Open Access Research Article
THE APPLICATION OF “THE INDIAN EVIDENCE ACT, 1872” IN TRIBUNAL PROCEEDINGS
Published Paper
Article Details
THE
APPLICATION OF “THE INDIAN EVIDENCE ACT, 1872” IN TRIBUNAL PROCEEDINGS
AUTHORED
BY - HRISHI KAPADIA[1]
3rd
Year BBA LLB (Hons.)
MIT
WPU School of Law, Pune
Abstract
In order to enable circumventing the
trappings of the court, including time and money investment, various
legislations have provided for the constitution of quasi–judicial authorities
or Tribunals, to ease the burden on the courts and ease the justice-seeking
mechanism for the aggrieved. This paper shall explore the applicability of the
provisions of the Evidence Act, 1872 explicitly and implicitly, in the
proceedings before various tribunals constituted at different times; including
the Debt Recovery Tribunal (constituted in 1993), “The National Company Law
Tribunal” (constituted in 2016) and “The National Green Tribunal” (constituted
in 2012), in light of their relevant statutes. The aim of the paper is to
identify the extent of the applicability of the provisions of “The Indian
Evidence Act, 1872” both explicitly and implicitly through the established
procedure, in proceedings before the Tribunals. Further, the paper shall
analyze how impactful the extensive or restricted applicability of these
provisions is upon the delivery of justice – keeping in mind the time and
resource factors. Furthermore, the paper shall evaluate the efficacy and
success of each of the three tribunals and analyse how much of that result is
attributable to the procedural laws of India, including “The Indian Evidence
Act, 1872”; “The Code of Civil Procedure, 1908” and “The Code of Criminal
Procedure, 1973”.The final aim is to ascertain how much of “The Indian Evidence
Act, 1872” is being followed by these tribunals and whether this factor impacts
their efficacy.
Introduction
Evidence law deals with the statutory
framework governing the presentation, interpretation and importance of evidence
in judicial proceedings, both civil and criminal. Evidence on its own refers to
any statements or documents which provide relevant information to the case at
hand either by proving or disproving a certain contention/allegation before a
judicial authority. Owing to the rising population, changing market dynamics,
advancement and evolution of different fields and development of businesses,
among other factors of causation, the number of cases pending before the
different courts in the judicial hierarchy, is seeing an exponential rise which
ofcourse has resulted in extensive delays in the judicial process.
In order to reduce the burden on the
courts and make seeking justice a simpler and faster process, specialized
tribunals have been introduced in the last few decades, which are focused on
particular areas of law and classes of disputes. The fundamental idea behind
creating these tribunals as quasi–judicial authorities, is to enable escaping
the trappings of the court. The term trappings of the court refers to the time
investment, resources investment and complexity of the traditional judicial system
wherein procedural delays are inescapable and irrefutable.
It can be argued that the application
of “The Indian Evidence Act, 1872” is a major contributor to these trappings of
the court, along with the application of “The Code of Civil Procedure, 1908”
and “The Code of Criminal Procedure, 1973”. The biggest contributor, however,
is the sheer volume of cases and the shortage of judicial infrastructure and
judges to adjudicate disputes.
In order to circumvent these
trappings of the court, Tribunals operate in their own independent wing in the
judicial system. They are exempted from the requirements to follow statutory
provisions strictly and frame their own procedure to a large extent, which is
best suited to handling the nature and volume of disputes brought before them.
While the procedure and rules may be based on the existing statutory framework
mentioned above, they are allowed to sway from the straight and narrow in the
interest of speedy justice.
1. The Debt Recovery Tribunal
1.1.Constitution and Jurisdiction
The Debt Recovery Tribunal has been
constituted under the Recovery of Debts and Bankruptcy Act, 1993[2],
to deal with the recovery of debts owed to banks and other financial
institutions.[3]
Furthermore, under The Insolvency and Bankruptcy Code, 2016, the Debt Recovery
Tribunals are also empowered to handle matters relating to the insolvency of
individuals and partnership firms within their territorial jurisdiction[4];
that is, any suit or claim against the individual or partnership debtor can be
initiated before The Debt Recovery Tribunal.[5]
1.2.Procedural Framework
The Debt Recovery Tribunal is
expressly exempted from the provisions of “The Code of Civil Procedure, 1908”
and is permitted to formulate its own procedure based on the principles of
natural justice.[6] The Debt
Recovery Tribunal has complete autonomy in its operations and though empowered
as if a civil court[7], it is
free to deviate from the procedure laid down for civil courts. The Debt
Recovery Tribunal can summon witnesses and have them examined under oath[8];
it can mandate the production of documents[9]
including affidavits; it can authorize the examination of such documents[10]
to consider their evidentiary value, including evidence submitted through
affidavits[11].
