The Indian Evidence Act and Recent Formulations of the Exclusionary Discretion in Singapore: Not Quite Different Rivers Into the Same Sea

Abstract

Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 continues to govern the law of evidence in almost a dozen common law jurisdictions today. But the fundamental features of the IEA would undoubtedly be considered anomalous when viewed against modern notions of relevance and admissibility, foremost of which are the fact that the statute represents an attempt to codify relevance exhaustively in an inclusionary, rather than exclusionary way, and the judicial discretion to exclude relevant evidence finds no obvious expression in any of its provisions. The IEA has thus had a strained relationship with the common law, especially since judicial powers assume much greater importance in the latter realm. Recent legislative and jurisprudential developments in Singapore (a jurisdiction which has adopted the IEA) have attempted to minimise the applicability of the statute’s relevancy provisions and confer greater discretionary powers on the courts to exclude evidence. The result is that there are now at least five formulations of the court’s general power to exclude evidence, and this article considers if these formulations cohere inter se, and whether any of them can co-exist harmoniously with the IEA’s admissibility paradigm, given that its raison d’être has always been to simplify the admissibility process through exhaustive codification.

Keywords: Indian Evidence Act, Exclusionary Discretion