This article is written by Gauraw Kumar, from BVP-New Law College, Pune. In this article, he covers the important concept of the Oath Act, 1969 and tries to discuss the various facts, history and recent customs of oath in judicial proceedings.
We have to attach an oath letter on many occasions, such as exchange of money, buying of property, in any judicial activity or judicial proceeding. This work is very simple nowadays. You must have heard about the word ‘stamp’ in your local area during the time of any rental agreement, drop certificate, etc. What is ‘stamp’? This is another way to take an oath.
We should know related to the oath in judicial proceedings. You must have seen the Court scenes of any movie, in which witness takes the oath by putting a hand on the religious book during the judicial proceedings. Have you ever given a thought about whether it really happens in actual judicial proceedings or not? The answer is ‘no’. There are no such types of oaths taken by any witnesses during actual judicial proceedings. There are different ways to take an oath that is conducted during the judicial proceedings which we will be discussing in further contents. There is a separate law regarding oath during judicial proceedings named The Oath Act, 1969. In this Act, all the provisions, liabilities, course of action and other things related to oath during judicial proceedings are given.
Why the Witness has to take an oath?
There are two ways by which witnesses can register a statement in a judicial proceeding.
First, is ‘on oath’ and second, is ‘on affidavit’. In a judicial proceeding, the witness is liable to speak the truth only after taking an oath. If any witness lies in a judicial proceeding after taking an oath for speaking the truth, then it is itself an offense under the Indian Penal Code, 1872. Section 193 of the IPC deals with punishment for giving or fabricating false evidence. But, it applies only after taking an oath.
Section 193 of the IPC
According to Section 193 of the Indian Penal Code, 1860, the person shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine who:
- gives false evidence in any moment of judicial proceeding intentionally, or
- fabricates false evidence intentionally for the purpose of the same being used in any moment of a judicial proceeding.
Now we have to understand two terms:
- Giving false evidence: Any person who states something in judicial proceedings, knowing that the statement is false.
- Fabricating false evidence: Any person who manipulates any statements and facts of the case in order to establish liability on another person, knowingly that the person is innocent.
History of Oath
- In Mughal’s period, when a king used to act as a Judge to resolve any issue then witness was bound to take an oath by putting a hand on his religious book. For example, a Hindu used to place his/her hand on Gita or a Muslim places his/her hand on the Quran while stating anything in the proceedings, etc.
- Earlier, it was believed that society is extremely loyal towards God and their religion. So, they will only speak the truth while taking an oath of their religious book.
- But, this custom was struck down by the British Government in 1873 by the introduction of the uniform system. (Indian Oath Act 1873)
- Notwithstanding, Indian Oath Act 1873, Bombay High Court continued this custom till 1957.
- Now, an issue was raised by the 28th law commission reports that people who do not believe in god can lie even after taking an oath to religious books.
- By considering this issue, The Oath Act of 1969 came into existence.
The Oaths Act, 1969
This Act does not state anyone to take an oath by putting a hand on the religious book. After the introduction of this act, the custom which was continuing from the past was completely stopped in the judicial proceedings. The Oaths Act, 1969 (Act No. 44 of 1969) dated 26th December 1969 is the Act of Parliament which was enacted to consolidate and amend the ‘Judicial Oath’ and for other relevant purposes. This Act extends to the whole of India.
According to Section 2 of this Act, it does not apply to proceedings before courts-martial or to oaths, affirmations or declarations by the Central Government for members of the Armed Forces of the Union.
Power to administer oaths
According to Section 3 of the Oath Act, 1969, Courts and individuals will have the power to administer oaths:
- By themselves, or
- subject to the provisions of subsection (2) of Section 6, or
- by an official empowered by them in this name, oaths and affirmations in the fulfillment of the duties imposed or in the exercise of the powers conferred on them by law.
These are the following Courts:
- All Courts and persons who have by law or consent of the parties, the authority to receive evidence;
- the officer in command of any naval station or military or ship occupied by the Union Armed Forces provided that the affirmation or oath is administered within the scope of the station.
