The Indian Oath Act,1873

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Law Commission Report

The Indian Oath Act,1873

LAW COMMISSION
OF "INDIA

TWENTY-EIGHTH REPORT

(THE INDIAN OATHS ACT, 1873)

MAY, 1965

GOVERNMENT OF INDIA 6 MINISTRY OF LAW
.33 M. of Law--_----1 7

CHAIRMAN.

LAW' COMMISSION,

5, Jor Bagh, New De1hi--3,
Dated the 28th May, 1965.

Shri Asoke Kumar Sen,
Minister of Law,
New Delhi.

MY DEAR Mrmsrsn, ~

I have great pleasure in forwarding herewith the Twenty-
eighth Report of the Law Commission on the Indian Oaths Act,
1873.

2. The subject was taken up by the Law Commission in
I962. A draft-Report on the subject was discussed at the 47th
meeting of the Commission held on the 31st August. I963.
The draft Report was revised in the light of the discussion at
that meeting, and circulated to State Governments. High Courts
and other interested persons and bodies for comments.

3. The comments received on the draft Report were consi-
dered at the 65th meeting of the Commission held from the
rsth to 18th February, T1965 and at the 66th meeting held on
the roth and rrth March, 1965. The draft Report, as revised
in the light of the decisions taken at these meetings, was again
oonsidered at the 67th meeting of the Commission held from
the Igth to 24th April, 1965. The Report was ﬁnalised at the
68th meeting of the Commission held on the 21st May, 1965.

4. I wish to add that in the preparation of this Report the
Commission received a great deal of help and assistance from
Mr. P. M. Bakshi, Joint Secretary 8: Draftsman. He also help-
ed us in making a research into a number of old Regulations
and Laws, some of which were difﬁcult even to locate.

. Yours siricereljz,
J. L. KAPUR.

CONTENTS

PARA. ' M Su1amc1:--M.u".rnn
No. '

Page

I.' 'Why the Act has ipeen taken up for revision

2 Historical background . . .

3 Analysis of the Act . I . . . . . .
4 Law in England . . . . .

5, 6 Meaning of Oath . . . . . . . .-
7 Deﬁnition by Bentham . . . . . . .
8 Oath as. security for ensuring, veracity of eviience .

9, IO Oaths in ancient India . . . . . .

It Oaths in Muslim law . . . . .

I2 Sanction 'behind oath-----fear of God-Benthsnfs View
13 Fear of divine punishment and forms at oaths

34, 15 Utility of 03111----criticism of Bentham and others .

16 Contrary View as 1:: utility ;

:7, 18 Should man be abcglished E' . .
1,-9-2; Farm of oath. acem-ding to conscience . . .
23 Form of-oath---crther suggestions
24 Form prescribed by High Courts . . .
:5 Baths to be adm.i.nieI:ete»d. by the Judge , .
":6 Special ontl1s . . . '. . . .

:7 Question of retention of special oaths considered . .

'11

{ii}

Pm. Snamcr-mum Pam:
No
:3 .H.1'3T.I.ttl.BIII5 in ﬂavour at' special oaths . II
'29--3: Arg-.Lm:nta ag.s.ix::.t special omits ~ - :2.-13
33--36 Harm caused. by spcdal oau'.hI~--P1i1ry Council an :3-
3-,-_. 35 Special uallu s.n-ti wage: of lsa'nt--IZ'acJ'sor3' and stlppletory cszths . :.1.«-I5
3; Fundamerznnl obj»;-ccﬁaus to special c-nth: . . 15.
40--44 Freedom of contract considered . . . . 15-417
45 Rar.-m-nmeudarjun for omitting special oaths I8
46 Secﬁuna examined . 1:8
431 Praamble . . . . . . 18
43 Deﬁnition of oath . . . . . . 13
49 Secﬁnn 3 aﬁﬂ :0-tilts-m9.t'n'.al . . . . 18
5a Secﬁan 4 and other laws . . . , I8
5: Smxion 4 and afﬁda-wits . . . . 19
52-.-54 Section ¢ and pmvexs of commanding oiﬁcm . I9-20
55 Section 5 and obligation on make. oath . . 2:-
55 Sectim: 5 and nail: by %ed examiugd as 9. wimess 20
57 Section 5-othcr points . . . . . 3::
53 Section 6--pri.uI:i]:Ilc . . . . . 2.1::
59 Section 6---mh=s suggcaﬁcma _ . . . . 21
so Section '3'--fotm of nail: . . . . 2:
6: Suctis:-u. 7 and permigsion to wltuas to take an oath in s
1:11.131: farm ' . . . . . . . 21
53 Section 7-holding of book . . 21
63 Simian T---whn shank! administer oath . 3:
6.4 Sectiuns 3-1: {special qatha} . . . 3 ;
£5 Scclizn I!_:_L , _ , _ . _ ' 3.,

Pun. Sunyncr-M.u'rnn' PAGE
No.
66 Section I4----obligation to state the truth---signiﬁcancc 22
67 Section I4--when applies . . . . . . 22
68' Schedule (new) . . . . . . 23
69 Other changes . . . . . . . . 23
70 Appendices . . . . . . . . 23
APPENDICES

APPENDIX I.---SI1;_tﬁﬂi.I'lg the recommendations in the form of a draft
I . . . . . . . . . 24
APPENDIX 2.--Notes on Clauses . . . . . 27
APPENDIX 3.--Reoom:_:nendat.ions in respect of other Acts . 34

APPENDIX 4.--Compa1-an've Table

REPORT ON OATHS ACT

'1. One of the functions of the Law Commission is to
revise Central Acts of general application and importance.
The Indian Oaths Act, 1873, falls in this category. It is a
short Act, consisting of 14 sections only, 'But it is an im-
portant Act. The obligation of witnesses to state the truth
arises from this Act. Section 14 of the Act requires a per-
son giving evidence before any Court orper-son authorised
by the Act to administer oaths and afﬁrrnations, to state the
truth on the subject on which he is giving evidence'-2
The administration of oath to witnesses is one of the secu-
rities devised?' for ensuring their trustworthiness. We
have, therefore, taken -up the revision of this Act of our
own motion, without any reference from the Government.

