Justice D. Y. Chandrachud while speaking on the topic “The Courts and COVID-19: Adopting Solutions for Judicial Efficiency” said ‘our processes do not need to be as old as our principles’. In these words, he has aptly voiced the need for constant review of practices and procedures followed in courts.1 The COVID-19 pandemic and the associated social distancing norms have disrupted judicial systems throughout the world. Courts had to respond quickly to this unprecedented challenge. In India, the Supreme Court led the way by switching over to virtual hearings immediately after the announcement of a nationwide lockdown in March 2020.2 Most of the High Courts also followed suit.
While it is easy to hold contactless virtual hearings in appellate courts, it is a daunting task in trial courts where evidence is required to be discovered. It is essential to re-engineer procedures in the trial courts to reduce personal contact without affecting the delivery of justice. In this context, the use of affidavits in the court proceedings for presenting evidence and various other kinds of information requires a review because social distancing is likely to be part of life for a long time to come. Attestation of an affidavit involves a mandatory visit to a notary or other persons authorized to administer oath or affirmation under the relevant law.3 The deponent also requires a person to verify his identity to the satisfaction of the attesting authority. Thus, attestation of an affidavit involves physical contact of at least three persons which is avoidable in the present times.
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.4 In a civil case, the examination-in-chief of a witness is always in the form of an affidavit.5 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.6 Interrogatories are also to be answered by an affidavit7. The court may also order the production of any relevant document on oath by a party in possession of such document.8 In case 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.9 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 only 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 used 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 a false statement.10
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 with the ‘statement of truth’ in the civil proceedings as a measure to combat the COVID-19 pandemic.11 This statement of truth is not required to be made on oath or affirmation and can be transmitted electronically to the court with 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.12 In 2016, the Uniform Law Commission13 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 Civil Procedure Rules, 1998.
There is an earnest need to modify procedures in India also to minimize the use 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 all oaths as useless.14 Sir John Mellor, Justice of the Court of Queen's Bench in England wrote in 1874 ‘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.’15 A notable jurist, and most famous Supreme Court justice in the United States, Justice Holmes, said about the oath "the grounds upon which [the traditional rule] was laid down have vanished long since, and the rule simply persists from blind imitation of the past."16
An affirmation is a counterpart of the oath which was devised in the 17th century, to accommodate the Quakers, the Separatists, and the Moravians, who refused to be sworn because the act of swearing was blasphemous according to their religious 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.17
In England and other common law18 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 or an affidavit on affirmation instead of making an oath. As affirmation has no connection with religion and God, it is 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 most 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 deponent 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, every person giving evidence on any subject before any court is bound to state the truth on such subject.19 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.20 Under section 191 of the Indian Penal Code, whoever being legally bound 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 by 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 file a signed declaration that the contents of his statement are true and he understands the legal consequences of giving a 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.21 Allowing an ‘unsworn’ statement in the court will also help in achieving this objective because such a statement can be signed and transferred to the court digitally by the deponent.