Oaths and affirmations to be made by witnesses, interpreter and jurors
According to Section 4 of the Oath Act, 1969, oaths or affirmations shall be made by the following people, namely:
- All witnesses or all the persons who may lawfully be examined, or give (or needed to give) evidence before any court or person having authority to examine such persons or to receive evidence;
- interpreters of questions and evidence given by witnesses; and
The preceding provisions of this article and the provisions of Article 5 do not apply to witness when the witness is a child under the age of twelve years and the court or the person authorized to inspect that witness is of the opinion that, while the witness understands the duty, to tell the truth, he does not understand the nature of an oath or affirmation.
But in such a case, the absence of an oath or affirmation will not disqualify the evidence provided by this witness or affect the witness’s duty, to tell the truth.
Nothing in this section will make it possible to manage in a criminal proceeding, an oath or affirmation to the accused person unless it is inspected as a witness of the defense. It is important to administer it to the official interpreter of any Court after he has entered in the execution of the duties of his office, an oath or affirmation that he will faithfully satisfy those duties.
Forms of Oaths and affirmations
According to Section 6 of the Oath Act, 1969 all oaths and statements made under section 4 shall be administered in accordance with one of the forms listed in the Annex, as appropriate to the circumstances of the case.
Provided that if a witness in any judicial proceeding wishes to give evidence:
- Under oath or solemn affirmation in any common way among the persons of the class to which he belongs, or
- That he keeps them bound, and that he does not repudiate justice or decency, and
- If it is not intended to affect any third party,
then the court may allow it to present evidence of such oath or affirmation.
All such oaths and affirmations shall, in the case of all courts other than the High Courts and the Supreme Court, be administered by the presiding officer of the Court himself, or, in the case of a Magistrates or other Judges, by anyone of the Magistrates or Judges, as the case may be.
- For Witnesses: I do swear in the name of God that whatever I shall state shall be the truth, the whole truth and solemnly affirm nothing but the truth.
- For Jurors: I do swear in the name of God that I will well and truly try and true deliverance make between the solemnly affirm State and the prisoner(s) at the bar, whom I shall have in charge, and a correct verdict give according to the evidence.
- For Interpreters: I do swear in the name of God that I will well and truly interpret and explain all questions put to solemnly affirm and evidence given by witnesses and translate correctly and accurately all the documents given to me for translation.
- For Affidavits: I do swear in the name of God that this is my signature (or mark) and name and that the contents of this my affidavit are true.
Proceedings and evidence not invalidated by the omission of oath or irregularity.
According to Section 7 of the Oath Act, 1969, no omission:
- To take an oath, or
- Make any claim, and
- Not to replace any with any of them, and
- Any irregularity in the administration of any oath or affirmation or in the form in which it is administered will invalidate any procedure or render any evidence inadmissible, with respect to which such omission, substitution or irregularity occurred, or that affects the obligation of a witness, to tell the truth.
Persons giving evidence bound to state the truth
According to Section 8 of the Oath Act, 1969, any person who presents evidence on any subject before any court or person authorized to administer oaths and statements shall be required to declare the truth on said subject. After taking an oath, the witnesses are bound to state only the truth, nothing but the truth.
According to Section 5 of the Oath Act, 1969, a witness, interpreter or juror may, instead of taking an oath, make a statement.
Repeal and Saving
- The Oath Act, 1969 is made after the amendment of the Oath Act, 1873.
- When, in any pending procedure at the beginning of this Law, the parties have agreed to be bound by any oath or affirmation as specified in section 8 of said Law, then, despite the repeal of said Law, the provisions of the Sections 9 to 12 of said Law will continue to apply in relation to said agreement as if this Law had not been approved.
Initially, the concept of Oath evolved in India during the period of Mughals in which witnesses were bound to take the oath by putting their hand on the religious book from which religion they belonged to. But, It was struck down by Britishers and they came up with a new uniform code related to the oath. Nowadays, our judiciary follows the custom of the oath which is given in the Oath Act, 1969. In this article, we have discussed various provisions of the Oath Act, 1969. People are bound to state truth after taking oath under the Oath Act. If they did not do so, they will be liable under Section 191 of the Indian Penal Code, 1872 for removing and fabricating evidence before the court of law.
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