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Report No. 69

Note of Dissent of Shri Sen-Varma

Should the Word "Admissible" be Substituted for the word "Relevant" in Certain Sections of the Indian Evidence Act, 1872?

I am sorry that I am unable to agree with the recommendations of my learned colleagues with regard to a few points mentioned below.

In the first place, I find it difficult to agree with the recommendations that in certain sections of the Indian Evidence Act, 1872, the word "admissible" should be substituted for the word "relevant" and that a definition of the word "admissible" should be given in the Act.

The recommendation is thus stated in para 6.99 of the Report:-

"In view of the inaccuracy of the present terminology as discussed above, the better course, in our view, would be to avoid the term "not relevant" in those sections where what is meant is "not admissible". Whilst preserving the word "relevant" in sections.-16, we should, therefore, substitute the word "admissible" for the word "relevant" wherever the former appears to be more appropriate,- a definition of "admissible" being added, in section 3, as meaning "admissible in evidence".

My disagreement with these recommendations are several. The Indian Evidence Act, 1872, has been now in existence for more than a century. But uptil now lawyers, courts and judges have not experienced any difficulty in using the word "relevant" in various sections of the Act particularly wherever it occurs in sections 17-55 of the Act. When in practice not the least difficulty has been experienced in this regard and when all concerned know for all practical purposes the meaning of the word "relevant" and have become accustomed to it through long usage, we should, it is submitted, be slow and circumspect in changing the nomenclature on the view that there is some inconsistency, lacuna or inaccuracy in it.

We should not forget that life of the law is not always a logical code but it is always grounded in experience. Human life and affairs of human life cannot always be based upon strict logic and logical reasoning and even logic and logical reasoning sometimes vary from time to time, from place to place, from individual to individual, from community to community for various factors and causes which are endless in their variety and formidable in their complexity. Thus even among the masters of logic. Aristotle's logic is different from the logic of John Stuart Mill and John Stuart Mill's logic is different from the present day symbolic logic represented by Bertrand Russell or Johnson.

Then, there are differences between all these systems and Indian logic, ancient and modern: and there are differences between ancient Indian logic and modern Indian logic. Here it may suffice to say that we should go slow in changing words and expressions in law unless it is absolutely necessary to do so. Immanuel Kant in his First Critique- The Critique of Pure Reason, (under the heading "Transcendental Logic, Second Division. Book I: Section.- "Ideas in General")" issued a caution and warning in this respect, thus:-

"To coin new words is a pretension to legislation in language which is seldom successful: before recourse is taken to so desperate an expedient, it is advisable to examine the dead and learned languages, with the hope and the probability that we may there meet with some adequate expression of the notion we have in our minds. In this case, even if the original meaning of the word has become somewhat uncertain, from carelessness or want of caution on the part of the authors of it, it is always better to adhere to and confirm its proper meaning- even although it may be doubtful whether it was formerly used in exactly in this sense- than to make our labour vain by want of sufficient care to render ourselves intelligible."

More than one hundred and sixteen years ago John Austin in his Lectures on Jurisprudence while dealing with "Intention" in Lecture XIX observed almost in the same vein-"To discard established terms is seldom possible: and where it is possible, is seldom expedient. A familiar expression, however obscure, is commonly less obscure, as well as more welcome to the taste, than a new and strange one. Instead of rejecting conventional terms because they are ambiguous and obscure we shall commonly find it better to explain their meanings, or (in the language of Old Hobbes), "to snuff them with distinctions and definitions" (page 419 of Volume I of the 5th Edition, revised and edited by Robert Campbell).

The Special Committee on the Transfer of Property (Amendment) Bill, 1927, consisting of Mr. S.R. Das (then Law Member to the Government of India) Sir B.L. Mitter (subsequently Law Member to the Government of India), Sir D.P. Mulla (who also became the Law Member subsequently) and Justice S.N. Sen, in its Report submitted to the Governor General in Council observed in paragraph 10 as follows:-

"10. In the Bills submitted to us the policy which appears to have been followed was that no amendment should be attempted which would merely effect an improvement in wording, but that principles of importance which had been judicially recognised since the passing of the Act should be incorporated. In our opinion, it is a sound course to follow, particularly, in an Act which has been in force for forty-five years and to whose phraseology the general public and the legal profession have become accustomed. Again, it is not safe to alter any wording which has received judicial interpretation, when the interpretation has not led to any inconvenience in practice or miscarriage of justice.

