PARAMETERS GOVERNING PERCIPIENT WITNESS TESTIMONY

IN VIEW OF PRAMAANA THEORY OF NYAAYASHAASTRA

Ila Sudame
Abstract
Section 60 of the Indian Evidence Act 1872 deals with direct
evidence. Direct evidence includes testimonies of percipient
witnesses who testify to something that they have perceived
through their own senses. These testimonies are considered as best
evidence and are heavily relied upon for administration of justice.
However, for such an important piece of evidence, the Evidence
Act is silent upon the definition, parameters and validity aspects of
perception which happen to be crucial to avoid cases of witness
misidentification. An allied branch of study can be found in the
Indian epistemology flowing from Nyaayashaastra wherein
definition of perception as a means of knowledge and the validity
thereof has been laid down and time-tested for over centuries. This
paper aims to explore these parameters of Pramaana and the
possibility of supplementing the inquiry into direct evidence by
taking recourse to this body of knowledge for preventing
miscarriage of justice.
Key Words: Evidence, Testimony, Perception, Percipient Witness,
Witness Misidentification, Epistemology,
Nyaayashaastra, Pramaana, Justice.
Introduction
The Indian Evidence Act 1872, majorly qualifies as a procedural or adjective
piece of legislation which keeps the substantive laws in motion. The object of
any legal proceeding is the determination of rights and liabilities which depend
upon facts. The fundamental idea of law of evidence is to consolidate or lay
down principles governing facts in a matter and proof thereof. Pursuantly, it
provides for definitions for the terms engaged in running its scheme, like facts,
kinds of facts, evidence, manner of rendering evidence or proofs, the
admissibility and burdens thereof, etc. What may be admissible as a piece of
evidence is decided by inquiring into the source of that knowledge, reliability
thereof, and subsequently communication and interpretation of the same. The
Act of 1872, however, at multiple junctures, is found to be silent on identifying
and laying down the necessary parameters for validly sourcing knowledge to

 Republication of the paper published in the Souvenir titled “PINNACLE” released

by the High Court Bar Association, Nagpur on the occasion of the felicitation
programme of the Hon’ble Shri Justice Sharad Arvind Bobde, Chief Justice of India
on his appointment as the Chief Justice of India.
 Centre Co-ordinator, Centre for Shaastric Studies and Research in Law (CSSRL),
Maharashtra National Law University, Nagpur, e-mail: [email protected].
118 Contemporary Law Review [Vol. 4, No. I

constitute evidence for the proof of facts. The epistemological pursuits of our
indigenous knowledge system flowing from Nyaayashaastra, have simplistic
methods and refined approaches for all such studies. Nyaayashaastra has
identified and enunciated some primary subjects known as padaarthas. The
ascertainment of truth about anything is done by application of the correct
understanding of these padaarthas. These padaarthas are sixteen in number.
The first primary subject or padaartha as enunciated in Nyaayasutra1 hereinafter
referred as N.S, pramaana (the means of valid knowledge-often referred to as
proofs) is concerned with the modes of acquisition of valid knowledge, various
sources thereof and the factors instrumental in the process of ascertaining the
truth of this knowledge. This philosophy resonates with the rationale of Laws of
Evidence in their modern form. This correlative study of the pramaana theory
of Nyaayashaastra and the Act of 1872 regarding source of the
information/knowledge that may qualify as ‘evidence’ provides a perfect
interface to identify the vulnerabilities of the positive law and further
supplement its provisions with the anchors of definitions/explanations etc., with
the help of allied studies.
Under the scheme of Indian Evidence Act 1872, facts may be judicially
noticed, proved by oral evidence or proved by documentary evidence. Of these,
judicially noticeable facts need not be proved.2 All other facts except for the
contents of documents or electronic records may be proved by oral evidence.3
The implicit rule of ‘best evidence’ ideated in Act applies to both oral and
documentary evidence.4 In all cases where oral evidence is required to be
adduced, direct testimony is considered to be the ‘best evidence’.5 This direct
testimony is rooted in the process of witness identification or a witnesses’
perceptual knowledge of any event. Thus, perceptions have the potential to
prove a charge beyond reasonable doubt or even be conclusive evidence of a
fact. The entire process of witness identification has an immense bearing on
administration of justice. This makes it imperative to study the roots of these
perceptions in one’s cognitive process in order to place reliability on them.
However, for such an important piece of evidence, the Act of 1872 is silent
upon the definition, parameters and validity aspects of perception which happen
to be crucial to avoid cases of witness misidentification. The theories of Indian
epistemology from Nyaayashaastra, specifically relating to perceptions as a
means of valid knowledge (pratyaksha pramaana) can lead us to analyse the
testimonies of percipient witnesses under a brighter light, and can certainly be
an indispensable aid to the process of administering justice. The multi-
disciplinary approach of studying a subject known as akhanda-vidya has been

1 Nyaayasutra of Gautama, is the first systematic work on Nyaayashaastra.

2 Section 56 of the Indian Evidence Act 1872.
3 Section 59 of the Indian Evidence Act 1872.
4 Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532.
5 Section 60 of the Indian Evidence Act 1872.
2020] Parameters Governing Percipient Witness Testimony 119

the traditional method of study for Indian scholars. The main objective of this
paper is to create an interface of study between the complementary disciplines
of epistemology, testimonies of percipient witnesses and cognitive forensics to
some extent, and explore the possibility of extending the time-tested indigenous
parameters of pramaana-shaastra to anchor the concept of perception under
Section 60 of the Act of 1872 for preventing miscarriage of justice. In order to
achieve the object of this study, a conceptual analysis of the limited terms
involved herein from disciplines apart from law is carried out in brevity as a
matter of necessity. Further, this paper gives the researcher an opportunity to
venture into a relatively neglected or unemployed field of legal epistemology in
the Indian context.
Pramaana Epistemology: Classification of Valid Knowledge
“To be master of any branch of knowledge, you must master those
which lie next to it…”1
- Oliver Wendell Holmes
Knowledge is an episode that finds its source in our beliefs. Our beliefs
acquire the status of knowledge when they are proved to be true.2 After all, it is
only upon the court’s belief that a fact exists that it can said to be ‘proved’.3
This is where the question of evaluation of evidence arises which takes us to the
concern of validly sourcing the knowledge. Therefore, an allied study of
epistemology or pramaana-shaastra, where the means of valid knowledge-
often referred to as ‘proof’ is theorised, becomes imperative here. ‘Pramaana’
as a term, is of dual character: evidential and causal.4 A pramaana provides
evidence or justification for regarding a cognitive episode as a piece of
knowledge.5 As a causal character, it is the means or instrument (karana)
leading to a knowledge-episode.6 Valid knowledge known as pramaa is the end
of pramaana.7 Pramaana, as discussed above, is the first of the sixteen primary
topics/ padaarthas as identified by the Nyaayasutras.
In courts, affidavits are filed wherein the deponent voluntarily swears or
affirms some statement of facts, and the same can be used as evidence upon
court’s orders.8 The Supreme Court had clarified the position regarding the
nature and source of knowledge in an affidavit by relying on Order 19, Rule 3

