Report No. 69
X. Trends in Reform and Conclusion
26.48. One or more of these objections have been found to be acceptable and treated in some countries as indicating the need for reform.
26.49. Direction of reform.-
Of course, there is a difference of opinion as to he direction which reform of the hearsay rule should take. Since the multiple goals of the rules of evidence, such as, determination of truth, certainty of result, administrative trial efficiency, and fairness to the parties, seem to clash most uncompromisingly at the hearsay rule,1 perhaps these differences of opinion will ever be resolved.
1. Murray The Hearsay Maze: A Glimpse at some Possible Exits, (1972) 50 Can Bar Rev 1.
26.50. Three possible solutions may be considered:
(1) abolish the rule against hearsay and admit all hearsay;
(2) admit hearsay possessing sufficient probative force, but with procedural safe-guards;
(3) revise the present system of class exceptions.1
As regards the first course (admission of all hearsay), we have not been convinced of the wisdom of abandoning the traditional requirement of some particular assurance of credibility as a condition precedent to admitting the hearsay declaration of an unavailable declarant. The rule against hearsay, notwithstanding all that has been said against it, is based on sound principle, and we cannot conceive of its total abolition. Every rule restricting the scope of legally admissible evidence necessarily leads to the exclusion of matter which may have some probative value. In that sense, it is a restrictive rule. In a few cases, a restrictive rule may even shut out truth. The question whether a particular restriction is or is not sound, depends or, a balancing of considerations.
1. Federal Rules of Evidence (U.S.A.). Note of the Advisory Committee (1974) 34 Lawyer: Edn. ld, p. cli. (151)
26.51. We are of the view that the particular rule under consideration (hearsay) is justified, on a balance of considerations, and departure therefrom should be made only where there is a circumstantial guarantee of trustworthiness, coupled with necessity. This rules out the first course, namely abolition.
26.52. As regards the second course (abandonment of the system of class exceptions in favour of individual treatment in the setting of the particular case, accompanied by procedural safeguards), we note that that course has been suggested in the U.S.A.,1 but not adopted. Admissibility would then be determined by weighing the probative force of the evidence against the possibility of prejudice waste of time, and the availability of more satisfactory evidence. The bases of the traditional hearsay exceptions would be helpful in assessing probative force.2
1. Weinstein The Probative Force of Hearsay, (1961) 46 Lowa L Rev 331, referred to in Feder Rules of Evidenc.- Note of Advisory Committee, 34 Lawyers' Edn. 2d, p. 151.
2. Ladd The Relationship of the Principles of Exclusionary Rules of Evidence to the Problem Proof, (1934), 18 Minn. L Rev 506, referred to in Federal Rules of Evidenc.- Note ( Advisory Committee, 34 Lawyers' Edn. 2d, p. 151.
26.53. Procedural safeguards to accompany it would consist of notice of intention to use hearsay, free comment by the judge on the weight of the evidence, and a greater measure of authority in both trial and appellate courts to deal with evidence on the basis of weight.
26.54. We do not, however, favour this approach to hearsay, as it would involve too great a measure of judicial discretion, minimize the predictability of rulings and enhance the difficulties of preparation for trial.
26.55 & 26.56. Approach adopted.-
In the end, we favour a general rule excluding hearsay with specific exceptions, meant to provide for cases where necessity coupled with circumstantial guarantee of trustworthiness justifies the making of an exception. These exceptions-to deal with the aspect of necessity-recognize that the required information is available only through one who reports a statement made by another person, and that the original declarant cannot be subjected to the conditions usually imposed on a witness. But the exceptions should also postulate that in the circumstances of the case there is some guarantee of truth which would be a reasonable substitute for the ideal conditions under which an ordinary witness gives his evidence. The central question, thus, to be considered in determining whether an exception should be made or not, is this-
To what extent will the reception of the information, under conditions which do not satisfy the usual protective tests, serve to accomplish the objectives of the trial, and yet not expose the trier to an appreciable danger of being misled ?
26.57. The problem, thus, resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions.1
1. Federal Rules of Evidence (U.S.A.). Note of the Advisory Committee (1974), 34 Lawyers' Edn. 2d, p. cli. (151).
26.58. Since hearsay testimony proceeds not from the personal knowledge of the witness, but from the repetition of what the witness has heard others say, the witness at trial is an inferior substitute for the original declarant. Opportunity to observe demeanour is what, in a large measure, confers depth and meaning upon oath and cross-examination.1
1. Federal Rules of Evidenc.- Note of the Advisory Committee, 34 Lawyers' Edn. 2d, p. 179 (clause xxix).
26.59. In particular, the experience of common life does not favour any view chat it would be safe to act on hearsay. No doubt, in common life, necessity often makes people act on hearsay, when they do not have the time or opportunity to perceive facts for themselves. But this mostly relates to conduct which one has to undertake in one's self interest. For example, if one hears about a fire in the neighbourhood, or if, in a village, one hears about an impending attack by dacoits protective or defensive measures will naturally be adopted without waiting for verification of the information received. Similarly, in a matter concerning the family and its reputation and welfare, one has usually to act on information obtained through others.