2. The Indian Oaths Act, 1873, did not enact any new
laws. It merely consolidated'-5 the law on the subject
véhlicliﬂwas contained in some old Regulations and in Act 5
0 8 .

Act 5 of 1840 was an important Act. It appears', that
before this Act was passed some old Regulations of "the
,Government of _the East India Company required that
Muhammadans were to be sworn on the Quran and the
Hindus on the water of the Ganges. Act 5 of 1840 abolished
these forms of oath, and enabled Hindus and Muhamma-
dans to give evidence on solemn. afﬁrrnation.

The provisions of Act 5 of-1840 were extended by section
9 of Act 18 of 1363 to the High Courts. Then came Act 6 oi
1372; The substance of that Act -can" bestbe given in the
words of Lord Hobhouse, who was then the Law Member-

"That Act introduced two very important altera-
._tions. , One was this, that every witness who objected
to take an oath might, instead, make a simple aﬁ'imna-
tion; and the other was that, notwithstanding any
irregularity in the administration of any oath, or any
irregularity in the making of an .aﬁ'irmation, or, in
fact, any irregularity in the form or method ofetaking
evidence, the proceedings should be valid". -

1For punishment for false evidence, see sections 179; ISI and mi, Indian
Penal Code. . . . .

=Sce also para. 66, infra.

'Sec para. 6, infra. ' ' ' .
'See the Gazette of India (1372), Supplement, dated 3-S-r872, pagesﬂg,

under " Qazhs, and Juﬁnnations - Bill".

'It appears that before the Act, the provisions were scattered in «run
Acts, seven Statutes and fragments of "resolutions ". For a detailed review
of the scanemd statu_tory_p_rovisions eﬁdsling' at that time, see ,Gazzzte of-India-,
\%:73);_'Suppien-lent, dated r5-'2-I873, pages 235-----24r,, particularly page s37,

'For history of the p'reseh:_'Act,' see'Q.;s. v. VMaru (r2_iS'S),_I.L.R. man.
20?,'-2:13. 2:7-' _ - ': -4* ' i
33 M. of Law-2

'Why the

Act has
:1

us: _£or

revision.

Him '
backgromad.

Ana]
the

B of
t.

before Courts Martial.

. aﬂirrnation.

2
The Act of 1872 was repealed by the Act of 1873, which
contains the existing law on the subject.
3. A brief analysis of_the, Indian Oaths Act, 1873, is
given below:

Section 1 is a iorrrnal section containing the short title,
etc. - Section ;2, which repealed'certain'enactra.ents, was

1 itself repea_Ied- by the Repealing Act of 1873 (12 of 1873).

Section 3 excludes from the purview of the Act proceedings
Section 4. enumerates the persons
who are authorised to administer oaths and afﬂmiations.

j Section 5 provides that all witnesses, interpreters and

jurors shall make oaths or afﬁrmations. Section 6 enacts

_ that Hindus, Muhammadans and other persons who have

an objection to making an oath -may, instead-, make an
Section '? empowers the High Courts to pres-
Sections 8 to 12
"special oaths".

cribe the forms of oaths and aﬂirmations.
relate to What are commonly known as

. Section 13 enacts, that an omission to take an oath or make

an afﬁrmation shall not invalidate any proceedings, etc.
Section 14 requires every person giving evidence on any
subject before any court or person authorised to adzninister
oaths or afﬁrmations to state the truth on such subject.

4. In England the law on oaths and affirmations is to
be found in the common law and in certain statutes. The
power to- administer oaths is contained in section 16 of the
Evidence Act, 18511. The liberty to substitute,af'fi'rr.r1ation

- for an oath and the form of such aﬂirrnation are topics dealt

with in the oaths Act, 18332. The Oaths Act, 19093, pres-
cribes the form of oath and the procedure for administer-
ing it. Under the Oaths Act, 1961", the provisions of the
1888 Act are made applicable to a person to whom it is not
reasonably practicable to administer an oath in the manner
appropriate to his religious belief".

The Per;iur,y Act, 19115, makes certain saving provisions
regarding irregularities in the form and ceremony of ad-
ministering an 'oath'. Finally, the' Oaths and Evidence
(Overseas "Authorities and -Countries) Act, 1963,' deals
with oaths to be administered in England for obtaining
evidence for use in a country outside England and vice
verso'. .

'Evidence Act, I351 (14 and 15 Vict. c. 99).
'Oaths Act, I888 (51 and 52 Vict. c. 46).
'Oaths Act, 19:39 (9 Edward 7 c. 39).
'Oaths Act, 1961 (9 and :0 Eliz. 2 c. 21).
'For position before I961, see R. v. Pﬁmm Sing}: (1958). I W.L.R. 145
and (1958) L.Q.R. :79.
"Perjury Act, 1911 (I and 2 Gen. 5 c. -6).

'As to Commissioners for Oaths. soc Acts of 1839 and
'Fiat. c. 10; 54 and 55 Vict. c. 50).

'Oaths and Evide_noc,-- :tc., Act, I963 (chap-. :7).
'See a 'd.iscI.Ission of this Act in (1954) Modem I_.sw Reficw 333.

:89: (53 and 5,3.