1 Sheldon Novick, THE PROFESSION OF THE LAW: COLLECTED WORKS OF

JUSTICE HOLMES, Vol. 3, 1995, pp. 471-473.
2 Bimal Krishna Matilal, PERCEPTION: AN ESSAY ON CLASSICAL INDIAN
THEORIES OF KNOWLEDGE, 1st ed. 1991, 1st Ind. rep. 2016, p. 21.
3 Section 3 of the Indian Evidence Act 1872.
4 Supra n. 2, p. 35.
5 Ibid.
6 Ibid.
7 Supra n. 2, p. 22.
8 Supra n. 3.
120 Contemporary Law Review [Vol. 4, No. I

of the Civil Procedure Code 1908 which requires the deponent to disclose the
nature and source of his knowledge with sufficient particularity.1 Thus, the
pramaanas of the statements made in the affidavit are highly crucial for such
formal assertions.
According to Nyaayashaastra, the sources or instruments of valid
knowledge or pramaana are four-fold, viz., perception (pratyaksham); inference
(anumaanam); comparison (upamaanam); and verbal testimony (shabdaha).2
As we peruse the provisions of the Indian Evidence Act 1872, we find that
though not in the similar fashion of classification, it does identify these sources
of perception, inference, comparison and expert testimony wherefrom the
knowledge regarding any act/event/happening may be acquired and
subsequently adduced as ‘evidence’ as defined in the interpretation clause of the
Act. The classification of evidence with their parallel epistemic foundations in
pramaana theory of Nyaayashaastra can be stated briefly as under:
(i) Perception (Pratyaksham)-Direct Evidence
Perception or pratyaksham is defined in the Tarka-Samgraha (a work on
Nyaayasutra) as the knowledge that is produced by the contact of a sense-organ
with its object.3 This is pure sensory perception where the knowledge is sourced
from the episode of one’s direct sensory contact with an
object/event/happening. Section 60 of the Act of 1872 identifies such direct
sensory perceptions. It requires the oral evidence in all cases to be direct. In
other words, it mandates that if the oral evidence refers to a fact perceivable by
any sense then the testimony must be by that person who says he perceived it by
that sense.
(ii) Inference (Anumaanam)-Circumstantial Evidence
Inferential knowledge is defined in Nyaayasutra as the knowledge that is
preceded by perception.4 The Tarka-Samgraha defines it as knowledge born of
subsumptive reflection.5 In simpler words, it means the structured process of
arriving from a premise to a conclusion by employing the reason. Where direct
evidence is unavailable or insufficient, putting together the circumstantial
evidence in any crime and coming to conclusion by applying reason is a form of
inferential knowledge or anumaanam.

1 Sukhwinder Pal Bipan Kumar v. State of Punjab (1982) 1 SCC 31.

2 [Pratyaksha-anumaana-upmaana-shabdaahaa “pramaanaani”] N.S.-1.1.3.
3 [Indriya-artha-sannikarshah-janyam-jnyaanampratyaksham] translated by A.B.
Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 9.
4 [Atha Tatpoorvakam] N.S.-1.1.5.
5 [Paraamarshah-janyam-jnyaanam-anumitih], translated by A.B. Gajendragadkar
and R.D. Karmarkar, TARKA SAMGRAHA OF ANAMBHATTA, 1st ed. 2004, p.
11.
2020] Parameters Governing Percipient Witness Testimony 121

(iii) Comparison (Upamaanam)-Analogy

Upamaanam means knowledge acquired by instituting a comparison or
analogy. As defined in the Nyaayasutra, it means the knowledge of a thing
through its similarity to another thing previously wellknown.1 Section 73 of the
Act of 1872 allows the proof of a signature/seal/writing purported to be of a
given person to be ascertained by instituting a comparison with the one that is
already admitted/ proved for the satisfaction of the Courts. This source of
knowledge can be classified as upamaanam.
(iv) Verbal Testimony/Word (Shabdah)-Expert Testimony
Verbal Testimony is the word or assertion of a reliable person who speaks of
things as they are.2 Section 45 of the Act of 1872 speaks of the opinion of
experts being relevant facts. According to the provision, when a doctor (who is
not a party to the litigation) is called upon to testify as an expert witness in cases
of medical negligence, his/her opinion is admissible as a relevant fact. This
testimony of the doctor, owing to the belief of expertise in him/her, qualifies as
shabdah. The principles governing shabdah can be read not just with the
provisions relating to expert testimonies, but can also be applied to the
testimonies of percipient witnesses under Section 60 of the Act of 1872.
There are other sources of knowledge that have been discussed in the Act of
1872 like hearsay, presumptions etc. Nyaaya philosophy, however doesn’t
identify them as separate sources of knowledge and instead considers them to be
included in either of the four sources discussed above. This interface is briefly
discussed hereunder:
(a) Rumour (Aitihya)-Hearsay
The discussion regarding the means of valid knowledge goes further in the
Nyaayasutra where ‘rumour’ or aitihya as a whole other means of right
knowledge is pondered upon amongst others. It defines rumour/aitihya as an
assertion which has come from one to another without any indication of the
source from which it first originated.3 The Indian Evidence Act 1872 identifies
such assertions as hearsay, and regards them as no evidence and declares them
inadmissible in view of Section 60 which requires all evidences to be direct. In
Nyaayasutra, the contention of aitihya being a distinct means of valid
knowledge comes to be dismissed as rumour happens to be included in verbal
testimony. Furthermore, while discussing verbal testimony, it rejects the
testimony of any person who doesn’t speak of things as they are, i.e., the
testimony of an ayathaartha-vakta.

