IMPORTANCE OF OATH AND ITS IMPACT ON JUSTICE DELIVERY SYSTEM WITH A SPECIAL FOCUS ON SUB-ORDINATE JUDICIARY

IMPORTANCE OF OATH AND ITS IMPACT ON JUSTICE DELIVERY SYSTEM WITH A SPECIAL FOCUS ON SUB-ORDINATE JUDICIARY

By  Dr. T.Padma

MA (Economics)., MA (Lit)., MA (J & MC)., MBA.,

PGDCL., PGADR., PGDHR., LLM., PhD (Law)

I.       Introduction

Law Commission while forwarding its twenty eight report on 28/05/1965 for the Indian Oaths Act, 1873 to the Ministry of Law, Government of India, has stated that the reason for taken up for revision as follows:

“One of the functions of the Law Commission is to revise Central Acts of general application and importance.  The Indian Oaths Act, 1873, falls in this category.  It is a short Act.  The obligation of witnesses to state the truth arises from this Act.  Section 14 of the Act requires a person giving evidence before any court or person authorized by the Act to administer oaths and affirmations, to state the truth on the subject on which he is giving evidence.  The administration of oath to witnesses is one of the securities devised for ensuring their trustworthiness.  We have therefore, taken up the revision of this Act of our own motion, without any reference from the Government”.

The very fact that the law commission has taken up the Indian oaths Act, 1873 on their own without any reference from the Government shows importance attached to this legislation.  

Reference may be made in this context to the well-known observations of Lord Atkin in the famous case of Donogue vs. Stevenson (1932 A.C. 562, 579-584)

“We need not dilate on this point.  A glance at the modern statute book of any country will provide innumerable instances of statutory relations which have supplanted purely contractual relations. ‘The doctrine of laissez faire or naked individualism’ of the eighteenth or early nineteenth century is a far cry from the social and juristic philosophy of the second half of the twentieth century.  The moment a person appears before the court as a plaintiff and drags the other party before the court as a defendant that very moment the two stands to each other in the relation of plaintiff and defendant, and the court becomes the arbiter of their disputes.  The court is bound, therefore, to decide the dispute according to known and well-established rules of judicial procedure. After that relationship has been established, the decision of the dispute should not be left to the mere statement of the person taking the special oath”.

II.   Position in USA and UK

In USA it is obligatory on the part of the chief executive officer and chief financial officer of public companies to certify personally under oath in writing that their company’s SEC filings are materially correct as per the norms of the Securities and Exchange Commission (SEC) Alternatively, the CEO or CFO may submit a sworn written statement “describing the facts and circumstances that would make such a statement incorrect.” This certification must be filed with the SEC within the stipulated time. When the stipulation as to swear on oath to the truthfulness of their accounts is insisted upon during 2002, several of the Chief Executives of the corporates have asked for extension of time on the ground that they are not yet ready to take their oaths. This itself shows   how much importance, that the Americans attaching to the oath. Americans take oaths more seriously not because they are more truthful but because they are fearful of being punished if they are caught lying.

Situation is no different in UK. A typical example is the conviction and debarring from legal practice of ex conservative politician and novelist Jeffrey Archer. 

III.            Indian scenario

Evidence in courts is to be given under oath. The Oaths Act 1969, which replaced the Indian Oaths Act 1873, uses the standard `truth, whole truth and nothing but the truth' phraseology, and requires that oaths be administered in all lower courts by the presiding officer himself. In disciplinary proceedings against public servants, evidence is not taken on oath (even though these enquiries, as a result of a series of judicial pronouncements over the years, have acquired many of the other characteristics of a criminal trial), but witnesses are nevertheless under a legal obligation to tell the truth. Similar is the case in quasi-judicial proceedings.

In practice, the situation is different in India. The oath, as administered by Court in this country has become a mere formal ritual, and it is generally administered by a member of the ministerial staff, sometimes even by a peon of the court. The swearing of oaths in the name of God, elaborate reference to the ‘whole truth and nothing but the truth’ or the placing of the witness hand on a book considered holy by him are now by and large confined to the cinema/ TV screens.  Affidavits before notary can usually be ‘sworn’ without the deponent even appearing in person.  Administered in this manner, the oath loses all its sanctity.  In order that the oath may be administered with due solemnity, that except in the case of the Supreme Court and High Courts, it should be administered by the Judge himself.

In this context Sec. 3, 4 and 6 of the oaths Act, 1969 (Act. 44 of 1969) which are relevant are re-produced below. 

Sec 3: Power to administer oaths:

(1)  The following courts and persons shall have power to administer, by themselves, or subject to the provisions of sub;- section (2) of Sec 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:-  

(a)  all courts and persons having by law or consent of parties authority to receive evidence

(b)  The commanding officer of any military, naval or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.

(2)  Without prejudice to the powers conferred by sub-section (1) or by or under  any other law for the time being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf:

(a)  by the High court, in respect of affidavits for the purpose of judicial proceedings: or.

(b)  by the State Government, in respect of other affidavits.

