In Indian courts, affidavits are used extensively
for presenting evidence and other information during civil and criminal
proceedings. Under the Code of Civil Procedure, the court may order
any fact to be proved by an affidavit. In a civil case, the
examination-in-chief of a witness is always in the form of an
affidavit. Apart from the main evidence, affidavits are required to
be filed for various other purposes in the court. Every plaint or pleading is
to be supported by an affidavit for proving the facts contained
therein. Interrogatories are also to be answered by an affidavit.
The court may100 also order the production of any relevant document on
oath by a party in possession of such document. In case120 of failure of service of summons, the officer responsible
for the service has to give his report supported by an affidavit. In the criminal
proceedings, an application for plea bargaining has to be accompanied
by an affidavit of the accused stating that he had voluntarily preferred
plea bargaining. In brief, every assertion of facts in the court has
to be supported by an affidavit of the party in the knowledge of
those facts. The court relies on the facts only200 if these
are either stated in the oral evidence on oath or by written submission
supported by an affidavit.
An affidavit is a written statement made on oath or
affirmation before a notary or other empowered person to be used240 as a
substitute for oral testimony. An oath is a promise to speak the truth, with
God as a witness, under the belief that he will punish the person for
breaking this promise. The justification of taking oral and written
testimony on oath in courts is based on the belief in the theory of divine
punishment in case of a300 false statement.
The practice of submitting a written statement in
courts on an affidavit is prevalent in most of the countries which were
part of the British Empire in medieval times. However, many such countries
have curtailed its use by modifying their procedures to suit present-day
requirements. Most recently, in August 2020, Ireland has
replaced affidavits with360 the ‘statement of truth’ in the civil proceedings
as a measure to combat the COVID-19 pandemic. This statement of truth is
not required to be made on oath or affirmation and can be transmitted electronically
to the court with400 the digital signature of the deponent. Under the
federal law in the United States, since 1976, an unsworn
declaration can be used in court proceedings in place of a sworn
affidavit. In 2016, the Uniform Law Commission of the United
States has drafted a ‘Uniform Unsworn Declaration Act’ to be enacted by
every state there. In the United Kingdom, affidavit in civil proceedings
has been replaced with a ‘statement of truth’ with the introduction of Civil480
Procedure Rules, 1998.
There is an earnest need to modify procedures in India
also to minimize the use500 of affidavits in courts. It needs to be examined
whether a written statement on oath or affirmation is in any way more
effective than an ordinary signed statement in discovering the truth which
is the ultimate aim of a court. Traditionally, a statement on the
affidavit is considered more efficacious in bringing out the truth
because an oath or affirmation is supposed to have a moral force on the
deponent. However, doubts have always been raised on the efficacy of
oath and affirmation in discovering the truth in courts. Jeremy Bentham, a renowned
jurist, political reformer, and philosopher, described all600 oaths
as useless.
An affirmation is a counterpart of the oath
which was devised in the 17th century, to accommodate the Separatists who
refused to be sworn because the act of swearing was blasphemous
according to their beliefs. It is a formal declaration, without direct
reference to divine authority, that the witness recognizes and will uphold his
full obligation, to tell the truth.
In England and other common law countries,
affirmation is allowed only in exceptional cases on the specific
request of a witness because of his religious beliefs. However, in India,
anyone can opt to give oral testimony or700 an affidavit on affirmation instead of making an oath. As
affirmation has no connection with religion and God, it is720 likely
to have much lesser moral force than that of
an oath on a person to speak the truth. Once an affidavit is allowed to be made
on affirmation, the rationale behind the ‘sworn’ statement is substantially
lost. There is little difference in the moral force of an affidavit on
affirmation and an ordinary self-declaration.
In the modern world, a stringent law to punish a
false statement is more effective in bringing out the truth in a court. In most800 common
law countries, an offense of giving false evidence, called perjury, can be
invoked only when false evidence is given on oath or affirmation. Therefore, an
oath or affirmation is required not only for applying moral force on a deponent840 but
also for making him liable for the crime of perjury. Because of this definition
of the crime of perjury, the countries which replaced affidavits had to make
new provisions in the law to punish a person for giving an ‘unsworn’
false declaration in the court.
The law in India is more pragmatic in this regard.
Under the Oaths Act 1969,900 every person giving evidence on any subject before any
court is bound to state the truth on such subject. An oath is not
a condition precedent to the obligation to state truth under Indian law as is
the case in most other countries following common law. Under section 191
of the Indian Penal Code, whoever, being legally bound960 by an
oath or by express provision of law to state the truth makes a false
statement, is said to give false evidence and is punishable under section 193.
As every person is bound to state truth by1000 section
14 of the Oaths Act, filing a false unsworn written statement in a court would
constitute the same offense as the filing of a false affidavit. Therefore, even
if the affidavit is replaced with a simple self-declaration, it will not
dilute the punishment for giving a false statement in court.
Now the time has come to
remove the requirement of sworn affidavits in the court proceedings. In the
place of the affidavit, the deponent should be required to file1080 a signed declaration that the contents of his
statement are true and he understands the legal consequences of giving a1100 false statement. Such a statement may be called ‘statement
of truth’ or ‘unsworn declaration’ or anything else. The e-Committee of the
Supreme Court, set up to increase the efficiency of the Indian judiciary
by using modern technology, has also emphasized the urgent need for
re-engineering judicial processes to utilize the full potential of the
technology.1155
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