1 [Prasiddha-saadharmyaat-saadhya-saadhanamupamaanam] N.S.-1.1.6.
2 [Aaptopadeshah-shabdah] N.S.- 1.1.7; [Aaptavaakyam-shabdah], translated by
A.B. Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 18.
3 N.S.- 2.2.1.
122 Contemporary Law Review [Vol. 4, No. I

(b) Presumption (Arthaapattih)

Presumptions have had a significant role to play in jurisprudence.
Presumptions come into operation in the absence of actual certainty of the truth
1
or falsehood of a fact or proposition. It is an inference (affirmative /
disaffirmative) logically drawn by a process of probable reasoning from
2
something which is taken for granted. Presumption may be of a fact or of law.
There are mixed presumptions of law and fact too. Nyaaya has defined
3
presumption as the deduction of one thing from the declaration of another. The
definitions of ‘presumption’ given by both - the positive law and
Nyaayashaastra, suggest that presumptions are inferences. Nyaayashaastra
doesn’t acknowledge presumptions as separate source of knowledge but
includes them in the category of inference or anumaanam.
This interface of the various identified sources of valid knowledge in the
positive law and Nyaaya epistemology is only illustrative of the scope of these
two disciplines being practically read together. The categorisation of various
sources of knowledge is an indispensable study, as every source of knowledge -
be it percipient witness’ testimony, circumstantial evidence, expert evidence
etc., has a completely different bearing on administration of justice.
Nyaaya’s Parameters of Perceptions (Pratyaksham)
It is said that “there are things known and there are things unknown and in
between are the doors of perception”. As discussed earlier, pratyaksham is the
knowledge born out of contact of a sense organ with an object. It is the plain
perception born out of interaction between sense organs and the object.
Pratyaksha pramaana is considered as the most supreme means of valid
knowledge as opposed to drawing inferences, analogies or an expert’s
testimony. In fact, the Chaarvaaka system of Indian philosophy identifies
perception as the only dependable source of valid knowledge. The Dvaita
epistemology defines perception as the contact of a faultless sense organ with a
faultless object. That is to say perception is a pramaa or valid knowledge at all
times. The Naiyyayikas do not ascribe faultlessness either to the sense organ or
the object. But they go ahead to establish which of the perceptions can qualify
as pramaa. Interestingly they deal with the concept of perception as it is. A
person’s perception may not be a true cognition but that is one’s own
perception. Whether it coincides with reality or yathaartha is a subsequent and
different question. But at the stage of defining the perception, Nyaaya
epistemology doesn’t qualify it with the requirement of being a faultless
perception.

1 Sudipto Sarkar and V.R. Manohar, SARKAR ON EVIDENCE, 15th ed. 1999, 1st
Ind. rep. 2004, p. 77.
2 Ibid.
3 Nandalal Sinha and M.M. Satisa Chandra Vidyabhushana, THE NYAYA SUTRAS
OF GOTAMA, 1st Ind. rep. 2016, p. 55.
2020] Parameters Governing Percipient Witness Testimony 123

Classification of Perceptions
Perception is classified as internal (maanasa) and external (baahya). Internal
perception arises out of mind’s contact with psychical processes. External
perception is the due to sensory contact with the objects. Nyaaya also classifies
perceptions as: ordinary (laukika) and extraordinary (alaukika) perceptions.1
(i) Ordinary Perceptions (Laukika)
These are the perceptions that occur when the object is present to the sense-
2
organ. When an object is available to either of the sense organs and is
perceived by the relevant sense organ then an ordinary perception takes place.
For example, the colour as cognised by the eyes is visual perception. Sound as
heard by the ears is aural perception. Smells as known through the nose is nasal
perception. Taste as known to the tongue is gustatory perception and touch as
felt by the skin is tactual perception. This ordinary perception is classified into
three modes based upon how the properties or characteristics of the object are
perceived. Thus, ordinary perception may be indeterminate perception, i.e.,
nirvikalpakam / nishprakaarakam, determinate perception i.e., savikalpakam /
saprakaarakam, re-cognition i.e., pratyabhijna.
(a) Indeterminate Perception (Nirvikalpakam/Nishprakaarakam)
Indeterminate or nirvikalpakam perception is that in which the object is
apprehended as something with a very general characteristic. It is when at the
first sight one identifies the primary properties of an object but not the
specification. To clarify with an example, the indeterminate perception is when
one cognises the ‘orangeness’ (characteristics like round shape, color, smell
etc.) in an orange. It just the primary cognition of an object without attributing
any specific characteristics to it. Just like, the cognition of a thing at a distance
where one can only immediately tell that ‘it is something that has a linear
elongated shape and has a reflective capacity’.
(b) Determinate Perception (Savikalpakam/Saprakaarakam)
Determinate perception on the other hand is said to occur when the object is
cognised and known to possess some character. It occurs when one specifically
cognises an object as ‘orange’.3 It is a perception which can attribute characters
to an object. That is to say, in the above example if the ‘linear elongated shaped
thing with a reflective capacity’ is actually cognised as ‘this is a knife’, then it is
a determinate perception.

1 Satischandra Chatterjee and Dhirendramohan Datta, AN INTRODUCTION TO

INDIAN PHILOSOPHY, 1st ed. 1939, 1st MLBD ed. 2016, p. 172.
2 Ibid.
3 Ibid., p. 176.
124 Contemporary Law Review [Vol. 4, No. I

(c) Remembrance (Smritih) and Re-Cognition (Pratyabhijna)

Herein, an object is already cognised at an earlier point in time and is re-
cognised later when one perceives it again and knows that it is the same object.1
In pratyabhijna or re-cognition, an object that was cognised before is cognised
again. That is to say, in the same example above, ‘this is the same knife that he
cuts fruits with.’ Re-cognition is rooted in remembrance (smritih) which is
again, a form of cognition. It arises out of mental impressions alone.2 Further,
remembrance is of two kinds: (i) correct remembrance, which is produced from
right apprehension that coincides with reality; (ii) incorrect remembrance,
which is produced from wrong apprehension that does not coincide with
reality.3 This mode of cognition can be said to be a subset of sensory perception.
(ii) Extraordinary Perceptions (Alaukika)
Ordinary perception is that obtained through senses. Extraordinary perception
occurs when the object is not ordinarily present to the sense-organ but is
4
conveyed to the sense through an unusual medium. There are three types of
extraordinary perception accepted in the Nyaayashaastra: saamaanya-
lakshana, jnaana-lakshana and yogaja.
(a) Saamaanya-Lakshana
It is the kind of extraordinary perception wherein there occurs a cognition of
a universal or saamaanya like, the perception of ‘manhood’.5 This implies the
perception of a class of men that are not physically present to a sense-organ. So,
while stating that ‘all men are mortal’, one hasn’t physically perceived ‘all men’
but a quality of ‘manhood’ which is universal or saamaanya to the class of men
is perceived.
(b) Jnaana-Lakshana
Perceptive faculties of various sense-organs are closely linked with each
other. Jnaana-lakshana occurs when a process of cognition takes place owing to
close connection between various perceptive faculties. So, the various perceived
characteristics in one object become an integral part of a single perception. In a
testimony where one states ‘I saw a piece of fragrant sandalwood’, it actually

