercise of judicial discretion to exclude evidence obtained unfairly. But, in India, the subject has been treated elaborately in a chain of sections in the Evidence Act,1 thereby removing this particular topic from the area of discretion and narrowing down the judicial creativity. Hence, in India, the question whether a particular confession can, or cannot, be admitted on the record falls to be determined almost exclusively by the statutory law and interpretation thereof, rather than by drawing any principles originating in uncodified law. "Justice, equity and good conscience" has been almost barren in this area of the law.
This is not the place for setting out the gist of the sections of the Evidence Act relating to confessions.2 The Law Commission has had occasion in the past to analyse, as well as consider, these provisions in detail, in its comprehensive Report on the Evidence Act.3 The point that is now being made is that matters which, if there had been no codified law of evidence, would probably have been dealt with in a more elastic manner by the exercise of the discretion of the court to exclude certain evidence have in India, been pre-empted by statutory provisions enacted on specific topics, of which confessions are one important example.
1. Section 24-30, Indian Evidence Act, 1872.
2. Sections 24 to 30 Indian Evidence Act, 1872.
3. Law Commission of India, 69th Report (Indian Evidence Act, 1872) forwarded in May 1977.