Chains of Conduct, Chorus of Truth

The doctrines of estoppel and the provisions governing competency and admissibility of witnesses occupy central significance under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) laying down fundamental principles aimed at ensuring fairness, consistency and reliability in civil and criminal adjudication. Estoppel functions as a mechanism to prevent parties from adopting contradictory positions especially where one party has caused another to rely on a representation thereby promoting trust, certainty and protection of equitable transactions. Meanwhile, the provisions relating to witnesses safeguard the integrity of evidence by setting out who may testify, under what circumstances, and with what limitations regarding communication, privilege and special categories such as minors or persons unable to communicate verbally. Together, these doctrines and rules seek to balance competing interests protecting persons from unfair reversal of position, while ensuring that courts receive truthful, reliable and relevant evidence for the determination of disputes.

What is the principle of estoppel?

Estoppel means that when a person, by his declaration, act, or omission, intentionally causes or allows another person to believe something to be true and to act upon that belief, he or his representative cannot later deny the truth of that thing in any suit or proceeding between them.

Is there any illustration explaining the rule of estoppel?

If A intentionally and falsely leads B to believe that a certain land belongs to A and induces B to buy and pay for it, and later the land actually becomes A’s property, A cannot later claim that he had no title at the time of sale. He is not allowed to prove his lack of title.

What are the general principles behind the doctrine of estoppel?

(a)
It is based on the maxim that a party cannot be heard to allege the contrary.

(b)
It creates a conclusive presumption against a particular party due to some act done by that party.

(c)
It is an argument directed personally (argumentum ad hominem).

What is the basic principle underlying issue estoppel?

The same issue of fact and law must have been previously determined in earlier litigation.

Is the doctrine of estoppel absolute, or does it have exceptions?

It has exceptions. There is no estoppel against statute. The doctrines of election and approbate reprobate are also subject to exceptions.

How does estoppel relate to abandonment of rights?

(a)
If abandonment of right and estoppel against a person claiming vested interest in property is established, he may be prevented from seeking legal redress or asserting a claim.

(b)
Mere waiver, acquiescence, or delay is not enough to extinguish title.

(c)
Abandonment can be inferred from conduct.

Can a tenant deny the landlord’s title?

No. A tenant or anyone claiming through the tenant cannot deny that the landlord had title to the property at the beginning of the tenancy, during or after the tenancy.

Can a licensee deny the title of the person who granted the licence?

No. A person who enters property by licence cannot deny that the licensor had title to possession at the time the licence was granted.

Can an acceptor of a bill of exchange deny the authority of the drawer?

No. An acceptor cannot deny that the drawer had authority to draw or endorse the bill.

Can a bailee or licensee deny the authority of the bailor or licensor?

No. A bailee or licensee cannot deny that the bailor or licensor had authority to make the bailment or grant the licence at the beginning.

Who is competent to testify?

All persons are competent unless the Court believes they cannot understand questions or give rational answers due to tender age, extreme old age, disease (physical or mental), or any similar cause.

Can a person of unsound mind testify?

Yes. A person of unsound mind is not incompetent unless the unsoundness prevents understanding of questions or rational answering.

How should evidence of a child witness be approached?

It must be scrutinised with care and caution, especially if the child is the sole eyewitness.

How does a court determine the competency of a child witness?

(a)
The judge forms an opinion on the child’s ability.

(b)
The child may be questioned to assess intelligence, understanding of the occurrence, and ability to speak the truth.

(c)
There is no fixed rule.

How can a witness unable to speak give evidence?

(a)
By writing or signs, made in open Court.

(b)
Such evidence is treated as oral evidence.

(c)
Court must take help of an interpreter or special educator and the statement must be videographed.

Are spouses competent witnesses?

(a)
In civil cases: parties and their spouses are competent.

(b)
In criminal cases: the accused’s spouse is competent.

Can a Judge or Magistrate be compelled to answer questions about his judicial conduct?

(a)
Not without a special order of a superior Court.

(b)
They may however be examined about other matters occurring in their presence.

Are there any illustrations explaining this rule?

(a)
A cannot compel Magistrate B to answer questions about allegedly improper recording without superior Court order.

(b)
B cannot be asked what A said during earlier proceedings without such order.