1 Satischandra Chatterjee and Dhirendramohan Datta, AN INTRODUCTION TO

INDIAN PHILOSOPHY, 1st ed. 1939, 1st MLBD ed. 2016, p. 177.
2 [Samskaara-maatra-janyam-jnaanam-smritih], translated by A.B. Gajendragadkar
and R.D. Karmarkar, TARKA SAMGRAHA OF ANAMBHATTA, 1st ed. 2004, p. 8.
3 [Smritih-api-dvividha- yathaarthah ayathaarthah cha. Pramaa-janyaa yathaarthah,
apramaa-janyaa ayathaarthah], translated by A.B. Gajendragadkar and R.D.
Karmarkar, TARKA SAMGRAHA OF ANAMBHATTA, 1st ed. 2004, p. 20.
4 Supra n. 1.
5 Ibid., p. 174.
2020] Parameters Governing Percipient Witness Testimony 125

implies the perception of fragrance by eyes. Here, the past olfactory experience
of fragrance is closely linked with the visual experience of sandalwood.1
This is the part of Nyaaya theory of perceptions which explains perceptual
2
illusions and hallucinations. This kind of extraordinary experience wherein the
correct subject of the stated sense-organ is not actually present to it and causes
3
illusions. The classic examples of such a perception are the illusion of snake in
a rope; the illusion of a man in a lamp post far away.
(c) Yogaja
The third kind of extraordinary perception is the yogaja or the intuitive
perceptions caused by the yoga practice. This is the perception of all objects-
past, present, future, hidden and infinitesimal, by the yukta or the one who
possesses supernatural powers owing to spiritual perfection by devout
meditation or yogabhyaasa.4
Defects in Perceptions
Faulty perceptions may arise out of some defects or dosha in the process of
perception. These defects may fall in three categories: environmental,
pathological and cognitive.
(i) Environmental Defects
The environmental defects of perception include defective environment, that
is to say, haziness; bad lighting; object being too near or too far that makes it
difficult to perceive the object.
(ii) Pathological Defects
The pathological defects are the defects in instruments of perception due to
5
myopic vision, tactual numbness, hearing incapacity etc.
(iii) Cognitive Defects
The cognitive defects arise due to the mental state of the perceiver for
example, inattentiveness; disturbed state due to anger/pain/other overpowering
positive or negative emotional states. These may also arise due to illusions
caused by jnaana-lakshana or not being able to distinguish between a
perception and an inference. It may also arise when the internal psychological
factors or set of mind affects the perception.

1 Satischandra Chatterjee and Dhirendramohan Datta, AN INTRODUCTION TO

INDIAN PHILOSOPHY, 1st ed. 1939, 1st MLBD ed. 2016, p. 174.
2 Bimal Krishna Matilal, PERCEPTION: AN ESSAY ON CLASSICAL INDIAN
THEORIES OF KNOWLEDGE, 1st ed. 1991, 1st Ind. rep. 2016, p. 286.
3 Ibid.
4 Supra n.1, p. 175.
5 Jonardon Ganeri, ARTHA: MEANING, 3rd imp. 2017, p. 108.
126 Contemporary Law Review [Vol. 4, No. I

Role of Cognitive Psychology in Distinguishing Sources of Knowledge

Episodes
At this juncture, where the various sources of valid knowledge or evidence
are culled out, the identification of knowledge episodes in order to categorise
this knowledge can be discussed. Cognition literally means the mental action or
process of acquiring knowledge and understanding through thought, experience
and the senses. It is the cause and basis of every knowing. In other words, any
piece of knowledge or ‘knowing’ - valid or invalid, can be said to be the effect
or end result of process of cognition. Cognition is referred to as jnyaanam and
defined in Nyaayashaastra as the quality which is the cause of all kinds of
communications. It is the cause of the immediate knowledge which manifests
itself in the form ‘I know’.1 When a person testifies to something, it is his/her
knowledge of the event. In order to decide the validity of this knowledge which
is to qualify as admissible evidence, it is imperative to understand how it was
actually cognised. That is to know its origin. Cognition can be said to be
instrumental in realisation of a ‘fact’ as defined in the Act of 1872. A ‘fact’ may
be anything, state of things, or relation of things, capable of being perceived by
the senses. A ‘fact’ also includes any mental condition of which any person is
conscious. When an object is known/cognised as it is, it is a valid apprehension
of that object. That is to say the testimony of a person coincides with the reality.
The one who testifies is speaking of things as they are. This valid cognition is
known as pramaa. The instruments of valid apprehension /pramaa are the
means of valid knowledge: perception (pratyaksham), inference (anumitih),
comparison (upamitih) or verbal testimony (shaabdah). So, the testifier may
employ either of these faculties to testify. The evidence may be a person’s direct
perception of an event; it may be his inference or analogy or an expert opinion
about the happening. All of these are classified as valid sources of knowledge.
The detrimental part in the entire process is the classification of this
knowledge. It is required to be categorically classified whether a person who is
testifying has the knowledge via sensory perception or is drawing inferences
and analogies or it’s his/her expert opinion on the event. This is because each of
these forms of evidences has a different bearing upon the matters. Where an
expert opinion is regarded as a relevant fact, the sensory perception is a direct
evidence of an event. A person’s inferences/analogies may account for
circumstantial evidences. Not only this, the entire procedure of testing these
evidences and the standards of proving whether the testimony coincides with
reality or yathaarthah is unique. The knowledge via sensory perception has to
stand the test of faultless senses and other environmental, pathological and
cognitive specifications. The circumstantial evidences or the inferential
knowledge should stand the test of logical syllogism or pancha-avayava where

1 [Sarva-vyavahaara-hetuh-gunahbuddhih-jnyaanam], translated by A.B.

Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 8.
2020] Parameters Governing Percipient Witness Testimony 127

the premise is established as a conclusion via a structured process of reasoning.

