Who Is a Competent Witness Under the BSA (Section 124): Evidence Act 118 Mapping (2026)
Who can give evidence in an Indian court, how a child or a person of unsound mind is treated, and what Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 says. Which old Evidence Act section it replaced. Last verified October 2026.
Explainer · Evidence · BSA 2023
Can a seven year old child describe what they saw? Can a person with a mental illness give evidence? Indian law answers these with a single, practical test. It does not ask about age or label. It asks whether this person can understand the questions and give rational answers. Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) sets the rule on who is a competent witness. This explainer explains the test, how children and persons of unsound mind are treated, and the old Evidence Act section it replaced. Last verified October 2026.
- What it is: the test for who may give evidence in court.
- New-code section: Section 124 of the Bharatiya Sakshya Adhiniyam, 2023.
- Old section it replaced: Section 118 of the Indian Evidence Act, 1872. This is an evidence rule, so there is no punishment attached.
- The test: a person is competent unless the court finds they cannot understand questions or give rational answers, due to age, extreme old age, disease, or a similar cause.
- Tracking cases: Claw tracks matters under this section across 9,102 forums.
01The problem of who may testify
Many of the most important witnesses are the ones a system might be tempted to exclude. The only eyewitness to a crime may be a child. A key account may come from an elderly relative, or from a person with a mental illness. If the law shut these people out by category, the truth could be lost.
Indian evidence law takes the opposite approach. It starts from the position that almost anyone may testify, and only excludes a person when a specific problem stops them from understanding and answering questions. Section 124 states that rule.
02The test in Section 124
Under Section 124, all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers, by tender years, extreme old age, disease (whether of body or mind), or any other cause of the same kind.
Competency does not turn on age or diagnosis. It turns on whether the person can understand the question and answer it rationally.
Two points follow. First, competency is about the ability to communicate rationally, not about whether the witness is telling the truth. Truthfulness is a matter of credibility, which the court weighs later. Second, the court decides competency case by case, often by asking the witness a few preliminary questions.
03Children as witnesses
Indian law fixes no minimum age for a witness. A child may testify if the court is satisfied the child understands the questions and can answer them rationally. The judge usually checks this first, by putting simple questions to the child, before the evidence is recorded.
Oath and safeguards
A very young child may be allowed to give evidence without an oath, after the judge is satisfied the child understands the duty to speak the truth. Courts also apply care when they rely on a child’s evidence, and often look for support from other material, though a child’s evidence can be accepted on its own if it is reliable.
04Persons of unsound mind
A person of unsound mind is not automatically barred. The explanation to Section 124 makes the test practical: such a person is competent unless their condition actually stops them from understanding the questions and giving rational answers.
This is a notable change in language. The old Evidence Act used the word “lunatic”. Section 124 of the BSA replaces it with “person of unsound mind”, which is both more respectful and clearer. The underlying test is the same: ability to understand and answer, judged at the time of testifying.
05Old law to new law: the mapping
The competency rules moved from the Evidence Act to the BSA with the substance intact.
| New law (BSA, 2023) | Old law (Evidence Act, 1872) | Subject |
|---|---|---|
| Section 124 | Section 118 | General rule on who is a competent witness |
| Section 125 | Section 119 | A witness unable to communicate verbally (evidence by writing or signs, treated as oral) |
The old Sections 120 and 121, on parties and spouses as witnesses and on the competency of judges and others, were carried forward within the BSA as well. Check the current text for the exact numbering if you rely on those.
06Practical points
- Ask for a preliminary check. With a child or a vulnerable witness, invite the court to put preliminary questions and record its satisfaction on competency.
- Keep competency and credibility separate. An objection that a witness is unreliable is not an objection to competency. Do not conflate the two.
- Use Section 125 for witnesses who cannot speak. A witness who cannot communicate verbally may give evidence in writing or by signs in open court, and that evidence is treated as oral evidence.
- Record the basis. Where competency is in issue, make sure the order notes why the witness was found able, or unable, to testify.
For related rules, see leading questions and cross-examination, hostile witnesses under the BSA, and BSA vs Evidence Act key changes.
07Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Whether a child or a vulnerable witness is competent is decided on precedent as much as on the bare section. Claw lets you search 30 crore+ judgments on Section 124 and the old Section 118 in under 5 seconds, drawing on the Supreme Court from 1950 and the High Courts from 1990, so you can find how courts handled a witness like yours. You can also follow a live matter under this section, by party or advocate name, through the cases, orders and hearings it tracks across 9,102 courts, benches and forums. Begin at the all-courts case search hub. Open a free Claw account to research competency rulings and to keep your own trial matter in view.
Claw does not use customer case documents to train its AI models.
08Sources and further reading
- India Code (Bharatiya Sakshya Adhiniyam, 2023): indiacode.nic.in
- Ministry of Home Affairs (new criminal laws): mha.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text of the BSA and take advice from counsel before you act.
09Frequently asked questions
Who is a competent witness under the BSA?
Under Section 124 of the Bharatiya Sakshya Adhiniyam, 2023, all persons are competent to testify unless the court considers that they cannot understand the questions put to them or give rational answers, because of tender years, extreme old age, disease of body or mind, or a similar cause. It replaces Section 118 of the Indian Evidence Act, 1872.
Can a child be a witness in India?
Yes. There is no minimum age. A child may testify if the court is satisfied the child can understand the questions and give rational answers. The judge usually checks this with a few preliminary questions, and a very young child may depose without an oath.
Can a person of unsound mind give evidence?
Yes, unless their condition actually prevents them from understanding the questions and giving rational answers. Section 124 replaced the old word lunatic with person of unsound mind, but kept the same practical test.
Which old section does BSA Section 124 replace?
Section 118 of the Indian Evidence Act, 1872. The related provision on a witness who cannot communicate verbally, old Section 119, now sits in Section 125 of the BSA.
Is there a punishment under Section 124?
No. Section 124 is a rule of evidence, not an offence. It decides who may testify, and carries no punishment.
Can I research competency rulings in Claw?
Yes. Claw searches 30 crore+ judgments on Section 124 and the old Section 118 in under 5 seconds, reaching the Supreme Court from 1950 and the High Courts from 1990, and it tracks related matters by party or advocate name across 9,102 courts, benches and forums. It tracks and researches the matter but does not give legal advice.