M5. Coke' has deﬁned an oath as -an' -aiﬁrmation or denial
by any Christian of anything before one or more persons
who have authority to administer the same, for the disco-
very and advancement of truth and right, calling God to
witness that the testimony is true. In the leading case of
Omyclvwnd v. Barker"-, it was, however, said that oaths are
as old as creationfand their essence is an appeal to the Sup-
reme Being as thinking Him the rewarder of truth and
avenger of falsehood, and that Lord Coke was the only
writer who had grafted the word "Christian" into an oath.

6. Taylor", after referring to the ordinary deﬁnition of
oath, namely "a religious asseveration by which a person
renounce-s the mercy and imprecatcs the vengeance of
Heaven, if he do not speak the truth*", goes on to say---

"The deﬁnition may be open to comment, since the
design of the oath is not to call the attention of God
to man, but the attention of man to
God, not to call upon Him to pu.nish the
wrong-doer, but on the witness to remember that
He will assuredly do -so; still. it must be admitted that,
by thus laying hold of the conscience of the witness,
the law best insures the utterance of truth".

7. Bentham has deﬁned "oath" as :follows:----
"By the term oath. taken in the largest sense, is
universally understood a ceremony composed of

words and gestures, by which the Almighty is engaged
-eventually to inflict on the taker of the oath, or
sweaner, as he is_ called, punishment in quantity and
quality liquidatert, -or more cornrnonly unliquidated,
in the event of his doing something which he, the
swearer, at the mine time and thereby engages not to
do. or omitting to do something which he in like
manner engages to do.". .

8. The municipal laws of various countries have devised
several securities for ensuring veracity and completenem
of evidence given in courts of justice. These securities
vary in diﬁerent countries and with the system of law to
which they are attached. Some of these prevalent in the
system of Anglo-Saxon law and other systems based upon

' AngIo--Sa.xon law, are, the publicity of judicial proceedings,

the compulsory presence of witnesses in open court, the

'Coke, 3 Inst. :64, cited in Boland-and Sayer': Oaths and Aﬂirmazions
(I961). past I.

:0 siaurtd V. Barker, Chancery', 1744 I Ad: 2: 5 Wiilcs 538 ,-
1 Wits, .B. B4 ,- 26 E.R. I5, per Willcs CJ. ;see Cockle, Cases and Statutes
on Evidence, (1963), pages 279-28o.

"l'ay1o_r, Evidence (I931) Vol. 2, page 37:, para. 1331,

'R.v.FP?u':¢{I7B6tI..e.a. o-The en' 32;: 1a.. .
36: Beat on Evidence 3:921); :9 13. Q" "an (I )' 21 R 661

'Bentham. Works, Vol. III, page 19:.

Meaning of

Deﬁnition
by Bentham.

Oaths as
security Io.-
O
veracity f
evidence.

Oaths in
ancient
Indie.

Sanskrit.

right of cross-exiaiminnﬁon 'of witnases, and the punish-
ment 'for perjuryi. -"To these securities be added
another very remarkable one which consists. -requiring
evidence in courts of justice to be given on oath---a.cco.rd-
ing to the max:'un'*'----In judicio non creditor m's1'. juratis"
(In ji1d1'cial'proceedings, testimony isnot believed unless
given uponoath)-. As' Best has said', "However abused or
'perverted by ignorance and superstition, an oath has in
every age been found to supply the strongest hold on the
conscience of 'men either as a pledge of future conduct or
as a guarantee for the veracity of narration".

9. Oaths existed in ancient India, both under the Hindu
and ungier the Mohammedan Lew. Dr, K. P. Jayaswal,
state-s5 :-

-- "Oaths which have been treated by Hindu lawyers
as a species of ordeal came under the province of the
Dharma thinkers. They recommend its application to
all witnpesses-in the King's courts, and Apastamba
prescribes special formulae to be administered. (II,
11, 29. '7--10).". '

10. Mahamahopadhyaya Kane, after. a review of anci-
ent texts, observes':---~

"The oath consisted of two parts, oiz.,----
(1) the requirement to tell the truth, and

(2) the exhortatory and irnprecatory part.
Both were administered by the presiding judge".

The Iea.r1'1ed author refers to the verses from Gau-

tarna, , _Manu, l Vishnu end Naradaﬂ and says
that the "contain very long exhorte-
tions at dressed by the judge - to the

witnesses relating to the importance and high worth

- of truth, stating how the conscience of sman -pricks
him, what rewards await the truthful witness here and
in the next world, and what sin and terribletorments

' .in hell are the lot of an untruthful witness, What evil
befalls even the deceased ancestors of an imtrnthful
Witness and how he is liable to be punished. by the
King.''. i ' ' .

'Best on Evidence' (1922), pages 40-41, paras. 54-55. _
'Best on Evidence (1922), page 42, para. 56.
-' '-As to This maxim, see Best on Evidence (I922), paras. .1380 and 1373.
'Best on Evidence ([922), page 42, para. 56. '
' 'Dr. K. P. Jayaswsl, f"Ma.nu and Yaina'val.kya" '(T'2igore"I,.:iw' Lecnucs
"$917), (193o Edn.),' page I2, para. 18. " ' , _ _
'As to the ﬁn-jtliashsstra School, see Dr._ Isysswal, :'E1£d,_1:>_agc r_33._
_ 'Kass. ."Hi=w1:v sf DﬁatIsasfs%trhs'? 0,946+}: V01? 2.» vase 3+3.-
" 'Kane, ibis', pages toes "and 1009 givés_ the ;texts -fo:n:n Nundn. in

INN' no "-J.".r1'§|'ﬂ1"JjHa
\S5!--.:.' ''2'. .."t§\_€1;_',n'}
1 33?*T'.'.'=J I_5l;a-;va_n
5 Nsvr De1h1_1