The expertise in an opinion or any verbal testimony has to stand the test of
reliability or aapti and correct mode of communication. So, the test for proving
every fact is unique for all varieties of evidence. It depends upon the source of
cognition.
Cognitive psychology is a subject, that is concerned with the mental
processes of perception, memory, thinking, processing of knowledge etc., is
another allied field along with epistemology that has immense potential to
standardise the mechanism of laws of evidence and thereby improvise justice
administration. An error in classifying the knowledge episode into the
categories of perception, inference, analogy or opinion can seamlessly
perpetuate to change the parameters of weighing that evidence in the given facts
and circumstances of a case and easily result in miscarriage of justice.
Nyaaya’s Parameters for Capacity to Give Rational Answers
The second significant aspect of adducing testimonial evidence after
acquisition and classification of knowledge is the communication thereof. The
validly perceived and received knowledge needs to be communicated in a
rational and syntactical manner so as to make it a reasonable exercise.
The Indian Evidence Act 1872 has provided for the communicative
competence of witnesses by stating who can testify. According to it, the persons
capacitated to give rational answers to the questions put to them can testify.1
The provision, however, doesn’t specify factors governing the ‘capacity to give
rational answers’. Nyaaya epistemology while dealing with shabdah or verbal
testimony culls out the various distinctions of a sentence that are contributive to
the validity of testimony. These tenets of logical structure of a sentence are laid
down in context of verbal testimonies. Not every combination of words can
make an intelligible sentence. The sentence can cause its meaning and
knowledge therein possible to be communicated in the intended and intelligible
manner only when it fulfils four conditions viz., verbal expectancy (aakanksha),
compatibility (yogyataa), proximity (sannidhih) and intended meaning
(taatparyah/vaakyaarthah).2
(i) Verbal Expectancy (Aakaanksha)
A word only when brought in relation to other words in the right order can
convey a complete meaning. There is a mutual need amongst words to make a
meaningful sentence. Therefore, simply uttering the words ‘he did’ doesn’t
convey complete meaning. It needs to be uttered with such other accompanying
words that will convey the meaning completely. Also, these words in the other

1 Section 118 of the Indian Evidence Act 1872.

2 [Aakaanksha yogyataa sannidhih cha vaakyaartha jnaane hetuh], translated by
A.B. Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 18.
128 Contemporary Law Review [Vol. 4, No. I

order of ‘did he’ will change the meaning of the sentence. This is verbal
expectancy or aakaanksha. A sentence devoid of verbal expectancy is declared
as apramaanam.1
(ii) Compatibility (Yogyataa)
This means absence of mutual contradictions in the sentence. Where there is
mutual contradiction, the sentence cannot convey a clear meaning. This
incapacitates it from being a valid testimony, for example, ‘there was a fair
dusky man.’ Here, the words ‘fair’ and ‘dusky’ create contradiction making the
sentence incapable of conveying a meaning.
(iii) Proximity (Sannidhih/Aasattih)
In order to make a sentence intelligible, the words constituting it should be
uttered in proximity with each other. There cannot be intervals of space and
time during these utterances. That is to say, uttering one word of the sentence
and then completing it with another word the next day. A witness’s/ expert’s
testimony needs to be continuous till it is completed.
(iv) Intended Meaning (Taatparyah/Vaakyaartah)
One word may have several meanings. In the example given above, ‘fair’
may mean light color and it may also mean just and reasonable. Therefore, in
order to gather the correct meaning, the intention or taatparya of the speaker
must be considered.
Communication of the perceived or received knowledge is equally crucial to
the entire process of adducing testimonial evidence. This logical arrangement of
the sentence mandated in Nyaaya epistemology is a time-tested method of
rendering and receiving productive testimonial evidence. The semantic power of
words coupled with epistemic foundations make testimonies infallible and play
a crucial role in preventing miscarriage of justice.
Percipient Witness Testimony Under Section 60 of the Indian Evidence Act
1872: A Critical Analysis
“The stimulation of his sensory receptors is all the evidence anybody
has had to go on, ultimately, in arriving at his picture of the world”.
- W.V.O. Quine ‘Epistemology Naturalized’
Having visited Nyaaya’s epistemological foundation for the concept of
perception, Section 60 of the Act of 1872 can now be examined. Following is a
brief analysis of this provision of law of evidence in the light of its language,
intent, purpose, scope and limitations.

1 [Tathaa cha aakaanksha rahitam vaakyam apramaanam], translated by A.B.

Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 18.
2020] Parameters Governing Percipient Witness Testimony 129

Principle
Section 60 of the Act of 1872 requires oral evidence in all cases to be direct.
This provision dealing with ‘direct evidence’ in cases of oral evidence, is a
manifestation of the ‘best evidence rule’. The best evidence rule is designed to
prevent the introduction of such evidence, which, from the nature of the case,
supposes that better evidence is in possession of the party.1 Lord Esher had
expressed, “different kinds of evidence may be used to prove the same fact”.2 It
is not an impossibility to prove a fact stated through oral evidence from indirect
evidence. However, Section 60 disqualifies ‘hearsay’ evidence in all cases of
oral evidence where direct evidence is available.
Direct Evidence
By ‘direct evidence’ it is meant that whenever an evidence is required to be
adduced regarding a fact that can be sensorily perceived or an opinion that one
holds, then it must be the evidence of a witness who has directly perceived that
fact or the person who holds such opinion himself, respectively. Indirect
evidence is the evidence that is inferential and employs the process of reasoning
to establish its proposition. This may be circumstantial or presumptive evidence.
The law of evidence treats the accounts of perception or ‘direct evidence’ of any
event/happening wherein, it gives more weightage to ‘direct evidence’ as
opposed to inferences from circumstantial evidences and presumptions, expert
testimony or analogies. The reason being that in matters of direct testimonial
evidence, there is only source-dependence. That is to say, only the reliability of
the source needs to be examined here. The inference and analogy based
evidences on the other hand are premise-dependent, in addition to being source
dependent. In other words, the proof of these facts in turn depend on the proof
of various other facts forming a part of its premise.
Percipient Witnesses
Section 118 of the Act of 1872 states who can testify wherein, it provides
that all persons who can understand the questions put to them and are
capacitated to give rational answers to them can testify. These persons are
called witnesses or saakshinah. Their competence to testify as specified in
Section 118 and by Nyaaya epistemology - on the touchstone of reliability and
ability to speak of things as they are, is known as ‘aapti’.3 The term ‘witness’
itself does not find a place in the interpretation clause of the Act of 1872 but has
been dealt with definitively to the extent of stating the qualification of a