There is, however, a vital difference between acting on such information to one's self-interest (on the one hand) and deciding disputes which might affect the fortunes of third persons for a life time. Even in ordinary life the risks consequential on acting, on hear say are not inconsiderable. Many friendships have been broken, or relations strained, by reason of those concerned rushing to hasty decisions on unverified information reported secondhand. It would not, therefore, be far from the truth to say that experience in common human affairs warns one to be cautious while acting on hearsay.
26.60. As regards the lessons of history, it is well-known that one of the crucial battles in Indian history-the 3rd battle of Panipat was lost because of misreported information as to the fate of the leader of the campaign.1 The leader was informed that his son had been killed-an information which was false. Other examples of the dangers of acting on hearsay could be drawn from history; it would be pedantic to multiply them.
1. 3rd Battle of Panipat.
26.61. Best's views.-
One of the writers1 on Evidence points out that instead of stating as a maxim, that the law requires all evidence to be given on oath, it should state that the law requires all evidence to be given under personal responsibility. He adds that even if the oath were abolished, the rule rejecting secondary evidence ought to remain exactly as it is. In other words, evidence which is not connected by the responsible testimony of a person who could be contradicted by the party against whom it is offered, is to be rejected.
1. Best on Evidence, (1922), pp. 416, 424.
26.62. Elsewhere, the same author1 has described the rule against hearsay evidence as an illustration of the broader principle that persons are not to be affected by the acts or words to which they were neither party nor privy, and which they had no power to prevent or control-Res inter alias acta alteri nocere non debet.
1. Best on Evidence, (1922), p. 96, para. 112.
26.63. We may state that the question of modifying or widening the scope of specific exceptions to the rule against hearsay has already been considered at the appropriate place.1
1. Section 32.
26.64. It was stated in the last paragraph of Taylor1 on Evidence, in his 12th Edition:
"The student will not fail to observe the symmetry and beauty of this branch of the law, under whatever disadvantages it may labour from the manner of treatment, and will rise from the study of its principles convinced with Lord Erskine that with some few exceptions they are founded in the charities of religion in the philosophy of nature-in the truths of history and in the experience of common life."
We think that this is certainly true of the rule against hearsay, as codified in the Indian Evidence Act.
1. Taylor on Evidence, 12th Edn., quoted in Book Review in (April 1932), 73 LJ 291.
26.65. So much is the importance of the rule recognised in India that even in regard to industrial tribunals, it has been held1 that while any person can give evidence about what he heard, yet if it is to be used for proving the truth of that statement, then, it would be hearsay and not admissible for that purpose. Where a fact is sought to be proved, even before a domestic Tribunal, it must be supported by statements made in the presence of the persons against whom an enquiry is held, and if that statement is made behind the back of the person charged, it ought not to be treated as substantive evidence; this is one of the basic principles which cannot be ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
1. Management of Municipal Corporation of Delhi v. The Presiding Officer, Labour Court, 197 Lab IC 771 (Despande and Rangarajan, JJ.) (noted in the Yearly Digest, 1973) p. 803.
26.66. It may be that the hearsay rule, in its present form, is the result of a conglomeration of conflicting considerations, modified by historical accidents. Or, it may be that it represents the mitigation of a rigid rule by numerous rigid exceptions.1 However, it cannot be denied that the rule recognises the fact that when there is a chain of inferences to be drawn from the utterance of a person who is not subject to contemporaneous cross-examination in court, a chain leading to an inference about the act or phenomenon which that utterance is supposed to deal with, the chain becomes weak with every increase in the number of links in the chain. This appears to be a fundamental consideration.
1. Mc Cormick The Border Land of Hearsay, (1930) 39 Yale LJ 489, 504.
26.67. To quote Lord Normand.1
"The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour wood throw on his testimony is lost."
1. Teper v. R., 1952 AC 480 (486): (1952) 2 All ER 447 (449).
26.68. Traditionally, the inaccuracies which might creep in whenever there is a judicial investigation of facts, are attributed to the four testimonial infirmities of ambiguity, insincerity, faulty perception and erroneous memory.1 It seems to be too radical a step-and a step uncalled for-to disregard these infirmities.
1. Morgan Hearsay Dangers and the Application of the Hearsay Concept, (1948) 62 Harvard Law Review 177, 178.
26.69. Stephen's view as to dangers of hearsay.-
Stephen, describing the dangers of hearsay, has stated:1
"It would open a wide door to fraud. People would make statements for which they would be in no way responsible, and the fact that these statements were made would be proved by witnesses who knew nothing of the matter stated. Everyone would thus be at the mercy of people who might choose to tell a lie, and loose evidence could neither be tested nor contradicted. Suppose that A, B, C and D give to E, F and G a minute detailed account of a crime which they say was committed by Z: E, F and G repeat what they have heard correctly. A, B, C and D disappear or are not forthcoming.