While there is no express mention of
the applicability of “The Indian Evidence Act, 1872”, inferring from context,
it is fair to assume that The Debt Recovery Tribunal is free to interpret and
apply the provisions of “The Indian Evidence Act, 1872” as it sees fit, if at
all.[12]
However, to decide any matter, there
has to be evidence which supports the claim and/or refutes the claim. The Debt
Recovery Tribunal, as it deals with financial irregularities, is largely
focused on documentary evidence. All such documents relied upon by the
applicant/petitioner must be attached to the application submitted to The Debt
Recovery Tribunal[13].
This includes the documents/agreements detailing the nature of the debt, the
security provided, the valuation of the security, the failure to honour the debt
and all relevant correspondence between the lender and debtor, amongst others.
This requirement ties in with the importance of documentary evidence as
discussed in “The Indian Evidence Act, 1872”[14].
“The Indian Evidence Act, 1872” speaks about documentary evidence of two kinds[15];
primary evidence which is the original document itself[16];
and secondary evidence, which refers to certified copies / true copies etc.[17]
While there is no explicit mention of
primary or secondary evidence in regard to documents supporting the Debt
Recovery Tribunal application, applying the principles of natural justice and
reasonableness, the primary evidence is bound to be presented during
proceedings in order to support the claim of the applicant. Where primary
evidence is not available, secondary evidence may be relied upon to a certain
extent. Logically, the applicant is bound to have the original loan/credit
documents and proof of security provided.
However, in cases of very long-term
loans, the originals could have been misplaced or in case of collateral, it is
possible that the original documents concerning the collateral are with the
debtor and hence the applicant may not be able to furnish the primary evidence
in that regard. “The Indian Evidence Act, 1872” provides for such situations, inter
alia wherein if the original document is held by the opposite party[18],
or has been misplaced or destroyed[19],
the secondary evidence may be relied upon. The Debt Recovery Tribunal would
also likely follow these provisions in proceedings before it as it is the only
logical way forward in situations such as the ones highlighted above.
Furthermore, upon the filing of the
application before it, The Debt Recovery Tribunal has to issue a notice to the
defendant to disclose their assets other than those detailed by the applicant[20].
Once again, the reliance would be placed on documentary evidence such as title
documents, deeds of ownership, registration certificates etc. These details,
when submitted in the written statement by the defendant, must be accompanied
by the original documents relied upon by the defendant, or true copies thereof.[21]
If such secondary evidence is submitted, the originals would have to be
presented at trial for verification by The Debt Recovery Tribunal[22]
and for the opposite side to examine[23].
If the parties wish to lead evidence
through witnesses, the affidavits of such witnesses must be submitted along
with the application or written statement as the case may be, and only then can
the witnesses be presented during proceedings and be allowed to lead evidence.[24]
Pursuant to the filing of the
documents by both parties, The Debt Recovery Tribunal shall conduct a hearing
on the admissibility of the documents presented[25],
which would include arguments by both sides and possibly involve the parties
presenting their witnesses[26]
which would be subjected to examination – in – chief and cross–examination[27].
This procedure is comparable to that provided for in “The Indian Evidence Act,
1872”[28].
The procedure for the Debt Recovery
Tribunal cases also provides for the defendant to file an application for a
set–off of the debt, which is to be accompanied by the original documents
supporting his claim[29].
Similar to the provisions detailed hereinabove in regard to filing the
application and the written statement, this provision too, calls for the
presentation of documentary evidence as described in “The Indian Evidence Act,
1872”[30].
1.3. Evaluation
While the statutory framework
provides for a resolution period of six months[31],
the average time taken to pass a final order is somewhere between two[32]
to four years[33]. This
suggests that even though the disposal may be faster than it would have been if
the case was brought before the civil courts, it is still taking an excessive
amount of time. A part of this can be attributed to procedural delays but the
main contributing factors are the exponentially rising number of cases and the
shortage of capacity of The Debt Recovery Tribunals.[34]
Even though there are 39 benches of The Debt Recovery Tribunal operational
today[35],
the caseload is too immense for the intended purpose of speedy disposal to be
served. [36]
Furthermore, most of the Debt Recovery Tribunal cases are appealed before the
Debt Recovery Appellate Tribunal, of which there are only 5 benches to deal
with the mountain of appeals.[37]
The resolutions provided themselves
tend to be a staggeringly low proportion of the debts due, which is largely
attributed to the delay in processing[38],
making lenders desperate for a remedy and hence accepting unfair terms of
settlement from the borrowers. The Debt Recovery Tribunals are facing excessive
criticism for their failure to serve their purpose[39],
to defend which, The Debt Recovery Tribunals claim that the delays are largely
due to borrowers refusing to submit details of assets and the time taken to
liquidate assets to recover the loans[40].
Additionally, the distressed sales of such assets tend to fetch a below fair
market value of the asset and hence the loan recovery amount is lower.[41]
It is evident that the provisions of
“The Indian Evidence Act, 1872” are applied to a certain extent in proceedings
before The Debt Recovery Tribunal, but this extent is reasonably limited to
those necessary procedural requirements, contravening or eliminating which,
would be a violation of the principles of natural justice. It is possible that
a stricter implementation of the procedural laws such as “The Code of Civil
Procedure, 1908”, “The Code of Criminal Procedure, 1973” and “The Indian
Evidence Act, 1872” would result in more efficient operations of The Debt
Recovery Tribunal in this case, and could also help cover up the time lag
alleged to have been caused by the failure to furnish information.