We also agree that the Act must be amended to embody new principles. In the amendments which we propose we have also endeavoured to remedy any defect which has led to inconvenience or anomalous results. We have also acted on the principle that it is undesirable to attempt to provide in detail for every possible contingency. No elaboration can be exhaustive and the only result of over-elaboration would be to cramp the action of the courts and to encourage technicalities. Where there has been a conflict of decisions we have endeavoured to set it at rest."

On these pragmatic and practical considerations I think that in spite of the views to the contrary of some recent writers like Cross, Montrose and others, there is hardly any necessity for making any change of terminology as recommended by the majority in the Report. We may mention here that eminent old authorities like Taylor, Stephen and others did not find any difficulty in this respect.

In support of my objection to the recommended change I should also like to refer to the definition of the word "relevant" and to the provisions of section 5 of the Act so far as they are material for our purpose. The word "relevant" has been defined in section 3 as follows:-

"Our fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts". (Italics mine)

From this it is clear that the word "relevant" in the Indian Evidence Act, has not been used in its natural, ordinary or logical sense throughout. The words "said to be" and the words "in any of the ways referred to the provisions of this Act relating to relevancy of facts", should be carefully marked in this connection;
they show that the framers of the Act knew that the word "relevant" has not always been used in the Act in its natural, ordinary or logical sense and that in a few cases the word has been given an extended meaning to deal adequately with the multiplicity and variety of the facts, circumstances and problems which arise in judicial proceedings before the courts of law from day-to-day, so that even though somebody might not like the use of the word "relevant" in certain provisions of Chapter II of Part I of the Act, still when a fact is connected with another fact in, any of the ways referred to in any of the sections.-55 (both inclusive), then that fact is to be regarded (i.e. said) as relevant to the other fact.

This is exactly in consonance with what has been said in section 5 of the Act. The first paragraph of the section will make this clear.

"5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. (Italics mine).

The words in italics above are significant showing that evidence can be given not only of facts in issue as defined in section 3 but also of other facts which are declared to be relevant in the various sections of the Act. This clearly shows that even if a fact be not relevant from the standpoint of strict logic and reason still if by any provisions of the Evidence Act relating to relevancy, such a fact is declared to be relevant, then evidence can be given of that fact. In view of the provisions cited above it is difficult to see how the use of the word "admissible" is more appropriate than the use of the word "relevant", in some of the sections of Chapter II of Part-I.

It is well-known that the framers of the Indian Evidence Act drew heavily from Taylor's "A Treatise on the Law of Evidence" which even in the year 1872 acquired the status of a standard work on evidence. According to Taylor "relevance" is the test of admissibility. He has discussed this aspect of the matter in great detail in pages 211-251 of the 11th Edition (1920) and it eminently stands to reason that a fact which is not at all relevant to a fact in issue may not be admissible in evidence. How can a fact which is irrelevant can be made admissible to prove a fact in issue? Therefore it seems that Taylor was right when he laid down the proposition that relevance is the test of admissibility. At page 222 et seq Taylor observed-

"316. The rule confining evidence to the points in issue, not only precludes the litigant parties from proving any facts not distinctly controverted by the pleadings, but it limits the mode of proving even the issues themselves. Thus it excludes all evidence of collateral facts, which are incapable of affording any reasonable presumption of the principal matters in dispute, the reason being that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors from the points in issue, and to excite prejudice and mislead. Moreover, the adverse party, having had no notice of such evidence, is not prepared to rebut it.

The due application of this rule will occasionally tax to the utmost the firmness and discrimination of the Judge so that, while he shall reject, as too remote, every fact which merely furnishes a fanciful analogy or conjectural inference, he may admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble, light on the question in issue. And here it will generally be found that the circumstances of the parties to the suit, and the position in which they stood when the matter in controversy occurred, are proper subjects of evidence. The change in the law enabling parties to give testimony for themselves, rendered this proof of 'surrounding circumstances' still more important than it was in former times. In accordance with this doctrine it has been properly held, that, in an action for money lent, the poverty of the alleged lender was a very relevant fact, the evidence of which was admissible for the purpose of disproving the loan.

317. The most important class of facts which are excluded on the ground of irrelevancy comprises the acts and declarations either of strangers or of one of the parties to the action in his dealings with strangers. These are in the technical language of the law denominated res inter alios actae."