11.. Inpure Muslin} law the-pracﬁce °.f_ administering Oath!" _
oaths was well I3E.G0S11159d- KW '"'L1'-'='3'.". in MT"5hm,. law. Was mhmhw
testimony conﬁrmed by oath' and accompanied owl'-th im-
precation. The Quran sa¥s":-.-

"Violate not your oaths, since ye have made God
awitnessove-r3rou......'. -

12. A t if m urfshment for perjury, the main 3*'--"_°"'°==
sanction 'Efzﬁind :11 ogthlis the fear of God. Bentham has behmd
state-d3--- of God-'-

"Fear of eventual punishment in most cas'esi----£r.-at 73", -

of E!'Vel1.1l.1_$lShC.fI'!-E in all cases---i'ear -of pilmshment at ' "
the: hand oi the A1n1I'ghty---these are the sgnrings of

action that have been brought to View .111 the-character

of improbity---restraining forces iI_1 general, and
mendacity---restrainiug forces in pari:1cuIa.P."'.

13. That itsartoi divine punishment is the sanction be- ﬁes: of
hind an oath is well illustrated by the form in which an d1vu}e

oath is taken in some countries":--- '*1'

7.a.nd forms
"The Chinese are usually sworn? hi,' this ceremony '°'f °"""'

of breaking a saucer, with the admonition: 'You shall
tell the truth and the Whole truth; the" Saucer is crack-
ed. and if you do not tell -the truth your soul will be
cracked like the saucer.' Another form is. for tho-_ wit-

_ mess; to write sacred characters upon paper, which he
chums, praying that his soul may be similarly burnt if
he swears ,faLse]j.r, .,Whi].e,'t.1"tE \ most binding oi an is
said to consist in tho witnéss cutting oﬂ" a cockfs head
with a like invocation".

"In Japan a witness unable to say what form was
hindin , as oaths are unknown in Japan, was directed
to 511 a lighted Candle declaring that if speaking
fa1se1y_his_soul will be exting1.u'shed like the ﬂame-.".

In Siberia, in iaw suits between the Russians and
the wild Ostiaks it was usual to bring into court the
of at boar, tho Cistiak making the gesture of cat-
ing and callmg' ontiie hear to devour in like manner it
he does not tell the trutli". Among the Nagas of

J-Mulls, Msh-omcdan Law (I961), page 277.
'Quinn, Chapter XVI ; sec Best on Evidence (1922), page ro, para.

'Wc-rss of Ieremy Eezulusm, (1938), Vol. 111, part V, page 1915.
'Phipson on Evident» (1963): page 375. part 1497.

_ 'The atategucnt as to th: Chinese refs:-3 to thc Engﬁsh pgaq-,i.;e_ 111.3,;
18 no " oath" 1121 Chinese _G0urts---\!i7igi:1o're, " Evidence" (1923), page 35:
fo°,tnmI==é'- and Best on Evldence (1912), page 153, para. 163 ; Phipmn on
Es-mtnce {I963}, page 1497- »

'Soc Encitlooaeaaa Britannica [New Edna, Vol. :5, micre on "aim", 7

6 .

Assam, men lay hold of a dog or a fowl by the
head and feet, which is then chopped in two with a
single blow of the ciao, this being emblematic of the
fate expected to befall the perjurer. Or a man will
take hold of a barrel of a gun, a spearhead or a tiger's
tooth and solemnly declare "If I do not faithfully per-
form this my promise, may I fall by thisl." Similar
oaths are sworn on the head or skin of a tiger by the
Santhals and other indigenous tribes of India}

°f 14. Bentham thought that all oaths were useless. He
byd has stated--~ -
o;h.-_,,_ '"1 "The oath is -taken by everybody, everybody

violates the oath so taken, nobody is even punished for
violating it, nobody is ever put to shame by the viola-
tion of it. And such, then, is the ground of the
inference_,---oiz., that, to whatsoever object direct,
whether to the 1£¥reventio'n of transgression many other
shape, or to' the prevention of transgresdon- 'in, the
particular shape of mendacity, the instrument in
question, the ceremony of oath, is inefficient and
uselesszf'. . .
I i it at '

"Consistently with the_ opinion so generally enter-

tained by unreﬂecting prejudice, a place upon the list -

of securities for the trustvgorthiness of testimony, and

i thence against deception, and consequent' -rnisdecision
and irdiustice, could not be refused to the ceremony of
an on . ' But, whether principle or experience-be re-
garded, it will be found in the hands of "justice an
altogether useless instrument; in the hands of-injustice.
s deplorably serviceable one'-." - -l

' I U

is ' ' :6

"Ineﬂicacious as is the ceremony of an oath to all
good purposes, it is by no means ineﬁicacious to bad
ones*.'

The same View was expressed by Bentham in_- his supple-
mentary work entitled "Swear Not At All", which contains
"an exposure of -the needlessness and mischievousness as
well as anti-Christianity of the ceremony of an oath".

15. The utility of oaths in any form has also been
doubted by other people of eminence.

15-" Encyclopaedia Britannica (New Edn.), VOL 16. article on "Both".
Iworka of Jereny Bentham (I808), Vol. III, Part V, page 196.

Ifbid, Vol. VI, Part XI, page 309.

'raid, page 315- ' .

-see Hoxdsworth, " History of E ﬁsh Law" (1952). VOL 'XIII.

page B}. .a .

-I-.|'

_ Thus "J.M."'- wrote in 1874-

"Profoundly convinced by a long judicial expe-
rience of the general worthlessness of oaths, I have
become an advocate for the abolition of oaths as a test
of truth'.''. 1

16. On the other hand, there are equally eminent autho-
rities who have taken a contrary view. Kant"
regards the taking; of an oath as a security for ensuring the
trustworthiness of testimony.