2. “The National Company Law Tribunal”
2.1.Constitution and Jurisdiction
“The National Company Law Tribunal”
was constituted under “The Companies Act, 2013” for the purpose of dealing with
disputes involving companies and for contraventions of the statutory framework
governing such entities[42].
Liquidation and insolvency proceedings under the Insolvency and Bankruptcy
Code, 2016 are also dealt with by “The National Company Law Tribunal”[43].
2.2.Procedural Framework
“The National Company Law Tribunal”
is expressly exempted from the strict compliance of “The Code of Civil
Procedure, 1908” and is free to frame its own procedure, subject to the guiding
principles of natural justice.[44]
There are certain explicit applications of “The Indian Evidence Act, 1872”
specified in “The National Company Law Tribunal” Rules, but in addition
thereto, the procedure can be examined under the light of “The Indian Evidence
Act, 1872”.
“The National Company Law Tribunal”
though not a civil court, is empowered as a civil court[45].
This includes the authority to summon and enforce the attendance of witnesses[46];
mandating the production of documents[47];
requisitioning public documents or a certified copy thereof[48];
commissioning examination of witnesses and documents[49]
etc. All proceedings before “The National Company Law Tribunal” are deemed
judicial proceedings[50].
Pursuant thereto, attempting to use or actually furnishing false or fabricated
evidence is punishable[51]
with imprisonment up to 7 years and a fine[52].
Furthermore, causing insult or interruption to the functioning of “The National
Company Law Tribunal” or any of its officers, including the judicial members,
is punishable with simple imprisonment of up to 6 months and/or a fine up to
Rs. 1,000/-.[53]
Ensuring proper respect and regard
for “The National Company Law Tribunal”, the provisions relating to contempt of
court are applicable upon proceedings before it[54].
By creating criminal liability for failure to comply with orders/directions of
“The National Company Law Tribunal” for appearance before “The National Company
Law Tribunal”[55], for
furnishing of documents or any other evidence[56]
etc. Also, obstructing the enforcement of “The National Company Law Tribunal”
orders[57],
threatening to cause injury to officers of “The National Company Law Tribunal”[58],
refusing to cooperate with officers lawfully exercising their duty or
obstructing them in any way[59]
etc. are also punishable offences in relation to “The National Company Law
Tribunal” proceedings.
These provisions help reinforce the
sanctity of “The National Company Law Tribunal” proceedings and ensure proper
adherence to the legal framework and proper compliance with the procedure. This
goes toward making the proceedings of this tribunal effective and efficient,
thereby serving the true purpose of the formation of tribunals.
“The National Company Law Tribunal”
requires the furnishing of documentary and oral evidence. While documentary
evidence is likely to take precedence in terms of relevance and application,
there is a requirement for oral evidence as well, which is governed by
provisions set forth in “The National Company Law Tribunal” Rules itself.
As is the case with any documentary
evidence, the original document carries the highest weightage as primary
evidence, but certified copies or true copies can be furnished and may be
relied upon in the absence of the originals, under certain circumstances. “The
National Company Law Tribunal” Rules, 2016 speak about certified documents,
which refer to public documents issued by the concerned public officer, with
the certification that such document is a true copy of the original[60].
“The National Company Law Tribunal” follows the same concept of certified
documents as detailed in “The Indian Evidence Act, 1872”[61].
These certified copies act as proof of the concerned original document and the
contents thereof.[62]
In the context of “The National Company Law Tribunal” cases, these certified
documents are of utmost importance as they refer to the compliance form filings
by the company and its officers, with the Registrar of Companies, which serves
as the truest source of information for any action taken by the company. These
form filings include the appointment and removal of directors, the payment of
dividends, the details of board meetings and board resolutions etc.[63]
Therefore, such certified documents, i.e., true copies of Registrar of
Companies filings, are exceedingly important for any dispute involving a
company, especially if it is with regard to compliance failures.
As discussed hereinabove with regard
to filings before The Debt Recovery Tribunal, documentary evidence is required
to be furnished along with the application and the reply thereto, which links
up with Chapter V of “The Indian Evidence Act, 1872”.
“The National Company Law Tribunal”
has the power to direct parties to file evidence in the form of affidavits[64],
and the concerned deponents may be subjected to cross-examination.[65]
This ties in with the provisions of “The Indian Evidence Act, 1872” in this
regard[66].
However, over and above the replicated concept of cross–examination, “The
National Company Law Tribunal” is empowered to conduct such cross-examination
through virtual meetings, if applied for by either of the parties, subject to
the approval of “The National Company Law Tribunal”.[67]
Additional evidence which was in the
possession or knowledge of the parties but was not furnished before the
Inspector investigating under XIV of “The Companies Act, 2013”, generally
cannot be admitted at a later stage of trial, unless they can prove that the
inspector did not provide sufficient opportunity to present evidence.[68]
However, the court can direct parties to submit additional evidence or file
affidavits as it may require[69],
which can also be subjected to cross-examination by the opposite party[70].
