Evidence Act: How far should the changes go?

On Aug 28, 2019, the panel of Justice Md Shawkat Hossain, Justice Md Ruhul Quddus and Justice ASM Abdul Mobin made an acute observation in a verdict on the case "The State Vs Oli." Parts of the full verdict of this death reference case that was published on 27 September, last year, read like this:

"This is also a demand of time that after unimaginable development of Information and Communication Technology and its use in commission of various offences, our Evidence Act should be made up-to-date by way of amendment or new legislation to deal with the developed technology as well as electronic record/document. In India some special provisions i.e. sections 65A, 65B and 67A are incorporated in their Evidence Act. Some other provisions, namely, sections 47A, 73A, 85A, 85B, 85C, 88A, 90A are also added to harmonise it for dealing with electronic record and definition of evidence as given in section 3 has also been amended."

This is the latest observation of high court division regarding our evidence act which was made in 1872 during the British period. 

Their observation says, Bangladesh's Evidence Act should be made up-to-date through an amendment or a new legislation to deal with the technological developments as well as electronic records or documents. While making the observation, the court cited "unimaginable development" of information and communication technology and its use in commission of various offences as one of the reasons behind the decision.
With this important observation of the High Court, it is clear how uncomfortable it is for our judiciary to hold on to a law that is one and a half centuries old as well as how important it is to reform the Evidence Act over time in this age of modern technology.

We have the Evidence Act of 1872 in the rules for dealing with evidence in tribunals and courts. There are basically two types of evidence. The first is the oral witness, which is what a certain witness describes in court, and the second is the documentary, which refers to the documents that are presented for the observation of the court.

The five examples given in Section 3 of the Act as "documents" do not include the current digital cameras, audio, video or audio visual records held on mobiles.

When no direct evidence is available of any incident (that includes crimes like killings) which might have occurred in a remote area of ​​the country, CCTV camera footage and videos captured on mobile phones can play an important role as evidence in the case.

Since the use of electric devices as evidence is not mentioned in the five documents under Section-03 of the existing Evidence Act, people seeking justice, namely the victim and his family are being deprived of justice during the trial. 

For this reason, the Evidence Act needs to be updated by amending the existing law on the content of digital evidence. Time has changed, our laws need to reflect that. We need to amend our laws now to eliminate confusion about the acceptability of electronic witnesses.

Photo: Collected

Special tribunals, such as the Cyber ​​Crime Tribunal, the Speedy Trial Tribunal Act, the ICT Act and the Digital Security Act, have direct instructions for the use of video footage, but not in the general law.

When acts such as the Digital Security Act 2016 and the Information Technology Act 2006 were passed, we needed to make the Evidence Act, Penal Code, Bankers' Books Evidence Act, etc. digitally relevant which did not happen.

As the types, strategies and means of crime change with the advancement of technology day by day, it is necessary to make arrangements for the trial of all new types of crimes by enacting laws in a timely manner and that is the need of the hour. Otherwise, the criminals will be able to commit crimes and the culture of impunity will reappear.

When India enacted the Information Technology Act in 2000, it amended the relevant provisions of the Evidence Act of 1872 to make it digitally modern.

Not only the Evidence Act, but also the Penal Code of 180 and the Bankers Books Evidence Act of 1891 had been amended at the same time with the Information Technology Act. Only we did not correct the act.

Now let's come to a different section of the Evidence Act.

Under Section 155 (4) of the Evidence Act, when a man is prosecuted for rape or an attempt to ravish, it may be shown that the woman was of generally "immoral character" to help the accused. The clause violates various international charters. It becomes difficult to punish the culprits in such cases. Allegations of rape are usually filed under the Women and Child Abuse Prevention Act. Because the lawyer of the accused wants to take "unethical" advantage of this section of the law. 155 (4) is an obstacle for the victims of rape who are seeking justice.

That section should not remain according to the constitution. The law dates back to the colonial period. The provision is a reflection of the Victorian concept. Now there are opportunities for DNA testing too. In rape cases, the DNA law can be applied to evidence.

I will end the article by mentioning an incident of January 13, 2020. On the day, a four-day workshop on 'Use of Digital Evidence in Courts' was organized by the US Embassy in Dhaka and the UK High Commission. Judges and prosecutors of Bangladesh took part in this workshop. Judiciary officials from the United States and the United Kingdom took part as well. Speaking as the chief guest on the occasion, Chief Justice of Bangladesh Syed Mahmud Hossain said, "It is necessary to update the Evidence Act which is more than one hundred years old. That law of 1872 is undoubtedly playing an important role in the judicial process till now. However, in the context of the rapid development of science and technology in the 21st century, there is a need to change this law." 

According to him, the obstacles to the introduction of digital evidence should be removed which will help the judges and the investigators.Therefore, it is very important to change and amend the Evidence Act without wasting time.

Ibrahim Khalilullah is an Investigative Broadcast Journalist at Jamuna Television; Dhaka, Bangladesh. He is also an International Fellow & Member at IRE (Investigative Reporters & Editors); Columbia, US

Disclaimer: The explanations given and views expressed in this article are the author's own and TBS does not necessarily endorse nor support those.