Then, Taylor cites cases after cases to show and prove that in every case relevancy is always the test of admissibility of evidence. In the index to the book Taylor clearly mentions in two places that relevance is the test of admissibility. Under the heading-"Admissibility" in the Index is mentioned "relevance as test of and under the heading "Relevance", relevance is spoken of a essential to admissibility and in both these places he has referred to pages 211-251 of his book. To prove this he has referred to a large number of cases to which it is unnecessary to refer here.

In view of what has been stated above it is difficult to agree with the thesis that there is a distinction and difference between admissibility of evidence and relevance of evidence. At least that does not appear to be the stand taken in the Indian Evidence Act, 1872. One may even agree with the proposition that a fact otherwise relevant may be excluded on practical considerations but it is very difficult to agree with the proposition that a fact not at all relevant may be admissible in evidence. In other words a fact which is relevant to another fact (FACT IN ISSUE) may be excluded on grounds of public policy but it is not possible to agree with the proposition that a fact having no relevance to the fact in issue can be admissible as evidence under the policy of the law.

In each of the cases of hearsay, opinion character, etc., if we examine them carefully, we can, in a very limited number of cases, notice some rational, reasonable and fairly strong connecting thread between each of the cases mentioned above and facts in issue to prove which in such special cases hearsay, opinion character, etc. are used in evidence to prove a fact in issue. If on examination, a rational and reasonable connection is, in the opinion of the Judge, found to exist between a collateral fact and a fact in issue, and if the court believes on the proof such collateral fact that the fact in issue exists or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists, then the court is justified in regarding the collateral fact as relevant and in admitting it in evidence.

This is substantially the definition of "Proved" as given in section 3 of the Act. In Article 2 of his Digest of the Law of Evidence, Stephen says: "that the Judge may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case"

This is exactly the reason for the exclusion except in a few exceptional cases, of hearsay evidence, opinion evidence, character evidence, etc. As Taylor says in paragraph 316 of his book (already quoted)

"he (the Judge) shall reject as too remote, every fact which merely furnishes a fanciful analogy or conjectural inference, he may admit as relevant the evidence of all these matters which shed a real, though perhaps an indirect and feeble, light on the question in issue."

Hearsay evidence, opinion evidence and character evidence etc. have been excluded in the Act because each of them merely furnishes a fanciful analogy or a conjectural inference in relation to the facts in issue. But in the few exceptional cases where they are admitted in evidence, they are so admitted because, they shed a "real, though perhaps an indirect and feeble light on the question in issue." In other words, even in such special cases there is some streak of relevancy between the collateral fact and the fact in issue. Hearsay with a few exceptions is excluded because of practical considerations on which the policy of the law is based, it is regarded as irrelevant. Such practical considerations are allowed to outweigh the principles dealing with logical relevancy.

These practical considerations may be taken to be chiefly-a statement made by an absent person cannot be tested by cross-examination of that person; that very few people can be trusted to repeat a statement that they may have heard in any but the very simplest cases: that admission of hearsay would open an easy way to fraud, and would then prolong proceedings by the production of unimportant matters in a way which would cloud the real issue. Moreover, in the case of hearsay evidence, opinion evidence, etc., the statement of the witness who gives such evidence does not represent his direct perception.

It may be pointed out as already stated that the concept of relevance of one fact to another is not a static one. This concept like any other human concept varies from person to person, community to community, place to place and time to time. "In an anarchical state of society", says Holland in his Jurisprudence (Eleventh Edition-1910) at p. 318, an injured person takes such compensation as he can obtain from a wrong doer, or, if strong enough, gets such satisfaction as may be derived from an act of revenge.

A political society, in the first place, puts this rude self-help under stringent regulation and secondly, provides a substitute for it in the shape of judicial process. Self-help is indeed but unsatisfactory means of redress". Here what is relevant in relation to the redress of the wrong done to the injured person is the superior physical strength of the injured man to that of the wrong doer.

Not only that, here the injured party being the judge in his own cause whatever he considers to be for his benefit, he regards as relevant for the purpose of deciding the issue. To suppress private revenge and to erect courts of justice and to compel everyone who is wronged to look to the courts for remedial rights is, however, task far beyond the strength of the State in this state of its formation. It is at this stage that the primitive savage, on being asked what was the difference between right and wrong, could say with a sense of pride that it was right when he eloped with his neighbour's wife but it was wrong when his neighbour eloped with his wife. (See Paul Vinogradoff's Common Sense in Law, pp. 18-19).