In civil courts, under the ambit of “The Indian Evidence Act, 1872”, there is
no such bar on submission of evidence, however, the right to counter or
cross-examine on any evidence submitted is carried forward from “The Indian
Evidence Act, 1872”[71].
Furthermore, “The National Company
Law Tribunal” can call for further evidence as it deems fit for the purpose of
passing an order.[72]
These evidences are, explicitly, as provided for in “The Indian Evidence Act,
1872”[73],
and include inter alia books of accounts[74];
emails[75];
written communications; contracts; electronic certificates[76]
etc.[77]
If there is a claim of forgery or fabrication of such documents, “The National
Company Law Tribunal” can order a forensic examination at the cost of the party
alleging such forgery or fabrication.[78]
In “The National Company Law
Tribunal” proceedings, an application can be made to summon witnesses and
pursuant thereto, “The National Company Law Tribunal” shall issue summons for
the witness to appear before it and submit such document as required.[79]
Naturally, the witnesses summoned will be subjected to examination–in–chief,
cross-examination and re–examination if required, as provided for in “The
Indian Evidence Act, 1872”[80].
Furthermore, to enforce the attendance of the witness, Order XVI and XXVI of
“The Code of Civil Procedure, 1908” shall apply and the witness shall be put
under oath for examination,[81]
which means the provisions in regard to perjury shall also be made applicable.[82]
2.3.Evaluation
“The National Company Law Tribunal”
is touted as one of the best dispute resolution bodies in the country, in terms
of speed, efficiency and justice delivery. With 16 benches pan India[83],
“The National Company Law Tribunal” is amongst the Indian tribunals with the
maximum number of benches. On average, the dispute resolution time for a case
before “The National Company Law Tribunal” is 12 – 18 months[84],
which does seem lengthy but is fantastically lesser than that of cases before
civil courts, which is a testament to the fact that “The National Company Law
Tribunal” is effectively serving its purpose of speedy disposal of matters
within its jurisdiction. Of the approximately 83,000 cases filed before “The
National Company Law Tribunal” since its formation on 1st June 2016,
over 62,000 cases have been disposed of[85],
which is a disposal rate of 74.7% which is undoubtedly a highly impressive
ratio.
This success can be attributed to
various factors including the application of “The Code of Criminal Procedure,
1973” in reference to obeying the orders of the court. The enforceability of
the orders of “The National Company Law Tribunal”, having the backing of
punitive effects for non – compliance, helps ensure smooth and fast operations
of the tribunal. Furthermore, the freedom to frame its own procedure and the
dilution of the procedural laws, viz. “The Code of Civil Procedure, 1908”, “The
Code of Criminal Procedure, 1973” and “The Indian Evidence Act, 1872”, to the
bare minimum required for the operation of natural justice and logical
proceedings, could be one of the main contributors to the speediness of the
system. By eliminating the procedural delays created by parties, seeking
adjournments and condonations for filing further evidence, and having a limited
scope of admissible evidence as well as countering evidence submitted through
documents or witnesses, the process is accelerated and unnecessary delays are
prevented. Therefore, while “The Indian Evidence Act, 1872” is made applicable
to “The National Company Law Tribunal” proceedings, it is reduced to its
fundamentals and is hence a catalyst in the justice delivery system of this
tribunal.
3. “The National Green Tribunal”
3.1.Constitution and Jurisdiction
“The National Green Tribunal” was
established by way of “The National Green Tribunal Act, 2010”[86]
for the purpose of adjudicating disputes wherein there exists a substantial
question relating to the environment or a legal right concerning the
environment is to be enforced or on appeal on matters arising out of the
environmental legislations[87]
such as The Water (Prevention and Control of Pollution) Act, 1974[88];
The Forest (Conservation) Act, 1980[89]
and The Air (Prevention Control of Pollution) Act, 1981.[90]
3.2.Procedural Framework
“The National Green Tribunal” too, is
empowered to frame and regulate its own procedure[91]
and is expressly exempted from the application of “The Code of Civil Procedure,
1908”[92]
and “The Indian Evidence Act, 1872”[93].
“The National Green Tribunal” is only bound to follow the principles of natural
justice as a guide for conducting proceedings.[94]
While it is exempt from the application of “The Code of Civil Procedure, 1908”,
it is empowered at par with a civil court[95]
and has the power and authority to summon and enforce the attendance of any
person to examine them under oath[96];
require the discovery and production of documents[97];
receive evidence through affidavits[98];
as directly adopted from “The Indian Evidence Act, 1872”, “The National Green
Tribunal” can requisition any public record or document or its certified copy
from any office, etc.[99]
“The Indian Penal Code, 1860” and “The Code of Criminal Procedure, 1973” are
also made applicable insofar as perjury[100]
and contempt of court[101]
are concerned. This lends authority and enforceability through the power to
sanction for contravention, which upholds the sanctity of the proceedings and
helps implement the principles of natural justice.
