Sajjad Husain LawSajjad Husain Law Associates

Introduction

Every rule in this chapter about privilege, competency, and compellability rests on one foundational default: everyone can testify unless a court finds a specific reason they cannot. That default is easy to overlook precisely because it rarely needs stating out loud — until a witness is a young child, an elderly person, or someone living with a mental illness, and the question of whether they may take the stand at all suddenly becomes real.

Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the opening provision of Chapter IX ("Of Witnesses") — and, since this series has worked backward through the chapter, it fittingly closes out a run that began with Section 129. This final article of the chapter explains the universal presumption of competency, a recent 2026 ruling on witnesses with mental illness, and the decades-old precedent that still governs how child witnesses are examined today.

Section 124 BSA and Section 118 IEA: Same Test, Modernised Language

Section 124 carries over the full substantive test of Section 118 of the Indian Evidence Act, 1872 — confirmed across independent bare-act sources — with one deliberate, welcome change: the Explanation's reference to a "lunatic" and "lunacy" has been replaced with "a person of unsound mind" and "unsoundness of mind." The legal test itself has not moved at all; only the outdated, stigmatising terminology has been retired.

The Default Is Competence, Not Incompetence

The structure of the sentence matters as much as its content. Section 124 does not list categories of people who are allowed to testify — it declares that all persons are competent, full stop, and then carves out a narrow exception for the Court to apply only where it actually finds the witness cannot understand questions or answer rationally. The burden sits with demonstrating incapacity, not with proving capacity. Four grounds are named — tender years, extreme old age, disease of body or mind, and "any other cause of the same kind" — and that closing catch-all is deliberately open-ended, allowing courts to recognise comparable incapacitating conditions the four specific categories do not name individually, without expanding the test itself beyond its functional core: understanding and rational response.

Child Witnesses: The Rameshwar Standard

The leading authority on "tender years" remains Rameshwar v. State of Rajasthan, AIR 1952 SC 54, decided over seventy years ago and still governing today. The case involved an eight-year-old girl's testimony in a rape prosecution. The Supreme Court held that a child's competency does not depend on formally administering an oath — what matters is whether the child understands the duty of speaking the truth. An omission to administer an oath, even to an adult, the Court held, affects only the credibility of the testimony, not its competency or admissibility. Judges are encouraged to record their assessment that a child witness understands this duty, but even without a formal certificate to that effect, the surrounding circumstances can establish that the court was satisfied of it.

Witnesses With Mental Illness: The 2026 Clarification

In Appukuttan v. State of Kerala, 2026:KER:18933 (6 March 2026), Justice A. Badharudeen of the Kerala High Court addressed the competency of a witness with a diagnosed mental illness, expressly connecting the analysis to both Section 118 IEA and Section 124 BSA. The Court confirmed that a person with mental illness is not automatically barred from testifying — incompetency arises only where the specific condition genuinely prevents that individual from understanding questions or giving rational answers. The judgment noted the BSA's terminology shift from "lunatic" to "person of unsound mind" directly, describing Section 124 as containing "a similar formulation" to the old Section 118, while reaffirming that the functional test — not any diagnostic label — is what actually determines competency.

Worked Example One: A Child Witness

A seven-year-old is the sole witness to an assault. Before recording her evidence, the trial court briefly questions her and forms the view that, while she may not grasp the formal concept of an oath, she clearly understands that she must tell the truth. Following Rameshwar, the court can proceed to take her evidence without administering a formal oath, and that evidence remains fully competent and admissible — the absence of an oath goes, at most, to how much weight her testimony is ultimately given, not to whether it can be heard at all.

Worked Example Two: A Witness With a Diagnosed Mental Illness

A witness with a documented history of a psychiatric condition is called to testify in a property dispute. Opposing counsel argues the witness should be barred outright because of the diagnosis. Following Appukuttan, the court cannot disqualify the witness on that basis alone — it must specifically assess whether this particular witness, notwithstanding the diagnosis, can understand the questions being asked and provide rational answers. If the court is satisfied on that functional question, the witness is competent, regardless of the underlying diagnosis.

Why This Matters in Practice

For counsel preparing a young, elderly, or unwell witness, the practical task is demonstrating — through the witness's own responses during a preliminary assessment — that they understand questions and can answer rationally, rather than assuming disqualification on the basis of category alone. For judges, both Rameshwar and Appukuttan place the responsibility squarely on making an individualised assessment, ideally recorded on the file, rather than relying on assumptions about what a person of a certain age or diagnosis can or cannot do. For opposing counsel, challenging a witness's competency requires more than pointing to their age or a diagnosis — it requires showing the specific incapacity actually prevents understanding or rational response.

Key Takeaways

1. Section 124 BSA carries over Section 118 IEA's substantive test unchanged, updating only the Explanation's terminology from "lunatic" to "person of unsound mind."
2. All persons are presumed competent to testify; incompetency is a narrow, court-determined exception, not a default assumption about any category of person.
3. Rameshwar v. State of Rajasthan, AIR 1952 SC 54, confirms a child witness's competency turns on understanding the duty to speak truth, not on formally taking an oath.
4. Appukuttan v. State of Kerala, 2026:KER:18933, confirms a mental illness diagnosis does not automatically disqualify a witness — the court must assess the specific individual's functional capacity.
5. The catch-all "any other cause of the same kind" is read narrowly, alongside the four named categories, under the ejusdem generis principle.

Conclusion

Section 124 is where Chapter IX begins, and closing this run here brings the chapter full circle — from the foundational question of who may testify at all, through witness competency for spouses and those unable to speak, privilege for legal advice and marital confidence, judicial and state-affairs protections, and the specific rules on accomplices, compelled disclosure, and the number of witnesses required to prove a fact. Together, the sixteen sections of Chapter IX — Sections 124 through 139 — form a complete, carefully balanced architecture governing who can speak in an Indian courtroom, what they can be made to say, and what they never have to reveal at all.