Sec 4: Oaths or affirmations to be made by witnesses, interpreters  and jurors : 

(1)  Oaths or affirmation shall be made by the following persons, namely:

(a)  all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence:

(b)  interpreters of questions put to, and evidence given by, witnesses, and

(c)  jurors

          

Sec 6: Forms of oaths and affirmations: 

(1)   All oaths and affirmations made under Sec.4 shall be administered according to such one of the forms given in the schedule as may be appropriate to the circumstances of the cases,  provided that if a witness in any judicial proceeding desires to give evidence  on oath or solemn affirmation in any form common amongst, or held binding by persons of the class to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the court may, if it thinks fit, not withstanding anything herein before contained, allow him to give evidence on such oath or affirmation.

(2)   All such oaths and affirmations shall, in the case of all courts other than the Supreme   Court and the High Courts, be administered by the presiding officer of the court himself, or, in the case of a Bench of Judge or Magistrates by any one of the Judges or Magistrates, as the case may be.      

IV. Perjury and False Evidence

Perjury is defined as the offence of giving false evidence. When a person, who is legally bound by an oath to tell the truth, makes a statement, which is false, and which he knows to be false, he is guilty of perjury.

It is taken for granted that the Indian judicial system turns a blind eye to the incidence of perjury. Although perjury occurs regularly in the Indian courts, nothing concrete is done to eradicate this evil. It is shocking when one considers the number of witnesses who lie under oath in courts every day. This insidious practice erodes the very fabric of justice.

The widespread prevalence of perjury and false evidence has serious consequences. The large number of prosecutions of rich and powerful end with acquittal. A large number of murders and other grave crimes which have their roots in unsettled or unfairly settled civil disputes. So ubiquitous is false evidence, that it has become a near-universal practice for defence lawyers to conclude their cross examinations.

The year 2009 has witnessed a biggest corporate fraud in the corporate history of India in ‘Satyam’ as to fudging and falsification of accounts, inspite of the fact that the statement of accounts of a company should reflect the true and fair state of affairs of the company as per the provisions of the Companies Act, 1956. This reveals the magnitude of the problem. This case is an eye opener to all of us and shows how much credence we are giving to this problem and how come a big Auditor firm like PwC have endorsed with their Audit certification.       

Most advocates in India think nothing of `instructing' or `coaching' `their' witnesses on how to answer questions in court. The practice is rampant of parties in civil, criminal and disciplinary cases approaching witnesses and bribing or threatening them into turning `hostile' to the party which calls them. Giving false statements to public servants is also de rigueur. Since most cases in India are appealed to the higher courts, it might seem that the manner in which evidence is taken in the lower courts or before administrative authorities is not critical. Nothing could be farther from the truth. Appeals from the lower courts are generally on points of law or on appreciation of evidence, and as far as the actual evidence is concerned what is recorded by the lower courts or quasi-judicial fora in most civil, criminal and disciplinary matters is usually final.

V.     Penal consequences

The Indian Penal Code contains elaborate provisions defining offences and fixing sentences for a variety of situations where false evidence is given in Chapter X and Chapter XI. The record in enforcing these sections of the Penal Code is however dismal. Prosecution for false evidence is extremely rare and the fear of such prosecution even rarer.

VI. Important Judicial pronouncements

A.     Best Bakery Case:

The whole issue of perjury has received a new perspective and relevance with the several changes that Zaheera Shaikh, the key witness in the Best Bakery case, has been making in her statements in court. This has caused legal experts to suggest that Zaheera may attract suo motu contempt and perjury. Surprisingly though, when both Zahira and her mother claimed that they were forced to lie under oath after being threatened by local politicians and goons, the Supreme Court merely decided to order a retrial of the case outside Gujarat. The whole issue of perjury was brushed aside.

B.     Madras High Court Advocates Association Vs. Dr. A.S. Anand, Hon. The CJI and others:

     

In this case the Supreme Court has said, "unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts also, "most of the witnesses make false statements to suit the interests of the parties calling them." The Court also ordered a complaint of perjury to be filed against Advocate R. Karuppan, who was also president of the Madras High Court Advocates Association. The apex court, while stating, "If the system is to survive, effective action is the need of the time," also acknowledged the fact that perjury was "not an exception to the general practice being followed by many of the litigants in the country." Unfortunately, however, one must consider that Karuppan may well have been able to elude the law, if the aggrieved party not been Chief Justice of India, A.S. Anand, himself.

C.     BMW hit-and-run Case:

After watching the original footage of the sting operation provided by NDTV, the Supreme Court upheld the conviction of criminal lawyer R K Anand for contempt of court for attempting to influence key witness Sunil Kulkarni in the 1999 BMW hit-and-run case. The apex court, however, set aside the conviction of Special Public Prosecutor I U Khan, who had also been debarred by the Delhi High Court from practising for four months along with Anand. The court described sting operation as being in the public interest. It also said that it was not a trial by the media and had served a public purpose. The sting exposed Anand persuading Kulkarni to change his testimony to save prime accused Sanjeev Nanda in collusion with I U Khan.

