INTRODUCTION
In the courtroom, where every word carries weight, the testimony of a witness is often the fulcrum upon which justice pivots. The Indian Evidence Act, 1872, a foundational legal text, provides a carefully structured framework for the examination of witnesses. Among its many provisions, Sections 135 and 136 deal specifically with the order of production and the admissibility of witness evidence. Though they may seem procedural at first glance, these sections carve out important privileges and protections for witnesses and ensure that their testimony serves the cause of justice rather than distorting it.
To understand these privileges, it’s vital to step into the larger context of the judicial process where judges balance procedural fairness with the search for truth. Witnesses, while central to this pursuit, must not be reduced to mere instruments of advocacy. Sections 135 and 136 stand at this intersection—ensuring structure without compromising fairness.
Section 135: Order of Production and Examination of Witnesses
Section 135 reads:
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court.
This might appear to delegate discretion entirely to procedural codes or to the judge. Yet, embedded within this provision is a protective layer for witnesses. It gives the court the power to adjust the sequence of examinations if doing so is necessary to protect a witness from intimidation, undue pressure, or fatigue.
While the Code of Civil Procedure and the Code of Criminal Procedure offer skeletal guidance on how evidence should be recorded, they don’t always account for the lived realities of vulnerable or crucial witnesses. Section 135 therefore acts as a flexible tool. For example, a judge may allow an old or a medically unfit witness to testify out of turn. A prosecution witness facing threats might be permitted to testify early or through video conferencing. A witness scheduled to travel abroad might be examined immediately to ensure that their testimony is not lost.
Thus, Section 135 doesn’t only concern itself with procedural order—it acknowledges that witnesses are people with constraints and vulnerabilities, and that the court can and must make accommodations when justice so requires.
Section 136: Judge to Decide Admissibility of Evidence
Section 136 offers a different kind of protection. It reads:
When either party proposes to give evidence of any fact, the judge may ask in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
This section grants the presiding judge the authority to screen evidence before it reaches the record. While primarily aimed at ensuring that irrelevant or prejudicial material doesn’t get introduced, it simultaneously offers privileges to witnesses—shielding them from being interrogated or harassed on matters that bear no relevance to the issues in trial.
This is crucial in sensitive cases—particularly those involving sexual offences, reputation damage, or public office. For instance, in a criminal trial for rape, a defence counsel cannot indiscriminately cross-examine the prosecutrix about her past sexual history unless relevance is demonstrated and accepted by the court. Section 136 empowers the judge to stop such questioning at the threshold, thereby protecting the dignity and privacy of the witness.
The privilege here isn’t absolute, but it is discretionary and fact-sensitive. The court must weigh the probative value of the proposed evidence against the potential harm or embarrassment it may cause to the witness. This gatekeeping role is one of the judiciary’s most important responsibilities, especially in adversarial proceedings where cross-examinations can become instruments of humiliation rather than truth-seeking.
Interplay with Other Provisions and Judicial Attitudes
The real power of Sections 135 and 136 is seen in how they interact with other protective provisions in the Indian Evidence Act. Section 146, for example, governs what questions can be asked during cross-examination. Section 148 gives judges discretion to disallow scandalous or irrelevant questions. Sections 135 and 136 work in tandem with these provisions, creating a net of judicial control over the trial process.
Courts in India have not hesitated to interpret these sections liberally to protect witnesses. In State of Punjab v. Gurmit Singh (1996), the Supreme Court made it clear that the dignity of witnesses, especially women, must be preserved in courtrooms. The trial process must not become a second victimisation. The underlying tone of Section 136—the necessity to establish relevance before allowing a question—is an antidote to such misuse.
Another example comes from the Delhi Domestic Working Women’s Forum case, where the court observed that trials should not become instruments of embarrassment or character assassination. Section 136 grants the judge an early opportunity to prevent this, keeping irrelevant personal attacks out of the evidentiary record.
Witness as a Participant, Not a Victim of Process
The broader legal landscape has been increasingly sensitive to the rights and privileges of witnesses. Witness protection schemes, video conferencing arrangements, and in-camera proceedings are now common features in Indian courts. In this evolving context, Sections 135 and 136 do not operate in isolation. They signal the judiciary’s active role in managing the flow of evidence and protecting witnesses from procedural abuse.
Moreover, the power of the court to regulate the order and admissibility of evidence also helps to create an environment where witnesses feel safe and respected. This fosters better testimony, more cooperation, and ultimately, a truer picture of events. The old model—where witnesses were compelled to endure marathon cross-examinations on trivial or humiliating matters—is slowly giving way to a more humane approach, largely made possible by sections like 135 and 136.
The Silent Strength of Judicial Discretion
Much of the strength of Sections 135 and 136 lies in their silence. They do not dictate a rigid set of rules. Instead, they place trust in the discretion of the judge—a discretion shaped by legal training, common sense, and compassion. It is precisely because of this open-endedness that these provisions have stood the test of time.
When exercised wisely, this discretion ensures that the courtroom does not become a battlefield but remains a space for calm, careful truth-seeking. It ensures that witnesses are not sacrificed at the altar of adversarial advocacy. And it guarantees that irrelevant noise does not drown out the real issues.
Conclusion
Sections 135 and 136 of the Indian Evidence Act may seem modest in scope, but their role in protecting witness privileges is profound. They grant the court power to regulate the flow and nature of witness evidence, ensuring both relevance and dignity in proceedings. These sections recognise that witnesses are not just tools for lawyers to manipulate but citizens who step into the courtroom to aid justice.
By allowing courts to tailor proceedings to the circumstances of each witness and each case, these provisions introduce flexibility without compromising the integrity of the legal process. In an age when justice is increasingly measured not just by outcomes but by the fairness of the process, these sections are more relevant than ever. They remind us that how we treat witnesses is not a procedural footnote—it is a measure of the justice system itself
CONTRIBUTED BY : LAKSHAY NANDWANI (INTERN)