Affidavits, an antique for Indian Judiciary?

Affidavits are commonly used in Indian courts to submit evidence and other information during civil and criminal cases.  The court might order an affidavit to be used to prove any fact under the Code of Civil Procedure. In a civil case, a witness’s examination-in-chief is always done through an affidavit.  Affidavits are necessary to be filed in the court for a variety of reasons in addition to the main evidence. A party in possession of a relevant document may also be ordered to produce it under oath by the court. In the event that a summons is not served, the officer in charge of the service must submit a report accompanied by an affidavit. An application for plea bargaining in criminal proceedings must be supported by an affidavit from the accused declaring that he willingly accepted plea bargaining.

In a nutshell, every allegation of facts in court must be backed up by an affidavit from the person who knows the facts. The facts are only considered by the court if they are presented orally under oath or in a written submission accompanied by an affidavit.

Affidavit can be defined as a sworn written statement which can be presented in the court of law, it is used along with the witness to prove that the witness is making a statement of truth. An oath is a vow to declare the truth in the presence of God, with the expectation that if the promise is broken, God will punish the offender. The belief in the doctrine of divine punishment in the case of a false statement justifies the taking of oral and written testimony under oath in courts.

In most of the countries that were part of the British Empire in mediaeval times, the practise of submitting a written declaration in court on an affidavit is still practised. However, many of these countries have reduced their usage of it by adapting their methods to meet current needs. In August 2020, as a step to counteract the COVID-19 epidemic, Ireland substituted affidavits with a “statement of truth” in civil courts. This statement of truth does not need to be made under oath or affirmation, and it can be sent to the court electronically with the deponent’s digital signature. Since 1976, an unsworn declaration can be used in court proceedings instead of a sworn affidavit under federal law in the United States. The United States’ Uniform Law Commission proposed a ‘Uniform Unsworn Declaration Act’ in 2016, which will be approved by each state. With the introduction of the Civil Procedure Rules, 1998, the affidavit in civil proceedings in the United Kingdom was replaced by a “statement of fact.”

In India, there is a pressing need to change procedures to reduce the use of affidavits in courts.

It must be determined whether a written oath or affirmation is more successful than a simple signed declaration in revealing the truth, which is the ultimate goal of a court. Because an oath or affirmation is meant to have a moral force on the deponent, a statement on the affidavit is traditionally seen to be more effective in bringing out the truth. However, there has always been scepticism about the effectiveness of oaths and affirmations in determining the truth in courts. All oaths, according to Jeremy Bentham, a distinguished lawyer, political reformer, and philosopher, are meaningless.  ‘Profoundly convinced by a long judicial experience of the general worthlessness of oaths, I have become an advocate for the abolition of oaths as a test of truth,’ wrote Sir John Mellor, Justice of the Court of Queen’s Bench in England in 1874. “The foundations upon which [the conventional norm] was put down have long ago evaporated, and the rule simply endures from blind imitation of the past,” Justice Holmes, a noteworthy jurist and the most famous Supreme Court justice in the United States, stated of the oath.

An affirmation is a counterpart to the oath, which was created in the 17th century to accommodate Quakers, Separatists, and Moravians who refused to be sworn because swearing was considered blasphemous by their religious views. It is a formal proclamation that the witness acknowledges and will uphold his full commitment to tell the truth, without making any direct reference to supernatural power.

Affirmation is only permitted in extraordinary instances in England and other common law countries, when a witness specifically requests it because of his religious convictions. In India, however, instead of taking an oath, anyone can provide oral testimony or sign an affidavit of affirmation. Because affirmation has nothing to do with religion or God, it is unlikely to have the same moral force as a pledge to speak the truth. When an affidavit may be made solely on the basis of affirmation, the purpose for the ‘sworn’ statement is largely lost. The moral force of an affidavit on affirmation and a regular self-declaration is nearly identical.

In the modern world, to bring out the truth at all times, a stringent law is more effective, and in most common law countries and offence of making a false statement under the oath is known as perjury. Because of this definition of perjury, countries that substituted affidavits had to create new legal measures to punish someone who made an “unsworn” false declaration in court.

In this way, Indian law is more pragmatic. Under the Oaths Act of 1969, anyone providing testimony in a court must tell the truth about whatever they are testifying about. Under Indian law, an oath is not a prerequisite to the requirement to tell the truth, as it is in most other common law countries. Whoever makes a false statement while legally compelled by an oath or by express provision of law to speak the truth is considered to be giving false evidence and is criminal under section 193 of the Indian Penal Code. Because everyone is obligated to tell the truth under section 14 of the Oaths Act, making a false unsworn written declaration in court is the same as making a false affidavit. As a result, even if the affidavit is replaced with a simple self-declaration, the penalty for making a false statement in court will remain the same.

The time has come to do away with the need for sworn affidavits in court proceedings. The deponent should be required to file a signed declaration that the contents of his statement are truthful and that he knows the legal repercussions of making a false statement in place of the affidavit. A statement like this could be referred to as a “statement of truth,” a “unsworn declaration,” or anything else. The Supreme Court’s e-Committee, which was established to improve the efficiency of the Indian court through the use of modern technology, has also underlined the urgent need to re-engineer judicial processes to fully maximise the technology’s potential. Allowing a ‘unsworn’ statement in court will also help achieve this goal because the deponent can sign and electronically send the statement to the court.

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