Wigmore' after observing that the theory of oath in
mo%e_rn common law is a subjective one, states that the
oat ' '

"is a method of reminding the witness strongly of the

Divine punishment somewhere in store for false swear-

igﬁ. and thus of putting him in .5, frame of mind
culated to speak only the truth as he saw it.". 1 _

the
obli-

1'i'. It has been argued, that the good man speaks
truth without an oath, while a bad man mocks at its

Qomzrary
wow a
utility.

Should
oath: ha

station. Oaths, however, do serve some useful purpose. aboushed?

The" case in favour of oaths can best be put in the following
words'':--- "

"It must be owned' great numbers will certainly

speak truth without an oath; and too many will not

speak it with one. But the generality of mankind
are of middle sort.--neither so virtuous as to be safely
trusted, in case of. importance, on their. bare word; nor
yet so abandoned as to violate a.mo:-e solemn engage-
ment. Accordingly, we ﬁnd by experience that many
will boldly say what they will by no means venture to

. _swear; and the diﬁerence. Which.tl1ey make between
' "these two things is often indeed much greater than
they should; but still it shows the need of insisting on
the strongest security. When once men are under
that awful tie, and, as the Scripture phrase is, have
bound their souls with a bond (Numb. xxx. 2}, it
composes their passions, counterbalances their pre-
judices and interests. makes them mindful of what they
promise, and careful of what they assert; puts them
upon exactness in every circumstance: and circum-
stances are often very material things. Even the good

llielicvod to have been Mcllor J.
icioed in Best on Evidence (1922). page 159: foot-n0te'{_g).

'Kant, " Philosophy of Law" 5 Dr. W. HasI:ie's translation (1887),
at page: :5:-:52.

' 6'Wigo:|o:c, Evidence (2nd Edition) (1933),l;Vol. III, page 857, para.
181 . .

'Archbishop Seeker, quoted Best on Evidence (roan), pages -44.45,

'8
might be too negligent, and the bad would frequently

have no concern at all. about their words, if it were not
tor the solemnitgr of this religious act".

'I'1h&' same view has been expressed by Wigmure, who
says :-- '

"The class of persons whose belief makes them
Capable of being inﬂuenced by the prospect implied in
an oath is decidedly the immense mass of the ccmmu-
n:ity_ Further-mere, in practice these persons are appa-
rently. fur the most part, actually inﬂuenced for' the
better, in their mental operations on the witness-stand,
by the imposition of the -oath, ..... .. .There appears,
tiierefore, in the present Conditions, looked at as-a
whole' no reason to call for the abandonment of the
oath for those persons _Whuse_ belief makes them
susceptible to its sanction". .

1-8. The practice of "taking an oath has been in eigistence
in this countrv since ancient times, and the Indian Oaths
Act, 18_'i'3, itself is nearly a century old. Oaths have also
been recognised in our Constitution; ',[Art1'cles 6!}, 69, 99',
124(6), 148(1), 159, 133 anti 269.] Taking all the circum-

_ stances into consideration, we wculdnot recommend the
abolition of oaths. - T

179"" "f 19. In the case of Omychund v. Barker" Lord Hardwicke,
Fmh mom' L. C. observed---- 7 _ -- . , . .
mg to A _ _ _ _ _ 1 ..
conscience. 1 n __ -
"The next th1l'1g..-=. ....j;:. the f01'm'of_oath. _, . .It
is laid down by all writers' that the outwémd act is not
-essential tc--the oath. . . All that is necessary aﬁpears
in the presentcase; an external act was dlcnc ':6 make it
.- 3- corpcral' act....;.... This falls in exactl" with what

Lord Stair, Puffendorf, etc.,_sa5r that it has can the wis-
~ dom of' all nat.iuns"_to administer such oaths} as are
agreeable to.the notion of the-person taking, and does
not at all-affect the conscience of the person adminis-
tering, nor does it in any respect adopt such I'eligicn.".

20. According to HaIsbu_ry"--

' _ "At cornrnc-n lawytha form of the {math is imma-

c' itcrial,' provided tl_1at"it is binding on the witncss's
conscience, whether" he is of the Christian religion or
not.' . ' ' '

- lwigmorc on Evidr.-ncc (21-id Erin.) (1923), Vol, III, page 375, pm,
r827 (1). _ _

'Om;-chund v. Barksr,Chanccr'g, 1744, r Atkzr ', Wines 533; i 'Wits
K. B, 34; :,6'E.R. :5 5 see Cockle, Cases and Statutes on Evidence (1963),
pcgcsr.-8'D~:B:I.

~.tHah.'bu:y, cm at 'England E31-d 'EdI'1.)',"Vcl. :5', page 435. '

In an American case', Reynolds C. J. said:

"The pure principle of the common law is that
oaths are to be administered to all persons according
to their own opinio-ns, and as it most affects their
consciences".

. 21. A suggestion has been made that in order that the
oath shall bind the conscience of the people, it should be
based on religion. In other words, the oath should be taken
on the appropriate religious scripture. It appears that
the practice adopted by Muhammadan judges before

.the advent of the British rule required that Muhamma-

dans were to be sworn on the Quran and Hindus on the
water of the Gangaz. This practice was, however, altered
by section 5 of Act 5 of 1840, which was in the following

terms 1

"Whereas obstruction to justice and other incon-
veniences have arisen in consequence of persons of the
Hindu and Muhammadan persuasion being compelled
to swear by the water of the Ganges, or upon the
Quran, or according to other forms which are repugn-
ant to their consciences or feelings; It is hereby
enacted, that except as hereinafter provid-
ed, instead of any oath or declaration now
authorised or required by law, every individual of the
classes aforesaid Within the territories of the East
India Company shall make an aflirmation '.0 the follow-
ing effect:

'I solemnly affirm, in the presence of Almighty

God, that what I shall state shall be the truth, the

whole truth, and nothing but the trut .' ".

