Section 118

Section 118 establishes the default rule of witness competency — everyone is competent unless the court specifically finds otherwise. The IEA's approach is functional, not categorical: it does not set a minimum age for witnesses, it does not automatically exclude all persons with mental illness, it does not exclude children. The test is functional: can this person understand questions and give rational answers? **The functional test — not categorical exclusion:** The IEA rejects categorical exclusions (e.g., 'persons below age X are incompetent'). Instead, the court applies a functional test: - Tender years: a 4-year-old may be incompetent to testify in some cases; a 7-year-old may be competent in others — depends on the individual child. - Mental illness: a person with schizophrenia is not automatically incompetent — if they can understand questions and give rational answers at the time of testimony, they are competent. - Extreme age: very elderly persons with dementia may be incompetent; elderly persons with full mental faculties are competent. **The Explanation — lunatics may testify:** The Explanation explicitly says a lunatic is not incompetent to testify unless their condition prevents them from understanding questions and giving rational answers. This is a remarkably progressive provision for 1872 — acknowledging that mental illness is not monolithic and that a person may have episodes of mental illness while being perfectly competent at other times. **Child witnesses — no minimum age:** Indian courts can receive testimony from very young children if the preliminary examination satisfies the court of the child's competency. The judge typically questions the child informally ('Do you know what a lie is? What happens if you tell a lie?') to assess basic understanding. POCSO Act cases frequently involve young child witnesses, and Section 118's functional test means children as young as 5-6 can testify if they demonstrate understanding. **Voir dire — the preliminary competency examination:** Before receiving testimony from a potentially incompetent witness, the court typically conducts a 'voir dire' — a preliminary examination to assess competency. This is not a formal requirement in the IEA but is judicial practice. **Section 118 vs privilege vs compellability:** Competency (Section 118) is different from privilege (Sections 122–132 IEA) and compellability (Section 132 IEA). A person may be competent to testify but have a privilege (husband-wife privilege under Section 122). A person may be competent and have no privilege but still face compellability questions.