“The National Green Tribunal” strays
far from the convention civil system and therefore operates on a very
simplified system. The application or appeal as the case may be, has to be
submitted along with all documentary evidence relied upon[102],
originals and/or certified copies as provided for in “The Indian Evidence Act,
1872”[103]; and
as is the procedure with the institution of any suit, however, “The National
Green Tribunal” allows for Notice to be sent to the opposite party by email and
also allows for the opposite parties to respond by email[104],
instead of the conventional sending of letters and copies of the application by
registered post. This not only saves time but reduces paper consumption which
is beneficial for the environment, which “The National Green Tribunal” is
entrusted to protect.
Furthermore, in the interest of
simplifying the process, complainants can file their complaints themselves
online through e – filing[105],
without the need for an advocate[106]
and can plead their cases before the bench themselves, however of course, the
engagement of an advocate is recommended as they have specialized knowledge on
procedure etc.[107]
The statutory framework supporting
“The National Green Tribunal” does not expressly provide for any procedure in
regard to oral or documentary evidence nor their examination, which means such
processes will be carried out by relying upon the provisions of “The Indian
Evidence Act, 1872” whenever required. The nature of the cases falling within
the jurisdiction of “The National Green Tribunal”, suggests little to no need
for oral evidence, although, if required, the tribunal can summon witnesses[108].
The bulk of the evidence taken under consideration for cases before “The
National Green Tribunal”, is likely to be documentary evidence in the form of
reports etc. which prove or disprove the alleged contravention by the parties.[109]
The complainant is likely to have conducted some sort of investigation and have
commissioned some report to ascertain the existence of any contravening acts by
the opposite party, in reference to violation of the statutory protection of
the environment or any alleged breach. This report would form the basis of the
complaint filed, and the defendant can refute the claim with their own report
or by proving certain facts refuting the alleged contravention. “The National
Green Tribunal” may direct the conducting of an investigation by the relevant
statutory authority or by experts, the report thereof to be submitted to the
bench for “The National Green Tribunal” to evaluate the claim. Public reports
based on investigations and surveys carried out by or on behalf of government
authorities/agencies can be requisitioned by “The National Green Tribunal”[110]
to evaluate the claim staked by the complainant. The contents of the
abovementioned reports can be argued upon, which would be the primary concern
in a trial before “The National Green Tribunal”.
Witnesses may be called for the
purpose of ascertaining the extent of damage caused and to evaluate the
wrongdoing on the part of the defendant. When a witness is summoned and examined,
natural justice calls for examination–in–chief, cross–examination and
re–examination if required, in consonance with “The Indian Evidence Act, 1872”[111].
To further the interest of speedy and
efficient judicial proceedings, “The National Green Tribunal” does conduct
proceedings via video–conferencing[112].
In circumstances where there is a shortfall in the bench in any of the zonal
benches, the principal bench at Delhi conducts hearings through video
conferencing for the cases pending before the concerned zonal benches[113].
“The National Green Tribunal Act, 2010” specifically provides for three
principles to be applied by the bench when adjudication a case; sustainable
development, the precautionary principle and the polluter pays principle.[114]
i.
Whether
the defendant’s actions are for or against sustainable development?
ii.
Whether
precautions have been taken to protect the environment and whether The National
Green Tribunal needs to order precautions to prevent future damage to the
environment?
iii.
If
the defendant is polluting, he must pay.
These three guiding principles simplify
the task of “The National Green Tribunal” as they have to simply evaluate the
facts presented before them in light of these three principles, which
undoubtedly contributes to the efficiency of “The National Green Tribunal”.
3.3.Evaluation
“The National Green Tribunal” is one
of the more successful tribunals in the country. It has five zonal benches
including the principal bench for the North in Delhi, Central Zone Bench in
Bhopal; Eastern Zone Bench in Kolkata; Southern Zone Bench in Chennai and the
Western Zone Bench in Pune.[115]
From the formation of “The National Green Tribunal” on 18th October
2012, out of the 40,343 cases filed before “The National Green Tribunal”,
38,373 have been disposed of, leaving only 1,970 pending cases. This amounts to
a 95.1% disposal rate[116],
which is truly superlative. “The National Green Tribunal Act, 2010” provides
for a 6-month adjudication period[117],
while exact details of average pendency time are not available, the 95.1%
disposal rate mentioned hereinabove speaks for itself in regard to the
efficiency of the tribunal.
