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Experiments with (un)truth
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If our justice and administrative systems show much evidence of decay, it is partly because there is much decay of evidence. In the land of Gandhi, a few experiments in fighting untruth are overdue.
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THE DECISION of the American Securities and Exchange Commission to require chief executives of companies to swear an oath to the truthfulness of their accounts is one which, to the Indian eye, seems peculiar. The average Indian chief executive can be forgiven for asking what is so great about swearing an oath. Surely this is a meaningless and purely symbolic ritual? Yet, at the time of writing, the deadline set by the SEC has passed, and several chief executives have asked for extension of time on grounds that they are not yet ready to take their oaths. What explains this vast gulf in perception? The answer lies not in sociology but in the law. Americans take oaths more seriously not because they are more truthful but because they are more fearful of being punished if they are caught lying.
India's legal system, like America's, is derived from English common law in both substance and procedure. One of the fundamental underpinnings of the English system is that every person who gives evidence on oath has not merely a moral but a legal duty to tell the truth. The law contains provisions to punish those who lie under oath and even those who encourage or abet others in lying under oath. When false evidence is given in a judicial or quasi-judicial proceeding it is called perjury.
Perjury and false evidence are taken very seriously in both England and the United States, as the conviction of ex-Conservative politician and novelist Jeffrey Archer in England and the long criminal investigation (and eventual debarring from legal practice) of Mr. Bill Clinton in America show. Most American lawyers would not dream of even privately advising witnesses to lie on the stand, since they would run the risk of being prosecuted for suborning perjury. Because what one says on oath is taken seriously, the very ritual of swearing the oath is also taken seriously in courts and in other situations where sworn evidence is to be given. Witnesses are asked to raise their right hand and place the left on the Bible (or other holy book). When courts resume after a recess, judges often make it a point to remind the witness (whose testimony is to continue) that he is still under oath. American newspapers are fond of publishing photographs of famous people taking their oaths before giving sworn testimony to Congressional committees.
Theoretically, the Indian system is very similar. 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 very different. Oath taking in many lower courts, far from being solemn, is perfunctory to the point of irrelevance. The witness is often merely asked by the bench clerk or the examining advocate to say "I shall speak the truth" and he usually mumbles something inaudible in response. 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 largely confined to the cinema screen. Affidavits before notary publics can usually be `sworn' without the deponent even appearing in person, for a `fee'.
A misconception
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.
As is the case with most offences, India's statutes are not to be found wanting when it comes to proscribing (and prescribing punishments for) false evidence. The Indian Penal Code contains elaborate provisions defining offences and fixing sentences for a variety of situations where false evidence is given. These are to be found in Chapter X ("Contempts of the lawful authority of public servants") and Chapter XI ("False evidence and offences against public justice"). 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.
Widespread prevalence
The widespread prevalence of perjury and false evidence has serious consequences. The large number of prosecutions of the rich and the powerful which start with a bang and end with a whimper (in acquittal) can be traced to it. So too can the 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 of prosecution or plaintiff's witnesses with a stock suggestion that "I put it to you that you are lying in order to... (insert reason)" whether or not they have shown any foundation for such an inference.
This is not the case in either England or the U.S. where (for instance) such a suggestion is not routinely put to police officers or witnesses who are generally felt to be respectable. When the Anglo-Saxon requirement of benefit of doubt going to the accused is juxtaposed onto a very non-Anglo-Saxon approach to perjury and to the evidentiary value of statements made to the police, it is small wonder that the guilty in criminal cases walk free far more often than they should. The public look up to the judiciary to do justice, but the judiciary has to go by evidence. The fact that many witnesses lie enters into the sub-conscious of the magistrate, judge or presiding officer and makes his job in appreciating evidence far more difficult than that of his counterparts in countries where lying under oath is less common. 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. After all, "if the salt has lost its savour, wherewith shall it be salted?"
Vigilance mechanism
Like many of India's problems, describing the problem is easier than finding a solution. However, there are a number of steps which can be taken to make a beginning. First, the problem has to be attacked at the root by making witnesses more conscious of their obligations to man and God to tell the truth in court. Oath taking has to be made more formal, partly through stricter compliance with, and partly by amending, the Oaths Act 1969. Witnesses who claim to belong to a religion must be required to place their hands on the appropriate book and swear to tell the truth, the whole truth, etc. In a country where belief in religion plays such a large part, and where for many people fear of God is greater than fear of law, this can do no harm and possibly much good. Those who, claiming to belong to no religion, wish to make an affirmation rather than an oath must be asked to first make an affirmation that they do not believe in any religion. The fact that they are required to do so may have some effect in deterring those who pretend to be atheists or agnostics to avoid the oath taking, since they would be loath for their co-religionists to find out that they claimed to be atheists. Those who take an affirmation rather than oath (on grounds of not believing in God, etc.) should be formally reminded that they can be prosecuted for giving false evidence.
Secondly, a conscious effort should be launched to prosecute persons for giving false evidence not only in judicial proceedings but also in administrative matters where a public servant is entitled to take a statement. Even if many of these prosecutions fail (perhaps due to false evidence!) the mere fact that such cases are being prosecuted will have deterrent effect. Thirdly, the Penal Code needs to be amended. Most of the offences in Chapters X and XI, though clearly and comprehensively defined, are both non-cognisable and bailable. Non-cognisability means that prosecution can only be commenced after a magistrate has held a preliminary enquiry, and not directly by the police. The police cannot register an FIR for a non-cognisable case. While keeping the offences bailable (i.e. bail is available as a matter of right) it would be useful to make some of these offences cognisable so that cases can be registered by the police. Finally, the Supreme Court through the High Courts could set up a watchdog mechanism under the superintendence of a sitting Justice, to look out for perjury in the original trial in lower courts of sensitive cases involving important personalities or grave crimes. The watchdog agency should initiate suo motu action if false evidence is detected or suspected. The very existence of such an evidentiary vigilance mechanism may deter prospective perjurers in these `high profile' cases.
If our justice and administrative systems show much evidence of decay, it is partly because there is much decay of evidence. In the land of Gandhi, a few experiments in fighting untruth are overdue.
T.V. SOMANATHAN
(The author, a member of the Indian Administrative Service, is the presiding officer of the Tribunal for Disciplinary Proceedings, Tirunelveli Region. The views expressed are purely personal.)
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