It is evident that Z would be altogether unable to defend himself in this case, and that the Court would be unable to test the statements of A, B, C and D. The only way to avoid this is to exclude such evidence altogether,2 and so to put upon both Judges and Magistrates as strong a pressure as possible to get to the bottom of the matter before them. It would waste an incalculable amount of time. To try to trace un-authorised and irresponsible gossip, and to discover the grains of truth which may lurk in it is like trying to trace a fish in the water."
1. Stephen's Introduction to the Indian Evidence Act, pp. 162-163: Woodroffe, p. 76.
2. Emphasis added.
26.70. Aspect of personal presence.-
To what Stephen has written, we may add that when a witness in court offers evidence regarding a matter within his own knowledge, he is under oath and subject to cross-examination and in the personal presence of the judge. If he reports the utterance of another, he is, as to the fact and content thereof, in exactly the same situation as if he were reporting any non-verbal event of which he has knowledge.1 His oath and cross-examination, however, are guarantees only that he is himself speaking the truth, and not at all that the person whose utterance he is reporting was speaking the truth. When the fact and content of such person's utterance, regardless of its truth, are relevant and material, there is no reason for excluding the testimony of the witness concerning them.
But when the utterance is offered for its truth, then the witness is testifying only to its fact and content, and the utterer is testifying to the matter asserted in the utterance. As the utterer is not under oath and is not subject to cross-examination, and is not before the court, his testimony is ordinarily deemed too untrustworthy to be received. If such testimony is to be admitted, it must be because there are some good reasons for not requiring the appearance of the utterer, and some circumstances of the utterance which perform the functions of the oath and the cross-examination. In other words, it must be under some specific exception to the rule against hearsay based on a circumstantial guarantee of truth. This is our approach, and consistently with that approach, our recommendation as to the rule against hearsay preserves intact the rule as such in section 60.
1. Note in (1922) 153 Law Times 187, 188.
26.71. Amendments in England.-
We are aware that in England, statutory provisions enacted recently have gone far in changing the law for civil cases, and a few changes have also been made in regard to criminal cases. We may, as a matter of information, refer to the English statutory law on the subject in brief. The legislative framework for reform of the law of hearsay in England is extremely complicated, mainly owing to the fact that the statutory provisions on the subject are to be found in a number of enactments. Some complexity also results from the situation that some of the statutory provisions are confined to civil cases, and some of them are confined to criminal cases.
For civil cases, the most important provisions are contained in the Civil Evidence Act, 1968, as amended in 1972. For criminal cases, the important provisions are contained in the Criminal Evidence Act, 1965, and the Criminal Evidence Act, 1967. For our purpose, it is not necessary to quote the sections of the various statutes. In order to get a broad picture of the reform effected, it will be more convenient to draw attention to some of the salient features.
26.72. Civil cases.-
For civil cases. the Civil Evidence Act, 1968, may be described as achieving c partial abolition of the rule against hearsay. In this context, we may refer to four of its principal features. In the first place, the Act makes what may he conveniently described as first-band hearsay statements admissible, subject to certain conditions. In the second place, it allows second-hand hearsay statements to he received in evidence, either where the statements are contained in a record or in a few other cases.
In the third place, where the maker of the statement is called as a witness in court, the Act gives to the court an exclusionary jurisdiction, and similar exclusionary jurisdiction is also conferred on the court where the statement was made in earlier proceedings. In the forth place that Act contains certain provisions designed to prevent the party against whom a statement is tendered from being taken by surprise by its being adduced at the trial. The Act must be read with relevant Rules of the Supreme Court Order 18. Rules 21 to 34.
26.73. The main topics dealt with in the English Act of 19681 (applicable only to civil cases) are as follows:
|Section 2, Civil Evidence Act, 1968.||Admissibility of out-of-court statement as evidence of facts stated.|
|[To be read with Order 38, Rules of Supreme Court]|
|Section 3, Civil Evidence Act, 1968.||Witnesses' previous statement.|
|Section 4, Civil Evidence Act, 1968.||Admissibility of certain records.|
|Section 5, Civil Evidence Act, 1968.||Admissibility of statements produced by computers.|
|Section 6, Civil Evidence Act, 1968.||Provisions supplementary to sections 2 to 5.|
|Section 7, Civil Evidence Act, 1968.||Admissibility of evidence as to credibility of mater etc. of statement admitted under section 2 or section 4.|
|Section 8, Civil Evidence Act, 1968.||Rules of court.|
|Section 9, Civil Evidence Act, 1968.||Admissibility of certain hearsay evidence formerly admissible at common law.|