1 Sudipto Sarkar and V.R. Manohar, SARKAR ON EVIDENCE, 15th ed. 1999, 1st
Ind. rep. 2004, p. 1269.
2 Lucas v. Williams [1892] 2 QB 166.
3 [Aaptopadeshah-shabdah] N.S.- 1.1.7; [Aaptavaakyam-shabdah], translated by
A.B. Gajendragadkar and R.D. Karmarkar, TARKA SAMGRAHA OF
ANAMBHATTA, 1st ed. 2004, p. 18.
130 Contemporary Law Review [Vol. 4, No. I

competent witness in this provision. Paanini,1 has defined witness or saakshin

as the ‘one who has directly seen’.2 This definition relates to the popularly used
term ‘eye-witness’ or ‘ocular witness’. Other scholars have provided for a wider
definition for the term witness which states that a proper witness is one who has
himself either seen or heard or experienced the matter in dispute.3 This
definition relates to the term ‘percipient witness’. Similarly, the Black’s Law
Dictionary has defined ‘witness’ as someone who sees, knows or vouches for
something.4 Section 60 has spoken of witnesses who may give evidence as to a
perceivable fact or an opinion. Thus, this provision has contemplated two kinds
of witnesses: percipient and opinion witness. Of the testimonies contemplated
under this provision, the testimonies of those who have themselves seen, heard
or perceived a fact, relate to the evidence of perceivable facts. These
perceivable facts may be perceived through either of the senses. The term ‘eye-
witness’ is more popularly employed for such cases. This may be owing to the
high frequency of cases of ocular witnesses as opposed to witnesses perceiving
through other senses. But for the study of all perceptions and perceivable facts
under Section 60, the term ‘percipient witness’ may be used as an umbrella term
for all kinds of perceptions by witnesses. The Black’s Law Dictionary has
defined percipient witness as the witness who has perceived the things about
which he or she testifies.5
Perceptions Contemplated Under Section 60 of the Indian Evidence Act 1872
Section 60 of the Act of 1872, in so far as it relates to perceivable facts,
reads as:
Oral evidence must, in all cases whatever, be direct; that is to say-If it
refers to a fact which could be seen, it must be the evidence of a
witness who says he saw it; If it refers to a fact which could be heard,
it must be the evidence of a witness who says he heard it; If it refers to
a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it
by that sense or in that manner.
It can be inferred that, perceivable facts have been categorised by the
language of this provision into two kinds viz., (i) facts perceived by pure
sensory perceptions; (ii) facts perceived by any other senses or in any other
manner.

1 Indian grammarian and Sanskrit Scholar: 4th Century BCE to 6th-5th Century
BCE.
2 P.V. Kane, HISTORY OF DHARMASHASTRA, Vol. III, 3rd ed. 1993, p. 330.
3 Ibid.
4 Bryan A. Garner, BLACK’S LAW DICTIONARY, 10th ed. 2014, p. 1838.
5 Ibid., p. 1839.
2020] Parameters Governing Percipient Witness Testimony 131

(i) Pure Sensory Perceptions

The first clause of this section lays down the general rule of oral evidence to
be direct. The second and third clauses are illustrative of what can be called as
pure sensorial perceptions, where the second clause speaks of ocular evidence
and the third clause speaks about aural evidence. It is abundantly clear from the
language of Section 60 that where it is dealing facts that can be seen or heard, it
is referring to pure sensory perception and qualifying these as ‘direct evidence’.
These are the perceptions classified by Nyaaya epistemology as: (i) Ordinary
(laukika) perceptions; (ii) External (baahya) perceptions.
(ii) Perceived by ‘Any Other Sense’ or in ‘Any Other Manner’
In continuance, the provision identifies perceptions through any other sense
or in any other manner. Following the principle of ejusdem generis, the phrase
‘any other sense’ can be said to include the knowledge episodes sourced
through other sense organs like olfactory and tactual sense which may include
‘facts which could be smelled’ and ‘facts which could be touched’, respectively.
The interpretation of the phrase ‘in any other manner’ has been done to include
knowledge episodes occurring due to memory/remembrance or re-cognition. If
the identified sense organs for external perceptions are five viz., sight, smell,
auditory, tactual and taste, then knowledge episodes sourced through memory
can certainly not be included in the category of ‘pure sensory perceptions’. The
provision has thus created another category of perceptions which relate to
‘perceptions through any other sense or in any other manner’. This category of
witness may include: Internal perceptions or maanas; Memory-based re-
cognition (pratyabhijna) of the object/happening; Extra-ordinary perceptions
(alaukika) or extra-sensory perception.
Discrepancies in Percipient Witness Testimonies and their Effects
The process of a witness perceiving a fact directly through pure sensory
perception, like in the case of eye-witness, or perceived in any other manner,
and proving it by offering direct oral evidence, cannot be said to be free from
the influences of the following factors:
(a) The witnesses processing their perceptions by employing their
inferential or analogical faculties to the perceived knowledge;
(b) The witnesses being prone to having illusion of the object/event owing
to multiple perceptions arising at once as in the case of jnaana-
lakshana;
(c) The witness instituting analogy with an already cognised
object/happening which was itself based upon an incorrect cognition as
in the case of ayathaarthah smritih;
(d) The witness’s incapability to recapitulate an object/happening from
his/her memory;
132 Contemporary Law Review [Vol. 4, No. I

(e) The witness lacking ‘aapti’ or ‘not being able to give rational answers’;
and
(f) Placing heavy reliance on indeterminate perceptions (nirvikalpak
jnaanam) as opposed to the more specific circumstantial evidence only
because that indeterminate perception is a piece of direct evidence by
an ‘eye-witness’.
When these factors operate, they cause discrepancies in perception. This
amounts to processing of the knowledge perceived through bare and basic
physical senses. What needs to be examined here is, whether pure sensory
perceptions as contemplated in this part of the provision provide scope for such
knowledge episodes sourced from factors that actually cause discrepancies in
perception. Facts arising from pure sensory perceptions are those that a witness
sees, hears or perceives through such other sense organ.
What happens to that perceived knowledge after the witness psychically
processes it/ confuses it with other sensory perceptions/ creates an incorrect
memory-based picture, can no more be called as pure sensory perception.
Because, this processing of the perceived knowledge has resulted in the witness
himself diluting his/her perceptions by drawing inferences or instituting
analogies which are completely different means of valid knowledge that do not
qualify as perceived facts under this provision. Internal perceptions have effect
on external perceptions. Inter-mingling of two sensorial perceptions like smell
and sight or of sight and hearing may create an illusion of existence of a fact.
The process of re-cognition may institute an analogy with a previously
known thing. This previous knowledge in turn is prone to being distorted owing
to the lapse in time. Re-cognition is when something already known is cognised
again. This depends on the remembrance power/memory or smritih of a person.
The Supreme Court has observed that the power of perception and memorising
differs from man to man and also depends upon situation. It also depends upon
the capacity to recapitulate what has been seen earlier.1 Discrepancies in
testimony after a lapse of considerable time are humanly unavoidable.
Therefore, “minor contradictions are bound to appear in statements of truthful
witnesses as memory sometimes plays false and sense of observation differs
from person to person”. The Apex Court further observed that although minor
testimonial discrepancies caused by memory lapse have been considered as
acceptable by the Court, it is also remarked that it is “wholly unsafe” to rely
upon a version unless it is corroborated by another evidence that may
probabilise the testimony.2
It has been observed by the Apex Court that “theoretically in some cases the
emotional balance of the victim or eyewitness may be so disturbed by his