The High Court had convicted the duo for obstructing the administration of justice and had barred them from appearing in the High Court and other subordinate courts for four months and had fined them ` 2,000 each. Earlier, the Delhi High Court upheld the conviction of Sanjeev Nanda. Justice Kailash Gambhir, however, had reduced Nanda’s jail term from five to two years. Besides Nanda, the court had also sentenced Rajiv Gupta and Bhola Nath to a year and six months in jail, respectively. The court convicted Nanda under the Section 304 (2) of the Indian Penal Code (IPC), dealing with culpable homicide not amounting to murder. Nanda, allegedly in an inebriated state, was accused of mowing down seven people with his high speeding BMW car in the wee hours of January 10, 1999 in Lodhi Colony area.

D.    Prem Chand Paniwala Case:

The judgment of Supreme Court in Prem Chand Paniwala case threw light on the manner in which the police themselves abet perjury in criminal cases. Paniwala was a witness, regularly called upon by the Delhi police to substantiate in most cases falsely a particular testimony. He also produced the summons he received in hundreds of criminal cases. Later on, Paniwala decided to stop appearing as a stock witness. The police retaliated by implicating him in a couple of criminal cases and even initiated action to extern him from Delhi. This finally prompted him to take recourse in the Supreme Court. What is most interesting to note is that though the Supreme Court reprimanded the police for abusing the judicial process with their stock witnesses, it fell short of reopening the other cases that Paniwala had testified in. The reason: the courts are just too busy!

VII. Oath shall be administered by the Presiding Officer

Sec. 3(1) clearly says that the person/persons who vested the power upon them by the Law have to administer oath by themselves.  However, Sec, 6 (2) of the Act further emphasised that all oaths and affirmations shall be administer by the proceeding officer of the court himself or in the case of a bench of Judge or, Magistrates by any one of the Judges or Magistrates as the case may be.  In this context, only the Supreme Court and the High Courts are exempted.

It is most unfortunate that some of the presiding the officers are not even understood the spirit of the oath in its right perspective.  A new trend has developed in sub-ordinate Courts that on the one hand presiding officers not bothered to administer oath on their own, who are supposed to do so as mandated under sections 3(1) and 6(2) of the Act and on the other hand sub-ordinate staff treat it as part of their duties. The situation has reached a stage where the staff in sub-ordinate courts feel it is an encroachment upon their duties in case any presiding officers sincerely wants to discharge his duties has mandated under the Act as to administering the oath.

 

Therefore a Presiding Officer cannot delegate his power of administering oath of office or else he will miss the first opportunity of observing the decorum of the witness and the very object of the Act will be defeated. 

VIII.Consequences of omission of oath or irregularity

Sec. 7 of the oaths Act clearly says that proceeding and evidence will not be invalidated by omission of oath or irregularity which reads as follows.

Sec. 7 Proceedings and evidence not invalidated by omission of oath or irregularity:

 No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in   administration of any oath or affirmation or in the form in which it is administer shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to sate the truth.

IX. Suggestive Measures

If the evidence is false, judicial proceedings are polluted at source and can only result in injustice, with the acquittal of the guilty or in the punishment of the innocent. Though it may not be possible for us to overhaul system over night, certainly we can attempt to make beginning by taking some measures in this direction to move forward.

(a)  Oath taking has to be made more formal and the Presiding officers should inculcate the habit of administering oath bestowed, on their own without passing on this onerous responsibility to the sub-ordinate staff and take it as their privilege not as a duty.

(b)  Making the witness more conscious of their obligations to the society and the God to tell the truth in the Court.

(c)  Enforcing Stricter compliance of the provision of the Act, if need be by making  suitable Legislative amendments.

(d)   Create legal awareness among lawyers / prosecutors / staff of judiciary in sub-ordinate Courts by conducting  training classes / refresher courses.

(e)  Create an watchdog mechanism to ascertain Perjury in the original trail in lower courts of sensitive cases involving important personalities or grave Crimes. The watchdog agency should initiate suo-moto action if false evidence is detected or suspected.  The very existence of such vigilance mechanism may deter prospective perjurers in the ‘high profile’ cases.  

X.     Conclusion

A major setback in the administration of justice is the extremely over-burdened legal system. The numerous cases of perjury that proliferate the system cannot possibly be dealt with. It is a matter of concern that in the Indian judicial system, so little importance is given to perjury. It is absolutely necessary to emphasise the importance of ensuring respect for the rule of law and human rights when it comes to administering justice properly and expeditiously. Any excuses that the courts have more than enough to contend with in terms of the great backlog of cases must not be accepted. One has only to consider the sufferings of numerous litigants on account of unscrupulous witnesses to address the seriousness of the problem. The plight of these hapless victims of perjury can never be redressed unless there is sincere and honest efforts by all the concerned in true sense.

       [Published in Supreme Court Journal  / Weekly

February 2010, Part – 3]

------------------------------------------------------------------------------------------------------------

Note: The Author is a member of A P State Higher Judiciary. The views expressed in this article are purely personal.