Analysis of the Loopholes in the Indian Evidence Act 1872

Evidence is an integral part of Indian legal, investigation and judicial system. The primary legislation governing evidence in India is the Indian Evidence Act 1872. This act has not been substantially amended to keep up with the changing social and technological advancements. The advancements which have been incorporated in practice in India has been through the direction of judiciary through legal precedents, however the same cannot be found in the the statute. In this paper, two such lacunas in the Indian Evidence Act have been analyzed and recommendations have been provided to improve the same. One of those lacunas is with Section 112, which decides on what forms a conclusive proof of legitimacy of a child born out of wedlock, but it does not consider circumstances like adultery, etc. and operates on morality. Moreover, there is no mention of DNA testing in this Act, because these tests had not been invented at the time of its enactment and no amendments to this section have been made since. As a result, there is no legislation governing DNA tests and laying down the correct procedure for the same. Another lacuna further explored in this paper is with respect to expert opinions. Who is an expert and what must be his/her exact qualifications and experience have not been mentioned in the Act. Further, there are no provisions for ensuring the unbiased nature of an expert and the scenario of contradicting expert opinions has been left to the discretion and best judgement of the judges. Also, there are very little provisions for the protection of experts in cases where their opinions are relied upon. Further, this paper studies and reviews the 185th report of the Law Commission of India and lays down drawbacks of this report as well as the lacuna of non-applicability of the recommendations made by the Law Commission.