1. Civil Evidence Act, 1968.
26.74. Analysis by Cross.-
The position under the above Act of 1968 (as read with the Rules) may be thus stated1 in its broad features. In civil cases a statement made by someone why is not called as a witness is, by agreement of the parties, admissible as evidence of any fact stated. It is also admissible without such agreement, provided the following conditions are fulfilled:
(a) The statement was either made in a document or is proved by the direct oral evidence of any person who either heard or otherwise perceived it being made;
(b) the maker of the statement is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or can not with reasonable diligence be identified or found, or cannot reasonably be expected to have any recollection2, of matters relevant to the accuracy of the statement, having regard to the time which has elapsed since it was made. (This condition can, however, be relaxed by the court)3.
(c) the party desiring to give the statement in evidence has served the notice required by rules of court on all other parties to the proceedings4. (This condition can however, be relaxed by the Court)5.
2. The above conditions do not apply to informal admissions and, where second hand hearsay is involved, to the proof of reputation6.
3. The court has a discretion to admit a statement, coming within clause 1 above, notwithstanding that the conditions specified in clauses 1(b) and 1(c) have not been fulfilled.
1. Assistance has been partly taken from Cross on Evidence, (1971), p. 100, Article 37.
2. Order 38, rule 25, Rules of Supreme Court.
3. See infra.
4. Civil Evidence Act, 1968, section 5, paras..-2.
5. See infra.
6. Section 9 of the 1968 Act.
26.75. Criminal cases.-
This is a brief statement of the important features of the position as to civil cases in England under the Act of 1968. Two sections of the Criminal Justice Act, 1967, affect the reception of documentary hearsay. Section 2 of the Act deals with committal proceedings, and provides for the reception of written statements on the same footing as oral evidence, if certain formal requirements are met-copies are provided to all parties, and no objection is made.
26.76. Section 9 of the Act of 1967 is far broader, and provides for situations other than committal proceedings. Section 9 begins with the same phraseology as section 2, i.e.-
"In any criminal proceedings, other than committal proceedings, a written statement by any person shall be admissible as evidence to the like extent as oral evidence to like effect by that person".
26.77. Then follow certain formal requisites, similar to those contained in section 2, such as, signing and notice. If neither party objects within seven days of service of a copy of the statements, the statement becomes admissible under this section. The parties may agree before, or during, the hearing to receive a statement although the requirements for service of a copy of the statement have not been met. Forms for service of notices under this section have been prescribed1.
1. Magistrate's Courts Rules, 1968, rule 58; and Practice Direction by the Lord Chief Justice (1969) 3 All ER 1033.
26.78. It may be noted that in relation to civil cases, such changes were introduced long ago-in 1938. After the Criminal Evidence Act of 1965, and the Criminal Justice Act of 1967 took effect, the rules regarding hearsay statements became-to put the matter roughly-identical in civil and criminal cases in the two areas covered by the Civil Evidence Act, 1938. Statements made "in the ordinary course of business" and documentary hearsay were generally receivable in civil and criminal trials, subject, of course, to the qualifications previously noted. In other areas of hearsay, the common law prohibitions and exceptions remained largely in effect until modified by statute.
26.79. Comment on suitability of English amendments in relation to India.-
Whether these amendments made by statutory provisions in England are theoretically desirable or not, is a matter which we need not go into again.1 But it must be pointed out that the amendments are complicated in nature. In England, such complicated provisions would not create serious practical problems. The law is administered by Judges of the High Court, except in cases-mostly relating to monetary claims of small value-which are within the jurisdiction of the county courts. The number of judges administering the law of evidence in civil cases in England is limited. The position in India is radically different, and the provisions made in England, which are of a fairly cumbersome and complicated character, may, for that reason, create difficulty.
1. See discussion as to how far changes are needed in the rule against hearsay, supra.
26.80. It may also be pointed out that so far as criminal cases are concerned, the amendments made in England are of a very limited character1, and it would not be inaccurate to say that in regard to the points covered by these amendments, the position in India, under the Indian Evidence Act read with the provision in the Code of Criminal Procedure relating to evidence given by the accused, is not, in substance, different. In so far as the English Act of 1967 contains provisions relevant to inquiries in proceedings for commitment of the accused, these have no practical importance in India, because, under the new code of Criminal Procedure, "commitment" proceedings are formal only, and no inquiry into the merits is contemplated by the Code before an accused is committed to the sessions.
1. The Criminal Evidence Act, 1898; the Criminal Evidence Act, 1965, and the Criminal Evidence Act, 1967.
26.81. and 26.82. Conclusion.-
To revert to the question which we raised at the outset of this chapter, we may, in the light of the above discussion, record our conclusion that we do not consider it desirable to make any basic changes in the rule against hearsay.