In a society where this is the standard of right and justice, the relevance of one fact to another (a fact in issue) is bound to be different from the concept of relevance in a more progressive society. We should not forget that the objects of the law of evidence, are, on one hand to limit the field of enquiry by the doctrine that certain classes of facts are already within judicial notice of the courts and by presumptions by which certain propositions are presumed to be sufficiently proved when certain other propositions have been established, on the other hand, to exclude certain kinds or facts as having too remote a connection with or too remote a bearing on the issue, or as incapable of being satisfactorily proved, or as coming from a suspicious quarter.

For the last mentioned reason certain classes of person or persons occupying certain relative positions are rendered incapable of being witnesses. In considering the question of relevancy of one fact (a collateral fact or as Bentham called it, an evidentiary fact) to a fact in issue is not always based upon purely logical principles. Thus the disclosure of any communication made by a client to his advocate in the course of and for the purpose of his employment as such advocate may be very pertinent and relevant for deciding any issue in a suit or proceedings but however, relevant such disclosure may be, an advocate is not at any time permitted except with his client's express consent, to make such disclosure.

There are many other similar provisions in the Evidence Act under which statements otherwise very relevant and pertinent for the determination of any issue in a suit are excluded from being put into evidence. They are excluded not because they are irrelevant but on grounds of the social policy of the law based upon larger moral and practical considerations.

I do not like to enter into a more elaborate and detailed discussions on this point. What I have already said will tend to show that the concept of relevancy of one fact to another fact is not an invariably absolute or static concept. It is liable to change and variation. What is regarded as relevant may in process of further evolution of our minds and thought, cease to be so and what is rejected as an irrelevant may be regarded as relevant. No definite hard and fast rule can be laid down in this behalf. Then there is nothing sacrosanct about the word 'relevant' or about the word 'admissible'. What we call a relevant fact was called by Bentham, as I have already mentioned, as evidentiary fact. He distinguished an evidentiary fact from a principal fact thus:-

"The term evidence, as has already been remarked is a relative term. Like other relative terms, it has no complete signification of itself. To complete the signification of it, to enable it to present to the mind a fixed and complete idea, the object to. which it bears a necessary reference must be brought upon the stage. I have to produce evidence. Evidence of what? Evidence of a certain fact or facts. Facts, then, matters of fact, are the subject-matter, the necessary subject-matter of evidence: facts in general, of evidence in general. Before we come to speak of evidence in detail, it will be necessary to say something of facts in general, considered as the subject-matter of evidence.

Of facts? Yes: but in what point of view considered? Not in every point of view, but in the particular point of view in which the contemplation of them is pertinent to the design and object of this treatise: not in a physical not in a medical, not in a mathematical point of view; not in a barren, and purely speculative, logical point of view; not in any point of view, but a legal. (Italics mine).

The facts then, or matters of fact, the species of facts, the individual facts, here under consideration, are those facts, and those only, concerning the existence or non-existence of which, at a certain point of time and place, a persuasion may come to be formed by a judge, for the purpose of grounding a decision thereupon.

Thus, then, the circle within which the class of facts in question is comprised, presents itself as a comparatively narrow one. In the next view that requires to be given of it, the extent of it will appear boundless. Nor indeed does it admit of any other limits than those which are set to it by the nature of the end or purpose, with a view to which the word of facts is brought thus upon the stage. Facts, then, considered as the subject-matter of legal decision, and for that purpose of evidence may be distinguished in the first place into principal and evidentiary. What is meant by the words principal fact, and evidentiary fact, has been seen in a former chapter. The question now is, what facts are to be considered principal facts, and evidentiary facts, with reference to a legal purpose.

By principal facts, I mean those facts which on the occasion of each individual suit, are the facts sought, for the purpose of their constituting the immediate basis or ground of the decision: in so much that, when a mass of facts of this description, having been sought, is deemed to have been found, the decision follows of course, whether any other .facts be considered found or not.

By evidentiary facts, I mean such facts as are not competent to form the ground of a decision of themselves, nor otherwise than in as far as they serve to produce in the breast of the judge a persuasion concerning the existence of such and such other facts, of the description just given, viz. principal facts.

