All ghodas are not equal before the law: An irreverent look at Bharatiya Sakshya Adhiniyam, 2023

Legend has it that the artist Michelangelo had invited the mayor of Florence for the unveiling of his masterpiece, the statue of David. When the cloth was removed and the good people of Florence stood in awe, the mayor frowned. 

The artist was wise and immediately said, “Lord Mayor it is evident that my work has not met up to your high standards. Please do not hesitate to share your view.” 

The mayor finally felt important and said, “No…No…it is almost perfect. However, the nose is a tad bit long.” 

Michelangelo swiftly went for his chisel and undertook to solve it in a minute. He commanded his shocked apprentice to bring forth a ladder.  Then he whispered to him, “get some stone dust too.” The master climbed up and began to pretend to chisel the nose. He made sure that everyone could see the stone dust fall from his palm, which he had concealed as he continued with the pretense. Concluding his charade, he descended and asked the mayor for his approval. “Now it is perfect! See I had told you,” the chief guest cried out in joy.

On a hot, humid day, on March 12, 1872, thirteen members of the Viceroy’s Executive Council had met in Calcutta to debate and pass the Indian Evidence Bill. John Strachey said “India owed to Stephen a great debt of gratitude,” predicting “a really great improvement in the administration of justice in India."

The Indian Evidence Act, 1872 (IEA) authored by Sir James Fitzjames Stephen, is the statute equivalent of Michelangelo’s statue which rests in the Accademia Gallery in Florence, Italy.

Stephen, as the legal member of the Viceroy’s Executive Council, had truly imbibed the soul of India which stood reflected in his two most significant contributions to Indian law - the IEA and the Indian Contract Act.

That Stephen’s Law of Evidence that had continued in the Indian subcontinent and many Commonwealth nations well into the post-colonial era is indeed a fitting recognition of the genius of this work!

Despite being a colonial exercise, Stephen’s law reflected the lived realities of India. See the illustration to Section 48 of the IEA which deals with opinion as to the existence of right or custom. It reads as follows:

“The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section."

It is either a tribute to Stephen or a sad commentary on the makers of the brand new Bharatiya Sakhsya Adhiniyam (BSA) that Section 48 of the IEA, recast as Section 42 of the BSA, continues with the same illustration!

Whether it was a genuine mission to decolonise and nationalise India’s laws or the burning desire to leave a permanent imprint on India’s governance, the Modi-led government ensured that the previous parliament jettisoned the Penal Code, the Code of Criminal Procedure and Stephen’s IEA in favour new codes with sanskari Hindi names.

These codes have courted controversy, especially in South India, with many legal challenges even to their names. It is stated that Karnataka and West Bengal are also in the process of consultations to bring state amendments to these codes.

A common refrain of naysayers has been that by and large, these criminal codes are old wine in new bottles. Most provisions from the old law have been bodily lifted with minimal changes and only their placement has been rearranged.

Again, in a tribute to Sir Stephen, the IEA has suffered minimal damage in its legislative reassignment surgery. The decolonisation exercise commendably has removed words like “ravished”, “banya” and “lunatic” replacing it with the more acceptable “rape”, “business person” and “unsound mind” respectively.

Also, references to cities like London and Lahore in the various “illustrations” have been substituted with the more palatable Itanagar and Nagpur. “Vakils”, “pleaders”, “attorneys” and “barristers” have made way for the desi “advocate”.

The removal of the territorial application clause in the BSA is, however, baffling.

The BSA has primarily absorbed the amendments made to the IEA over time to address electronic evidence. Given such minimal reshaping, many have thought out loudly on what was the necessity for such a wholesale replacement and substitution of Sir Stephen’s masterpiece?

In the scheme of the Penal Code and the Evidence Act, the “illustrations” have played a crucial role aiding courts in interpreting the nature, scope and amplitude of the provisions. The revisionists of amritkaal have perhaps, in recognition of this, continued with this legislative style of listing “illustrations” in the Sanhitas.

In fact, I wish to examine some of the mindless reproductions, omissions and revisions in the “illustrations” of the BSA to conclude that the jettisoning of Stephen’s statute was as meaningless as the mayor’s critique of David’s nose.

A statute of 1872 certainly would risk being ‘dated’. If at all the IEA had to be put to a reassignment surgery, this was a historic opportunity to rid it of all anachronism. Yet, if one sees the various illustrations, the amritkaal drafters could not transition from “letters” as tools of communication to emails, “clubs” as weapons of hurt to automatic pistols, “shipwrecks” as means of disasters to “air crashes”, “indigo” as an item of trade to “indigo airlines tickets”.

Shockingly, indexation for inflation is also done selectively. For instance, the illustration to Section 34 of the IEA refers to a claim of ₹1,000. One can imagine the value of such a claim in 1872. In the BSA copy-paste, the amritkaal drafters have mechanically and blindly in the illustration to Section 28 of the BSA gone along with the same amount. Do these wise men think in 2023 India “A” would sue “B” for “one thousand rupees”?

The drafters of BSA seem to be untouched by inflation; why else would they, while copy-pasting Section 96 of the IEA into Section 99 of the BSA, remember to replace the confusing Hyderabad in Deccan and Hyderabad in Sind to Ramgarh in Rajasthan or Ramgarh in Uttarakhand and yet forget to revalue the “white horse” which Stephen had valued at ₹1,000 in 1872? I would love to purchase a horse from these amritkaal drafters in today’s day for ₹1,000 and will not even mind if it is not white!

It is not that all horses have received equal treatment at their hand. When it came to Section 93 of IEA on ambiguous documents, Stephen’s ₹1,000/1,500 rupees horse has suddenly become ₹1,00,000 /1,50,000! Mercifully, horses, unlike humans, cannot claim equal treatment under the law!

One of my favourite bloopers in the BSA which exposes the complete non-application of mind is when the framers cut and paste Section 94 of the IEA into Section 97 of the BSA. They forget a tiny detail. Stephen’s illustration of selling 100 bighas in Rampur, while kosher in his time, becomes problematic in amritkaal as under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, a person cannot own more than 66 bighas!

In the illustration to Section 156 of BSA, dealing with “contradictory answers”, the framers have dropped Calcutta and Lahore from Section 153 of Stephen’s Act for Goa and Varanasi. While I might be a little sad that my place of birth has been dropped, I am even far sadder that with these new illustrations, the “contradictions” in the new law still remain for the next generation!

Sanjoy Ghose is a Senior Advocate of the Delhi High Court.