1 Daya Singh v. State of Haryana (2001) 3 SCC 468.

2 Sampath Kumar v. Inspector of Police (2012) 4 SCC 124.
2020] Parameters Governing Percipient Witness Testimony 133

extraordinary experience that his powers of perception may become distorted

and his identification may become untrustworthy…”.1 The High Court of
Madhya Pradesh has gone further to identify that “Normal, mental phenomena
includes some kinds of vrittis, viz., pramaan (right knowledge), viparyaya
(erroneous knowledge), vikalp (fancy), smriti (memories)… Practice of Yoga in
a proper way understands the extra sensory perception. Psychology studies by
Corringtom and Tyrrel have proved beyond reasonable doubt that super normal
phenomena has acceptance and there is an extra physical element in man”.2
However, epistemologically speaking, diluted sensory perceptions do not
amount to being ‘facts which could be seen’ or ‘facts which could be heard’ in
the literal interpretation of this provision. Legal epistemics would not warrant
regarding these pieces of evidence as direct evidence. If these are systematically
categorised as inferential knowledge/comparisons/presumptions etc., then it
entails disqualifying these pieces of evidence as ‘direct’ or ‘best’ evidence
under Section 60.
Scientifically Enhanced Investigation Techniques in the Light of Nyaaya
Epistemics
The study of Nyaaya epistemology can be extended to the pariksha or
examination of some scientifically lead investigation techniques. There are three
such tests viz., narco-analysis, polygraph examination and the brain electrical
activation profile test, that were until year 2010, administered involuntarily.
These tests are an aid to investigation and improve the process of fact finding.
They are also a good alternative to the ‘third-degree methods’. The question of a
person’s right against self-incrimination in context of these tests came up before
the Supreme Court.3 The Apex Court in its judgment has held that such tests can
be administered only by consent of the individual. At the outset, the Supreme
Court referring to “Self-Incrimination and the Epistemology of Testimony” by
Michael Pardo, classified the results of these inquiries as “personal
testimonies”.
Epistemologically speaking, how far reliability can be placed upon these
testimonies, specifically, testimonies in case of narco-analysis that a person
gives under the influence of a drug like sodium pentothal is question yet to be
completely settled as these inquiries have not been banned but only made
consensual. The ability to give rational answers is a precondition to testifying
before courts. In these testimonies, there is complete lack of the logically
structured sentences. The words uttered may not even be in proximity with each
other and lack sannidhih itself and thus question of complying with the other
aspects of a logical sentence barely arises. Also, whether this knowledge

1 Daya Singh v. State of Haryana (2001) 3 SCC 468.

2 Maharashi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P. AIR 2002 MP
196.
3 Selvi v. State of Karnataka (2010) 7 SCC 263.
134 Contemporary Law Review [Vol. 4, No. I

qualifies as savikalpak jnaanam or determinate perception, is doubtful.

Indeterminate perceptions often cause invalid inquiries leading to apramaa.
Towards Scepticism or Infinite Regression?
The study of standards of proof may be charged with the defect of infinite
regression or anaavastha. In fact, this charge has been faced by Indian scholars
in the course of debates. Nagarjuna came up with two theories to counter this
charge:
(i) A proof is self-evident that is used to prove something else but it does
not require a further proof.1
(ii) A piece of knowledge derives its authority and validity from something
other than itself.2
In either of the theories mentioned above, this epistemological inquiry
cannot be said to be flawed with the fallacy of infinite regression, so far as it is
adhering to the principles of logic that guide one towards valid conclusions with
a firm grounding and does not lead one to anaavastha. Scepticism can be an
incident of one’s duty of development of a scientific temper and a spirit of
inquiry under Article 51A(h) of the Constitution of India. That by itself may not
be enough to constitute a charge of infinite regression. But, scepticism
transitioning into an infinite regress or anaavastha may make the inquiry
unfeasible.
If the pursuit of truth is the philosophy of law of evidence, then it is deeply
connected with pursuit of knowledge. The reason behind this statement being a
conditional one fashioned as an ‘if-then’ hypothesis is the conceptual analysis
of what is defined as a ‘fact’ and ‘proved’ in the positive law and what can
epistemologically be regarded as the ‘truth’. It is widely believed and followed
that what may be held as truth according to one person, may not be the truth
according to another. Although related to the research in this paper, this subject
qualifies as a whole other subject to be dwelled upon separately. However
vague, the term ‘truth’ may appear to be, arriving precisely at it can be
channelised by knowing the qualifications of what can be called as correct
knowledge in the Nyaayashaastra.
Scope of Supplementing Inquiry of Perceptual Knowledge under Section 60
of the Indian Evidence Act 1872 with Nyaaya’s Epistemic Foundations
The history of codification of the evidence law in India reveals the industry
and care with which the great mass of principles and rules of English law have

1 Bimal Krishna Matilal, PERCEPTION: AN ESSAY ON CLASSICAL INDIAN

THEORIES OF KNOWLEDGE, 1st ed. 1991, 1st Ind. rep. 2016, p. 51.
2 Ibid., p. 55.
2020] Parameters Governing Percipient Witness Testimony 135

been drafted by Sir James Stephen and eventually codified.1 At the same time,
its makers have been verbose regarding the incompleteness of this code. In the
words of Justice Holmes, “However much we may codify the law into a series of
seemingly self-sufficient propositions, those propositions will be but a phase in
the continuous growth”.2 What is being studied as a ‘scope’ in this section of
the paper has in fact, been identified as a necessity by those who put this
masterpiece of legislation together. Jurists have emphasised in very specific
words: “The law of evidence is an abstract and difficult subject and like all
other things of its kind, it is still in a process of growth. To say that everything
that is good and useful is contained in the Act and nothing more will be
necessary to add to its usefulness, or to make it perfect, would be dogmatic. It
would be illusory to think that in forming our ideas on the subject, or in actual
work, we are not to travel beyond the limits assigned by the Act, and consult
English text books on the subject. We must have recourse to every possible
means that throw any light on the subject, without stopping to enquire from
which quarter it comes”.3
Another eminent jurist Mr. Norton remarked- “It appears to me idle to
expect to be able to confine the judge or the advocate to the four corners of the
Code. It will be necessary for the judge and the practitioner to refer to the well-
known text books, whenever points not specifically provided for in the Code,
present themselves. Probably some hundreds of judicial decisions will be
necessary to explain the Code, and many amendments, and still more, large
additions, will have to be made after it…”4
These remarks by the framers of this law make their expectation of resorting
to extraneous sources for safe guidelines abundantly clear. Now, regarding the
possibility of invoking principles and guidelines from the indigenous literature
of India flowing from the shaastras, it is pertinent to note that law of evidence
is lex fori.5 By the term ‘lex fori’, it is meant, law of the forum or the law of the
jurisdiction where the case is pending.6 Therefore, the matters of law of
evidence relating to admission/rejection of evidence, competence of a witness,
which evidence to prove which fact, etc., are to be governed by the law of the
country in which the question arises and proceedings take place.7 It has been
observed that earlier, “the mofussil courts believed that it was their duty to
administer the English law of evidence and a tendency towards a capricious
administration of that law prevailed. This was thought undesirable for two