22. Thus, the practice of taking the oath upon a holy
book or upon the Water of Gangs was abandoned" as. far
back as 1840. It is not likely to succeed if it is revived
now. Since 1840. society has become more sophisticated.
In our opinion, there should be a uniform form of oath
which should apply to all persons alike.' Any person may,
however, with the permission of the Court, swear _an oath
in any other form5-°.

23. It has been argued, that the Act does not lay down pom, nf
a well-worded, rational or true form of oath. and therefore -=nth----othct

the deponents do not clearly understand the implications ""33¢"i°"3-

of the oath. The object of oath,' it is stated, is to call the

'Gill v. Caldwell (I822), I Illinois 53, referred to by Wigmore, Evidence
(1923), page 86:, para. I813.

'See Q. E. v. Mam (1888), I.L.R. 10 A11. 207, :14 (Mahmood ]'.).

'Para. 21, supra.

'App. I, Schedule.

'App. I, clause 6.

'See para. 61, infra.
33 M. of Law-3

attention of the Witness to God, so that he must have the
ideas that there will he super-human retribution for false»
hood: but, it is argued, if a person does not believe in God
as 'separate from himself and as the rewarder of truth and
avenger of falsehood, the love or fear of God rannor. act on
him. It is also argued, that people believe in different
Gods, and their variety of belief affects their conduct, so
that they do not in reality feel any obligation to state the
truth. The word "God" in an oath, it is contended, refers
to the Incorporeal Supreme Soul and not to any Corporeal
Deit}'- Having regard to these reasons, it is suggested, the
words "Supreme and Divine Justice" and the word "In-
tzorporeal" should form part of the oath. Particular forms
of -oaths have also been suggested. A metaphysical discus--
sion about the nature of God and about the constituent
ingredients of that conq'ept- is. however, outside the scope
of the Act with which we are dealing. The invocation or a
supenhuman power to reinforce the moral obligation to
state the truth may be of the essence of an oath in the name
ol God; but it is hardly appropriate to elaborate that aspect
while laying down the form of oath in a statute.

F,,,,,,_ 24. (a) Most High courts have prescribed the following
Eresicﬁlglahcd form of
Cyourtm - "I do swear in the name of God that what' I shall

state shall be the truth, the whole truth and nothing
but the truth1."'.

The oath is taken in the name of God, like the oath
taken under the Constitution by high dignitaries of the
State such as the President, Governor, etc.

(13) In our opinion, the form of oath which is being used
at present, does not require any change. It is a general
form which will apply in most cases. The Court should,
however, have power to permit any person who does not
like this form, to take an oath in any other form". We re-
commend', that this form of oath should be speciﬁed in a
Schedule to the Act, so that there should be no room for
diifetent forms of -oath being prescribed by different High
Courts.

03:1" to be 25. The oath, as administered by Courts in this country,
administered has become a mere formal ritual; it is generally administered
by the by a member of the ministerial staff, sometimes even by a
1"'-d5°' peon of the Court. Administered in this manner, the oath
loses all its sanctity. In order that the oath may be adlaoirr
istered with due solemnity, we recommend", that except m

101- slight variations thertof; Sec Beotrl: 'Outs Act (I964), pages 74-94.
'See the forms of oaths in the Third Schedule to the Constitution.
'Para. 6:, :'r:fra.

'See Appendix I, Schscdulc.

"Aprpcndix I, slant: 6.

the case; of the Supreme Court and High Couxts, it should
be admmistered by the Judge himself

26- The Indian oaths. Act, 1373, provides alsn for what specie:
are 1-mo-wan. as "apeciaI'oa.ths". Secti.-an 8 of that "W13-
Act allows any party #0; 0': Witness 'In, any judicrial proceed-
ing ﬁr give evidence 911 oath or solemn afﬁnnation in any
En-rm common arnozaat or held "binding by rmns of the
race or perzumon In which he belongs, am not repugnant
to justice at decency and not purporting to affect any third
pets-an. Sections 9 and 10 then provide, that if any party
tn any -judicial proceeding offers to be bound by any such
oath or solemn aﬂirmation if it is made by the mher party
to or by any witness in such proceeding, the court may as}:
such other party or witness whether or not he wiJ1 make
such special oath or solemn afﬁrmation. If such other party
or witness agrees to make and makes such special oath or
solemn afﬁrmatiun, then under section 11, the evidence
given on such special oath or solemn aﬁ:'n*mation is, as
against the party who cﬁered to be bound thereby,-, conning
55536 proof of the matter stated'.

2?. The question for consideration, is, whether the provi-- Question
sions relating to special oaths" and the conclusive nature ':_§'°*°'%:'I°"
of the evidence given on special oath as mntained in sec- o,§£°f'o.;.
tions 3 to 12 of the Indian, Oaths Act, 1823, _sheu'rd he re'1ain- ﬁdemd,
ed Gr repealed. Arguments may be advanced far the reten-
tion as well as for the repeal of these provisions. On a.
careful consideration af the arguments for and against
these provisions, we are of the opinion, that the provisions
zéelaéing to special oaths should be-omitted from our statute

ac .

23. One important argument in favour of the retention 1'1-=3'1'~'-'5-'~'-'W5

of the pmvisitms with regspecrt to special oathg is that the *3" f'?'{l°"" °f
special math is an msaimmn of long standing; _1t wag 1'eoog-- ems,
niaed in ancient Hindu texts and cummentanes'; rt was
recognjseé in the Old Regulatiornsi-', it has been recugnised

in we Inciian Oaths Act, 1373; and it is 5:111 in existence.

'Section 12 aeals with 1-eﬁzsal to take the special oath. _
'Pam. 26. supra.