The nature of the cases brought
before “The National Green Tribunal” is such that there is little scope for
arguments and hence it is generally acting simply as a body taking decisions
based on the information furnished in the application, of course with due
regard for natural justice and the due process of law. Furthermore, the number
of cases filed before “The National Green Tribunal” is also far lower than most
other tribunals, due to the limited scope of its jurisdiction, which again
contributes to its efficiency. As the process for “The National Green Tribunal”
cases is rather simplified, it eliminates the need for a significant procedural
framework and therefore follows “The Code of Civil Procedure, 1908” and “The
Indian Evidence Act, 1872” only as much as required for the carrying out of
natural justice. This simplified procedure, including electronic filing and
replying, boosts the speediness of the process and hence makes it more
effective. Therefore, for “The National Green Tribunal”, “The Indian Evidence
Act, 1872” is undoubtedly an integral legislation, but by boiling down the
extent of applicability to the bare minimum required to carry the principles of
natural justice, the tribunal has enabled itself to operate smoothly, with
speed and efficiency; which is the ultimate purpose of any tribunal.
Analysis and Conclusion
Through the dissection of the
evidentiary framework and procedure before The Debt Recovery Tribunal, “The
National Company Law Tribunal” and “The National Green Tribunal”, this paper
has highlighted the extent of the applicability of “The Indian Evidence Act,
1872” in proceedings before quasi–judicial bodies/tribunals, in order to
ascertain how beneficial, “The Indian Evidence Act, 1872” is, in the interest
of speedy and efficient justice delivery.
The indisputable fact is that “The
Indian Evidence Act, 1872” is integral to any judicial procedure as it serves
the interest of natural justice. Regardless of whether the statutory framework
of a particular tribunal expressly follows or exempts itself from complying
with “The Indian Evidence Act, 1872”, the key elements of “The Indian Evidence
Act, 1872” are present across the board, particularly;
i.
Furnishing
of documentary evidence,
ii.
Importance
of original documents as primary evidence
iii.
Circumstances
wherein copies of documents as secondary evidence may be relied upon
iv.
Examination
of witnesses including examination–in–chief, cross-examination and
re–examination.
However, limiting the extent of
applicability of “The Indian Evidence Act, 1872” does suggest yielding
favourable results in regard to tribunal proceedings being fast and efficient.
Simultaneously, it is important to note that a large portion of “The Indian
Evidence Act, 1872” is concerned with criminal trials whereas tribunals are
equivalent to civil courts with jurisdiction over civil matters, and hence, a
lot of “The Indian Evidence Act, 1872” is automatically nullified in regard to
tribunals.
Without prejudice to the foregoing
paragraph, the legislation which when reduced in applicability, seems to
benefit justice delivery the most, is “The Code of Civil Procedure, 1908”. The
discussions in regard to The Debt Recovery Tribunal, “The National Company Law
Tribunal” and “The National Green Tribunal” suggest that “The Code of Civil
Procedure, 1908” is the main restriction and curb on the speedy and efficient
delivery of justice as it allows for innumerable procedural delays. This
contention appears to resonate with the legislators as well, owing to the fact
that the statutory framework of all three of the tribunals discussed in this
paper expressly exempt the concerned tribunal from following “The Code of Civil
Procedure, 1908”. The freedom to frame their own procedure has resulted in the
creation of a simplified process which has benefited the interests of speedy
and efficient justice.
That being said, “The Code of Civil
Procedure, 1908” is followed to a certain extent in tribunal proceedings, in a
similar diluted fashion as is “The Indian Evidence Act, 1872”, as this is
necessary to empower the court, give it authority and power and serve the
principles of natural justice. The explicit provision that deems a tribunal at
par with a civil court as per “The Code of Civil Procedure, 1908” and gives it
the powers awarded to civil courts under “The Code of Civil Procedure, 1908”,
is present in the statutory framework of all tribunals.
Another key discovery through this
paper is that the tribunal must have the power to issue sanctions and impose
punitive repercussions for contraventions or failure in compliance, by
enforcing the provisions of “The Indian Penal Code, 1860” and “The Code of
Criminal Procedure, 1973”, particularly in relation to failure to comply,
contempt of court and perjury, as discussed hereinabove. The discussions in
relation to The Debt Recovery Tribunal proved that without imposing strict
criminal liability for failure in compliance and contravention of the legal
mandates, the tribunal shall fail to be effective let alone speedy.
Therefore, in summation, “The Indian
Evidence Act, 1872” is undoubtedly an integral part of the framework governing
quasi–judicial bodies and is a catalyst in the justice delivery system, albeit
in its most fundamental form. Stripping “The Indian Evidence Act, 1872” down to
the key elements is what has served the successful tribunals well. It is
impossible to completely evade the application of “The Indian Evidence Act,
1872” but the analysis in this paper suggests that a watered-down version
serves the interest of speedy and efficient justice best. Furthermore, the
paper reveals that one of the primary causes for delays in justice in both the
traditional court system and tribunal system appears to be “The Code of Civil
Procedure, 1908”. This acts over and above the fact that the caseload is
unfathomable in our country as it has the largest population in the world, and
there is a painful shortage of judges and courts to address these disputes.
Hence, it is likely that the creation of more tribunals, in sync with the
statutory framework of “The National Company Law Tribunal” and “The National
Green Tribunal”, to deal with specialised matters, would go a long way in
improving the condition of the justice delivery system in India.
