सं Samvidhan

Bharatiya Sakshya Adhiniyam, 2023

Section 124

Who may testify

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.