'Kane, I-Iismry of Dlmmnaahasms {$9.46}, Vni. 3, mg: 357, bottom.
353. 3-59: 369-

'Befote the Indlargﬂaﬂna Act, 1373 wasyassed, pmvisions 'ng
spacial oaths were cunmmed'inMa<2rgsReg1:1:_nons No. 3 of 1802, o. 401'
I816 alldﬁo. :5 of I8I_6, when were sn force znpenain parts of the country.
Sui:-section (3) of ancuen :4 of Mash-an _Rcsu1a1'.I«on 4-0!' 1816 -(so far as 1':
related to upemalmdm} was in the foﬂomng temu :--

"E£eil!:et:.:srtg2i:w_'- I11---lc:'.t-.he'::w.\~s-c'|3u_::ettLed ﬁaemﬂtof
:5: mung! s U. 3111: ms dec-mun acco mg to such

at . .

'The _rdeI'a.ut1url.='mI: of meetion 2: cf Madras Regulation 6 of 1316
was as follows :----

" If either party agrees in writing I:o_l=t_thc cause tn be senjedh-y the

(rub of the other, wiﬂlnut appeal. the Dmmct Munsif shall give his dc-

cisian mending to such ".

Arqmnents
asm_nt

special
oaths.

An institution of such long standing, it is contended; should
not, therefore, be abolished.

The argument is prime facts, attractive. But if it can
be shown that special oaths--and articularly tliejoinding
and conclusive nature of the evi ence given on special
oaths---are intrinsically opposed-to sound juristic principles,
and, instead of subserving any common good. have an
inherent tendency, having regard to the irailties of man,
to do harm and mischief, then, the mere ancient. origin of
special oaths cannot be a strong ground for their retention.

29. First, in the present~day India, our system of law
hardly contains any precepts or injunctions laid down in
our ancient codes and shastras. Neither in the ﬁeld of
substantive law, nor in the ﬁeld of adjective law, are we
governed today by the ancient texts or the commentaries
thereon. A special oath is in the nature of an ordeal, and
any ordeal, whether it be an ordeal by ﬁre or an ordeal by
water or an ordeal in any other form, ceased to be a part
of our living law, long long ago.

30. In the next place, though special oaths might have
been in vogue in Hindu India under the Dharrnasastra
School', it may be mentioned that in earlier times under
the Arthasastra School, it was not necessary to administer
oaths in many cases".

31. It is, no doubt, true that in some of the old Regula-
tions there were provisions similar to those contained in
sections 8 to 12 of the Indian Oaths Act, 1873., Thus, provi-
sions regarding special oaths similar in ewbstoncc to those
under discussion, were contained in Madras Regulations No.
3 of 1802,'No. 4 of 1816 and No. 6 of 1816'. But we ﬁnd, that
even at that distance of time the Sudder Court took excep-
tion to these provisions-, as is clear from the observations
which Muthusami Ayyar, J. made' with reference to sec-
tion 3 of Regulation 3 of 1802-4

"It is to be observed that by this Regulation the
decision of a suit by the oath of one of the parties was
expressly recognised if the other party consented to
that mode of decision. In their proceedings of the lath

, December, 1816, the late Sudder Court deprecatcdithe
principle of the Regulation and ruled that according to

'Para. 28, supra. _ ,
'See Dr. K. P. Jmswsl, 'Mann and Yaii'navaIkra'c--(T.L.L-. 29:73»
(1930 Edition), page :33, para. 9. '
'Sec para. .28, supra. _ _
'Va.rudwa Shanbhcg v. Naraina Run' (18:79). -I.L.R. 2, Mad..35£..

its Jﬁruéﬂnﬂlietiqnu, at court cannot decide a suit sirnply
upon the oath of one party, even though the other
consented to that mode of decision".

. | '
' It it that as early as 150 years ago the Madras
Sndder ourf deprecated the principle underlying the pro-
-relating toispecial oaths and the binding nature of
the evidence given thereon.

32. Letus, then, -eiramine the claim made on behalf of Harm
special oaths that there is no evidence to show that special 3:12:31 by
oaths have done any harm. This claim does not appear to o,,h,,._
be well--founded. In this .connect_ion, attention may be Privy Coun-
drawn to the Privy Council case of Inder Prasad V. C" '-'"°~
Jagmohan Dosl. The facts of that case, as stated in the
judgment of the Privy Council delivered by Lord l-l1anes-
burgh, made some startling revelations. In a partition suit
between the plaintiff-, Inder. Prasad, and the defendant,
Jagmohan Das, the disputes as to the immovable properties
were amicably settled. But with regard to the rnovahles,
the disputes became highly embittered. After several
years of protracted litigation, both the plaintiff and the
defendant came to some amicable settlement even with re-
gard to the rnovables. and, in pursuance of the agreement
of both the parties which was recorded by the court," several
lists of movable properties were ﬁled by the plaintiff.
Under the agreement as recorded by the court, these lists
would have secured for the plaintiff a decree for practically
the whole of his claim, and there would have been due to
him from the defendant a sum exceeding two lakhs of
runees.

33. But then suddenly a strange thing happened. The
whole situation cannot be better described than in the
words of Lord Blanesburgh himself. His Lordship in the
course of his judgment observed---- '

"But, then, a strange thing happened. For some
reason unknown--the Subordinate Judge describes it
as 'a ﬁt of responsive generosity' on the part of the ﬁrs';
plaintiﬁ, he on the 30th March, 1922, when ﬁling his
lists, made in the court, in the presence of the ﬁrst
defendant, the oﬁer on which everything now turns. It
is thus recorded by the Subordinate .l'udge----

'Lala Inder Presad says he will give up out of his
lists such items as Jagmohan Das denies before the
Deity Lachmi Narsinghi. Jagmohan Das accepts
thisilil

34. In pursuance of this offer, Jagrnohan Das, the defen-
dant, took a special oath before the Deity and gave his

llndnr Pt-and v.}.:agnmhr:m Das (1927), 54 LA 301 ;[.L.R. 2 Luck.
3:6 ; 3: C.W.N.. I053 ; A.I.R. I927 P.C.. 16s. _

Special
oaths and
wager of
law.
D¢I=i30l'Y
and sup-

oaths.