[1] 3rd Year BBA LLB
(Hons.) at MIT WPU School of Law, Pune
[2] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.3
[3] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.17(1)
[4] “The Insolvency and Bankruptcy
Code, 2016”, S.179(1)
[5] “The Insolvency and Bankruptcy
Code, 2016”, S.179(2)
[6] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(1)
[7] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)
[8] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)(a)
[9] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)(b)
[10] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)(d)
[11] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)(c)
[12] “Supra Note” 6
[13] “The Debt Recovery Tribunal
(Procedure) Rules, 1993”, R.9(1)(ii)
[14] “The Indian Evidence Act, 1872”,
S.3
[15] “The Indian Evidence Act, 1872”,
S.61
[16] “The Indian Evidence Act, 1872”,
S.62
[17] “The Indian Evidence Act, 1872”,
S.63
[18] “The Indian Evidence Act, 1872”,
S.65(a)
[19] “The Indian Evidence Act, 1872”,
S.65(c)
[20] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.19(4)(ii)
[21] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.19(5)(i)
[22] “Supra Note” 9
[23] “Supra Note” 10
[24] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.19(10A)
[25] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.19(5A)
[26] “Supra Note” 24
[27] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.22(2)(d)
[28] “The Indian Evidence Act, 1872”,
S.138
[29] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.19(6)
[30] “Supra Note” 15; “Supra Note” 16; “Supra
Note” 17
[31] “The Recovery Of Debts And
Bankruptcy Act, 1993”, S.20(6)
[32] “Saikat Das, ‘Rajiv Takru asks the
Debt Recovery Tribunal to make process of loan recovery more swift’, (Economic
Times, 24 October 2013), https://economictimes.indiatimes.com/news/economy/finance/rajiv-takru-asks-drt-to-make-process-of-loan-recovery-more-swift/articleshow/24659191.cms?from=mdr, accessed 6 April 2023”
[33] “Gaurav Vivek Bhatnagar, ‘Why Does
it Take So Long to Resolve Debt Recovery Cases in India?’, (The Wire, 21 November 2016), https://thewire.in/economy/debt-recovery-npa-insolvency,
accessed 6 April 2023”
[34] Ibid
[35] “Government of India – Ministry of
Finance – Department of Financial Services https://financialservices.gov.in/about-debt-recovery-tribunal#:~:text=At%20present%2C%2039%20Debts%20Recovery,Officer%20and%20a%20Chairperson%20respectively, accessed 6 April 2023”
[36] “Supra Note” 33
[37] “Supra Note” 35
[38] “Supra Note” 32
[39] “Supra Note” 33
[40] “Supra Note” 32
[41] “Supra Note” 33
[42] “The Companies Act, 2013”, S.408
[43] “The Insolvency and Bankruptcy
Code, 2016”, S.60
[44] “The Companies Act, 2013”,
S.424(1); “The National Company Law Tribunal” Rules, 2016, R.51
[45] “The Companies Act, 2013”,
S.424(2)
[46] “The Companies Act, 2013”,
S.424(2)(a)
[47] “The Companies Act, 2013”, S.424(2)(b)
[48] “The Companies Act, 2013”,
S.424(2)(d)
[49] “The Companies Act, 2013”,
S.424(2)(e)
[50] “The Companies Act, 2013”,
S.424(4)
[51] Ibid; “The Indian Penal Code,
1860”, S.196
[52] “The Indian Penal Code, 1860”,
S.193
[53] “The Indian Penal Code, 1860”,
S.228
[54] “Supra Note” 50; “The Code of
Criminal Procedure, 1973”, S.195
[55] “The Indian Penal Code, 1860”,
S.174
[56] “The Indian Penal Code, 1860”,
S.175
[57] “The Indian Penal Code, 1860”,
S.183; S.184; S.186; S.188
[58] “The Indian Penal Code, 1860”,
S.189
[59] “The Indian Penal Code, 1860”,
S.172; S.173; S.176; S.178; S.179; S.180; S.182; S.184; S.187
[60] “The Indian Evidence Act, 1872”,
S.76
[61] “The National Company Law
Tribunal” Rules, 2016, R.2(9)(a); R.2(10)
[62] “The Indian Evidence Act, 1872”,
S.77
[63] “Forms under “The Companies Act,
2013”’, (Cleartax, 12 October 2021) https://cleartax.in/s/forms-companies-act-2013, accessed 6 April 2023”
[64] “The National Company Law
Tribunal” Rules, 2016, R.39(1)
[65] “The National Company Law
Tribunal” Rules, 2016, R.39(2)
[66] “The Indian Evidence Act, 1872”,
S.137
[67] “Supra Note” 65
[68] “The National Company Law
Tribunal” Rules, 2016, R.40(1)
[69] Ibid
[70] “The National Company Law
Tribunal” Rules, 2016, R.40(4)
[71] “Supra Note” 66
[72] “The National Company Law
Tribunal” Rules, 2016, R.43(1)
[73] “The National Company Law
Tribunal” Rules, 2016, R.43(2)
[74] “The Indian Evidence Act, 1872”,
S.34
[75] “The Indian Evidence Act, 1872”,
S.65B
[76] “The Indian Evidence Act, 1872”,
S.67A
[77] “Supra Note” 73
[78] “The National Company Law
Tribunal” Rules, 2016, R.43(3)
[79] “The National Company Law
Tribunal” Rules, 2016, R.52(1)
[80] “Supra Note” 66
[81] “The National Company Law
Tribunal” Rules, 2016, R.135
[82] “The Indian Penal Code, 1860”,
S.193
[83] “The National Company Law Tribunal
– Benches (https://nclt.gov.in/national-company-law-tribunal-benches) accessed 11 April 2023.”