Here, then it is that the circle expands itself, and seems to break all bounds. Under the term 'principal facts' when the mass comes to be analyzed and divided, facts of a particular description, and that a limited one will be seen to be comprised. But under the description of evidentiary facts, all facts whatsoever-at least all facts that are capable of coming under human cognizance-will be seen to be included. For there is no sort of fact imaginable, to which it may not happen to serve as evidence with relation to some principal fact. It is only by the consideration of the purpose for which the mention of them is introduced, that the view we are called upon to take of them is circumscribed." (Bentham, Works, Vol. VI, pp. 214-15).

If thus a fact which may be put in evidence and proved for the purpose of proving and establishing a fact in issue, that fact must have some logical and pertinent relationship or connection with the fact to be proved. The idea of that relationship or connection may vary from place to place, community to community or age to age but there must be a pertinent and cogent relationship and that relationship may in a good number of cases, be direct and immediate and in other cases it may not be so direct or immediate or so pertinent but some sort of relationship between the two must be there. Therefore a fact which has no connection to a principal fact or fact in issue cannot be admissible in evidence, even though we may use the word "relevant" in connection therewith.

The law fiat cannot make a fact admissible for the purpose of proving another fact, that is, a fact in issue unless there is some sort of relationship, immediate or mediate, between two. Therefore, in section 5 of the Evidence Act it has been laid down that evidence may be given in a suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others. And this provision of section 5 is in consonance with the definition of the word relevant" as given in section 3. I have already quoted that definition but it is worth repeating-"One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts."

Then, a fact may be logically relevant but may not be legally relevant and therefore cannot legally admissible in evidence, because its connection with the principal fact, that is, the fact in issue may be too remote or too feeble or because it would complicate the trial with the multiplicity of issues. It is true that the relevance is essentially a matter of logic; but it is the logic of inference in a specialised from under the influence of law as a practical social study.

Apart from suits, proceedings and disputes before courts of law, even in matters and situations of life in general whenever we take a decision on the basis of facts we draw some inference from the facts which we consider to have been proved and from such inference we come to a conclusion. If we look at the definitions of 'relevant', 'facts in issue', 'evidence', 'proved' and 'disproved', it becomes clear to us that in order that an inference as to the existence or non-existence of one fact may be rationally drawn from the proof of another fact, the connection between the two must be a relevant one. Now what does this relevant connection mean?

It means or it ought to mean that the relationship or connection between the two facts must be a logical relationship which in plain language means that it must be a casual connection or relationship. In other words, one fact must be related to the other as if it were either a cause or an effect of the other. Unless there is some casual relationship, we are not justified in calling one fact as being relevant to another fact. In the absence of a relevant connection between one fact and another in this sense, we cannot say that any result can necessarily follow the moment any relationship between the two is established. This is clear from the definition of the expression 'fact in issue'.

It has been defined as any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. The expression 'necessarily follows' in this definition is important as indicating a cause-and-effect relationship between the evidentiary fact and the principal fact. The definitions of 'proved', and 'disproved' also point to the same conclusion. A fact is said to be 'proved', when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

A fact is said to be "disproved" when after considering matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it does not exist. But proof of facts, inferences drawn from such facts and the conclusion as to any right, liability etc. based on such inference are based upon various causes and factors in life. Therefore in order that one fact may be regarded as 'relevant' that is, logically relevant to another fact, there must be a causal relationship between the two. Now this relationship between one fact and another may vary.

The relevancy of one fact to another or causal relationship of one fact or another to an ignorant tribal living in the jungle may be quite different from relevant relationship or causal connection between two facts to a civilised man. Various factors such as our heredity, our nature and our intelligence, our inherent mental structure our environments, our traditions, our training and education, the level of our understanding, knowledge and culture, our virtues, our sense of dharma, our moral wisdom, all these may influence our concept of relevancy quite differently from an aboriginal who living in 'the forest, believing in animism may regard a fact as not following necessarily from another proved fact but as the effect of the wrath of some super-natural power etc.

In this way instances may be multiplied. Thus the abstract proposition is that by the relevant relationship of one fact to another, what is meant is nothing but a causal relationship between the two and this may be called a logical relationship. Thus, concept of relevance and logical connection between an evidentiary (collateral) fact and a principal fact (fact in issue) is nothing but a causal relationship between the two so that from the proof of, the one, a legitimate inference as to the existence or non-existence of the other necessarily follow i.e. follow as an effect from a cause.

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