Bharatiya Sakshya Adhiniyam, 2023
Section 124
Who may testify
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.—A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.
Why this exists
Older evidence law (and English common law before it) sometimes barred entire categories of people — children, the mentally ill, certain religious or social groups — from testifying at all. Indian law reformers rejected blanket bans and instead adopted a functional test: what matters is whether a person can actually understand and answer questions sensibly, not their age, illness, or label. This provision continues that principle, carried over almost word-for-word from Section 118 of the old Indian Evidence Act, 1872, into the Bharatiya Sakshya Adhiniyam, 2023.
How courts read it
Under the identical predecessor provision (Section 118, Evidence Act 1872), courts developed a practical test: the judge conducts a preliminary questioning (voir dire) of a child or otherwise vulnerable witness to check if they understand the duty to speak the truth and can answer rationally, rather than fixing any minimum age. In Rameshwar v. State of Rajasthan (1952), the Supreme Court held that a child's evidence is admissible if the court is satisfied the child understands the questions, though courts should look for corroboration as a matter of prudence. Similarly, courts have held that a person with a mental illness or intellectual disability is not automatically disqualified — competence is assessed case by case based on the witness's actual capacity to understand and respond, consistent with the Explanation to this section.
Common misconceptions
- Myth: Children can never testify in court.
Fact: Children can testify if the judge is satisfied they understand the questions and can answer rationally; there is no fixed minimum age. - Myth: A person with any mental illness is automatically barred from being a witness.
Fact: The Explanation clarifies that a person of unsound mind can testify unless their condition actually prevents them from understanding questions and answering rationally. - Myth: Very old people cannot be reliable witnesses.
Fact: Old age alone does not disqualify a witness; the court checks the person's actual capacity to understand and respond.