1 Sudipto Sarkar and V.R. Manohar, SARKAR ON EVIDENCE, 15th ed. 1999, 1st
Ind. rep. 2004, p. 4.
2 Ibid., p. 6.
3 Ibid.
4 Ibid, p. 9.
5 Ibid., p. 26.
6 Bryan A. Garner, BLACK’S LAW DICTIONARY, 10th ed. 2014, p. 1049.
7 Supra n. 1, p. 26.
136 Contemporary Law Review [Vol. 4, No. I

reasons: first because the English law of evidence is based as it is on the social
and legal institutions of England and was not applicable here in its entirety,
owing to the peculiar circumstances of this country. Secondly, because, a
competent knowledge of the English law could then be hardly expected from the
judges, and so a strict application of that law would result in miscarriage of
justice”. 1
Thus, the eminent English jurists had made it amply clear that there is a lot
of scope for supplementing the law of evidence with relevant parameters
wherever it is found lacking them; and that, these parameters are to be
supplemented by the principles, methods and guidelines that are peculiar to the
circumstances and socio-legal setup of this country. Bentham had remarked that
“comprehensiveness of evidence is an epistemological desideratum”.2 The Law
of Evidence in its enacted form can be read with a range of pramaana theories
that actually anchor its objects, concepts, reasons and purpose and go ahead to
complement it with their epistemic and scientific approach. The definitions or
lakshanas of the pramaanas alone as given in the Nyaayasutra have the
potential to augment the interpretation clause and other central provisions of
laws of evidence. Their enunciation/uddesha and examination/pariksha further
bear the time-tested logic and have the capacity to unfalteringly supplement the
loop-holes wherever they may arise. By the supplementation of epistemological
knowledge base to the positive law, there is an evident colossal scope of
improving our definitions and creating more systems to simplify the execution
of legal processes. The meaning assigned to ‘direct evidence’ under Section 60
of the Act of 1872 exudes ample clarity in the context of inclusions and
exclusions therein. Enhancing it with the tenets that Nyaaya epistemology has to
offer, accords profundity to the system.
Constraints on Legal System for Improvising Administration of Justice
Our legal systems of administration of justice have been relentlessly
functioning for arriving at the truth. However, it is also subject to range of
constraints to practically modify and improvise its methods and thereby
innovate evidence laws. Some of these constraints are discussed hereunder:
Advocacy-Research Leading to Pseudo-Inquiries
Every advocate in the court is engaging in what is known as jalpah, i.e., a
logically arranged and systematically researched argument which is advanced in
order to win one’s case. This is in contradiction to vaadah which focuses on
establishing the truth rather than winning the matter. This is based upon
‘advocacy-research’ which ultimately lead to pseudo-inquiries. Prof. Susan

1 Sudipto Sarkar and V.R. Manohar, SARKAR ON EVIDENCE, 15th ed. 1999, 1st
Ind. rep. 2004, p. 2.
2 Susan Haack, EVIDENCE MATTERS: SCIENCE, PROOF AND TRUTH IN THE
LAW, 1st ed. 2014, p. 22.
2020] Parameters Governing Percipient Witness Testimony 137

Haack1 in her work, ‘Epistemology and the Law of Evidence: Problems and
Projects’ has distinguished the concepts of ‘genuine inquiry’ from ‘pseudo
inquiry’ and thereby dealt with the nature of ‘advocacy research’.2 In her work
titled, ‘What’s Wrong with Litigation-Driven Science?’ she has dwelled upon
‘litigation-driven research’ and defined it as the work that is undertaken for the
purpose of finding evidence favouring one side in litigation and otherwise
playing down the evidence favouring the other side.3 This litigation driven
research or advocacy research is one of the major reasons behind there being
lesser emphasis on epistemic parameters of evidence laws.
Negligence of Epistemological Virtues
Normally, lawyers are constrained with a lot of ‘non-epistemological
desiderata’ to be able to conduct allied inquiries. This results in the negligence
of a whole other dedicated body of knowledge which happens to be central to
the process of arriving at the truth. What is required is inculcation of
epistemological virtues like intellectual honesty, patience and thoroughness and
doing away with epistemological vices like self-deception, hastiness and
carelessness.4
Limitations of Research Projects
The research projects relating to criminal justice administration like the
Justice Malimath Committee Report on Reforms of Criminal Justice System,
2003; 198th Report of the Law Commission of India on Witness Identity
Protection and Witness Protection Programmes, Witness Protection Scheme,
2018 etc., have been some of the most extensive and fruitful works in reforming
the system. However, the aspects of witness identification specifically relating
to percipient witnesses are in need more figures and statistics in India as
compared to the American, Canadian and British inquiries.
It is due to such constraints that despite having a whole body of time-tested
knowledge dedicated to this vital aspect, the Indian legal system lacks in the
practical implementation of this associative knowledge base while the
westerners have gone ahead to create and dwell upon an entirely committed
field of ‘legal epistemology’.
Conclusion
The Indian intellectual heritage contained in the shaastras, have a plethora
of time tested theories that bear relevance and practical utility to inquiries
conducted in various professional disciplines. It is very interesting to study their
interface with the modern positive laws and reach the depths that these

1 Professor of Law and Professor of Philosophy at the University of Miami.

2 Susan Haack, EVIDENCE MATTERS: SCIENCE, PROOF AND TRUTH IN THE
LAW, 1st ed. 2014, p. 6.
3 Ibid., p. 199.
4 Ibid., p. 22.
138 Contemporary Law Review [Vol. 4, No. I

philosophies have to offer to the existing body of knowledge. The analysis of

the relevant provisions of Evidence Act and the pratyaksha pramaana theory
reveals that the shaastras certainly have the required dimensions to offer to the
positive law which will help in settling a lot of practical questions that arise and
are eventually settled by judicial pronouncements, but on a case-to-case basis.
It’s high time that we borrow these principles on a regular basis and merge these
two disciplines of study and thereby innovate and enrich our legislations. The
day when the principles of Indian legal epistemology embedded in the shaastras
are celebrated by practising them in the actual Courts shouldn’t be so far.

***