(c)
A Judge present during an alleged attack may testify about what occurred.

Are communications between spouses during marriage protected?

Yes. A person cannot be compelled or permitted to disclose communications made by the spouse during marriage, unless the spouse consents, except in suits or proceedings between the spouses or where one is prosecuted for a crime against the other.

Can evidence from unpublished official records relating to State affairs be given?

(a)
Only with permission of the department head.

(b)
The rule applies only to unpublished documents.

(c)
Improperly obtained copies do not make the documents admissible.

Why is official secrecy protected?

(a)
The candour principle (ensuring honest internal communication).

(b)
The need for informed criticism.

(c)
Privilege rules govern these situations.

Can a public officer be compelled to disclose official confidential communications?

No, if he believes disclosure would harm public interest.

Can a Magistrate, police officer, or revenue officer be compelled to reveal the source of information regarding an offence?

No. They cannot be compelled to say when they received such information.

What communications between an advocate and client are protected?

(a)
All communications made during the professional engagement.

(b)
Contents of documents seen in that capacity.

(c)
Advice given by the advocate.

When is such communication not protected?

(a)
It is made in furtherance of an illegal purpose.

(b)
The advocate observes a fact showing a crime or fraud committed after the engagement began.

Does it matter whether the client pointed out the fact to the advocate?

No. Protection does not depend on whether the client drew attention to the fact.

Does the obligation of confidentiality continue after the engagement ends?

Yes.

Are there any illustrations explaining protected and unprotected professional communications?

(a)
A client admitting past forgery to seek defence — protected.

(b)
A client seeking to use a forged deed for obtaining property — not protected.

(c)
Advocate discovering a fraudulent entry made after his engagement began — not protected.

Who else is bound by professional confidentiality rules?

Interpreters and clerks or employees of advocates.

Does a party waive privilege by giving evidence?

No. A party testifying does not automatically consent to disclosure of privileged communications.

If a party calls his advocate as a witness, is privilege waived?

Only if the party questions the advocate on privileged matters.

Can a person be forced to disclose confidential communication with a legal adviser?

No, unless he offers himself as a witness. Even then, disclosure is limited to what is necessary to explain his testimony.

Can a witness who is not a party be compelled to produce title deeds?

No, unless he has agreed in writing to produce them.

Can a person be compelled to produce documents or electronic records that someone else could refuse to produce?

No, unless that other person consents.

Can a witness refuse to answer a question because it may incriminate him or expose him to a penalty?

No. A witness cannot refuse on that ground.

What protection is given to such a witness?

Any compelled answer cannot:

(a)
Subject him to arrest or prosecution, or

(b)
Be used in criminal proceedings, except for prosecution for giving false evidence.

What is the policy underlying this protection?

(a)
To secure all possible evidence for justice.

(b)
To ensure a witness speaking truth is not penalised.

What does “answers the witness is compelled to give” mean?

(a)
Compulsion arises from the legal duty to answer truthfully.

(b)
Not dependent on judicial pressure.

(c)
Any voluntary answer also counts as compelled and cannot be used against the witness.

Is an accomplice a competent witness?

Yes.

Can a conviction be based on accomplice testimony?

Yes, if the testimony is corroborated.

How do the rules on accomplices operate together?

(a)
Conviction on accomplice evidence is legally valid.

(b)
Courts generally seek independent corroboration.

(c)
Several accomplices may corroborate each other if their statements are independently given without prior concert.

Is there any required number of witnesses to prove a fact?

No. No specific number is required.

Therefore, the dual pillars of estoppel and witness competency under the BSA reflect a careful calibration of equity, procedural fairness and evidentiary soundness. Estoppel prevents injustice by holding parties to their prior representations and conduct, discouraging opportunistic denials after benefiting from a transaction or causing reliance. The witness-related provisions, on the other hand, strive to open the courts to all competent individuals including children, persons with disabilities or communication difficulties or even parties and their spouses subject to safeguards that ensure the reliability and fairness of the evidence. This legal architecture thus aims to foster both substantive justice and procedural legitimacy, promoting confidence in transactions and ensuring that fact finding remains comprehensive, balanced and respectful of basic human and societal values.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.