[84] “Salil Panchal, ‘Five years of “The
National Company Law Tribunal”: The bad loan recovery tool is painfully slow,
but still India's best bet’, (Forbes India, 12 July 2021), https://www.forbesindia.com/article/take-one-big-story-of-the-day/five-years-of-nclt-the-bad-loan-recovery-tool-is-painfully-slow-but-still-indias-best-bet/69075/1, accessed 11 April 2023”
[85] ‘“The National Company Law
Tribunal has disposed of 62,000 cases out of about 83,000 filed: Official’, (Business
Standard, 27 March 2022), https://www.business-standard.com/article/current-affairs/nclt-has-disposed-of-62-000-cases-out-of-about-83-000-filed-official-122032700022_1.html, accessed 11 April 2023”
[86] “The National Green Tribunal Act,
2010”, S.3
[87] “The National Green Tribunal Act,
2010”, S.14(1)
[88] “The National Green Tribunal Act,
2010”, Schedule I, Entry 1
[89] “The National Green Tribunal Act,
2010”, Schedule I, Entry 3
[90] “The National Green Tribunal Act,
2010”, Schedule I, Entry 4
[91] “The National Green Tribunal Act,
2010”, S.19(2)
[92] “The National Green Tribunal Act,
2010”, S.19(1)
[93] “The National Green Tribunal Act,
2010”, S.19(3)
[94] “Supra Note” 92
[95] “The National Green Tribunal Act,
2010”, S.19(4)
[96] “The National Green Tribunal Act, 2010”,
S.19(4)(a)
[97] “The National Green Tribunal Act,
2010”, S.19(4)(b)
[98] “The National Green Tribunal Act,
2010”, S.19(4)(c)
[99] “The National Green Tribunal Act,
2010”, S.19(4)(d); “The Indian Evidence Act, 1872”, S.123; “The Indian Evidence
Act, 1872”, S.124
[100] “The National Green Tribunal Act,
2010”, S.19(5); “The Indian Penal Code, 1860”, S.193; “The Indian Penal Code,
1860”, S.196; “The Indian Penal Code, 1860”, S.219
[101] “The National Green Tribunal Act,
2010”, S.19(5); “The Indian Penal Code, 1860”, S.228
[102] The National Green Tribunal
(Practices and Procedures) Rules, 2011, R.13(5)(b)
[103] “The Indian Evidence Act, 1872”,
S.62; “The Indian Evidence Act, 1872”, S.63
[104] “The National Green Tribunal –
Methodology (https://www.greentribunal.gov.in/methodology-ngt) accessed 12 April 2023”
[105] “The National Green Tribunal – E –
Filing (https://ngtonline.nic.in/efiling/mainPage.drt) accessed 12 April 2023”
[106] “Supra Note” 104
[107] “Praveen Bhargav, ‘Everything you
need to know about the National Green Tribunal (The National Green Tribunal)’
,(Conservation India, 2 May 2011), https://www.conservationindia.org/resources/ngt#:~:text=Yes.,guidelines%20related%20to%20dress%20apply., accessed 12 April 2023”
[108] “Supra Note” 96
[109] “Supra Note” 104
[110] “Supra Note” 99
[111] “The Indian Evidence Act, 1872”,
S.137
[112] “The National Green Tribunal
Western Zone Bench – Advance Cause List 13 April 2023 (https://greentribunal.gov.in/click-here-see-13th-april-2023-advance-cause-list-western-zone-bench-pune-through-physical-hearing) accessed 12 April 2023”
[113] “Supra Note” 104
[114] “The National Green Tribunal Act,
2010”, S.20
[115] “The National Green Tribunal –
Zonal Benches (https://greentribunal.gov.in/zonal-benches) accessed 12 April 2023”
[116] “The National Green Tribunal –
Home - Grand Total Of Institution, Disposal And Pendency Of The Cases Of NGT
Principal Bench And All Zonal Benches From The Date Of Its Inception Till 28.02.2023
(https://www.greentribunal.gov.in/) accessed 12 April 2023”
[117] “The National Green Tribunal Act,
2010”, S.18(3)
Article Information
THE APPLICATION OF “THE INDIAN EVIDENCE ACT, 1872” IN TRIBUNAL PROCEEDINGS
Authors: HRISHI KAPADIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.