14 -

evidence, the effect -of which may best be stated in the
words -of the Privy Council---- \.

"By admitting . . . . ..practically all the items which
involved any liability on the part of the ﬁrst plaintiff,
and denying practically all the items which involved
any liability on his own, the first defendant had trans-
formed the lists which disclosed an indebtedness of over
two lakhs of rupees from him to the plaintiff into a bill
ultimately adjusted at Rs. 93,672-15-3 due by the
plaintiff to himself and his son.".

35. The plaintiff, thereafter, being thoroughly alarmed
at this, protested to the Subordinate Judge about the pro-
ceedings, and the matter came ultimately to the Privy
Council. Relying upon the language used in sections 8 to
12 of the Oaths Act, 1873, their Lordships of the Privy
'Council dismissed the appeal of the plaintiff with costs. But
it will appear from the judgment of the Privy Council, that
in more places than one the Privy Council statéed that they
were Constrained to adhere to the view of the agreement
taken by the courts below. Thus, their Lords}-lips stated1---

"But cm full consideration, their Lordships are in
this matter .co'nstra.tne_d to adhere to the view of the
agreement taken by the Courts belowf'.

Again, their Lordships Observed'----

"For all these reasons, their Lordships dealing on
this branch of the lappe.al..........are constrained to
agree with both courts in India that the statements
made by the ﬁrst defendant in the presence of the

family Deity and before the Commissioners were con~ -

elusive upon the plaintiff.''.

36. A study of the facts of this case leaves no room for
doubt that -a great mischief and harm was done to the
plaintiff in this case, because the courts, including the Privy
Council, had no other alternative than to give effect to the
mandatory provisions of sections 8 to 11 of the Indian Oaths
Act, 1873: But it .is clear from the judgment of the Privy
Council, that the Privy Council was not at all satisﬁed with
the result of the appeal; otherwise their Lordships would
not have used the word 'constrained' more than once inthe

course of their judgment.

3'7. The conclusive character of the evidence given on
special oath makes it look like a wager of the law. As
is stated by Best3,---

"One of the greatest of these (abuses) is the
investing of oaths with a conclusive eﬂ'ect,-----where the
iaw announces to a person whose life, liberty or pro-

13'r C.W.N. 1053, 1058 ; right hand, in A.I.R«. 1927, RC. 165, 168.
'31 C.W..N. 1053, _:o62 3 right hand, in A.I.R. 1927, P.C. 1155, I72.
'Best on Evidence (1933). Pages 45-46, pm. 59.

party is in jeopardy, that in order to save it he' his
only to swear to a certain indicated: fast. This was
precisely the case oithe wager of law anciently mud
in ﬂigland, and the system of purgaticm under the
cannon law. So, in the civil Law, either of the litigant
parties might in many cases tenwr anoath, called
'the decisory oath', to the other; who was bound,
under peril of losing his cause', either to take it, in
which case he obtained judgment Without iurther
trouble, or refer it back to his adversary who then
refused it at the like peril, or took it with lilte prospect
of advantage. The Judge also . . . . .. had a discre-
tionary power of deciding doubtzﬁul cases by means of
another oath, called the 'supple-tory oath', administered
by him to either of the parties.

With reference to these, one of the greatest
foreign authorities (Pothier) , who to the learning of a
jurist added the- practical experience of a judge, ex-
pressed himself as follows :--

'I would advise the judges to be rather" sparing
in the use of these precautions, which occasion
many perjuries. A man of integrity does not
require the obligation of an oath to prevent his
demanding what is not due to him, or disputing
the payment oﬁ what he owes; and a dishonest
man is not afraid of incurring the' guilt of perjury.
In the exercise of my profession for more than
forty years, I have often seen the oath deferred;
and I have not more than twice known a party
restrained by the sanctity of the oath from persist-
ing i.n What he had before asSerted'*."'

38. Partaking of the nature of wager of the law", the
provisions relating to the conclusive and binding nature
of the evidence' given on special oaths appear to be op-
posed to sound public policy. '

39. The provisions relating to special oaths are open to 17un,;1.mem.1
more fundamental objections. According to the normal obie-:u'o_ns
judicial process, every dispute which comes before a court '° ',§'°°"'1
should be decided according to the evidence adduced in °"' 5'
accordance with law by the parties to the dispute. But,
in the case' of a special oath, a dispute is settled on the
mere statement of the adversary or any witness.

40. But, then, it is contended that the freedom oz! choice Freedom
of a person should not be interfered with. If a person of cgmtract
out of his own free will offers hirnselﬁ to be bound by the °°""d°"d-
testimony 01 his adversary, then the law should not stand
in his way. The argument is specious, and does not stand

1-: Ev. Path, article 831.
Tara. 37, :up_ra.
'Bunting section II.

close scrutiny. It may for the sake of argument, be
conceded that a man may out of his free will agree to
settle his dispute in any way he likes, so long as he does
not bring his dispute within the seisin and cognizance of
the court. The moment he does so, he is bound by the
rules which govern and regulate all judicial process.
Even in the compromise or adjustment of a suit, it is
expressly required by the Code of Civil Procedure1 that it
must be proved to the satisfaction of the court that the
suit has been adjusted wholly or in part by a lawful agree-
ment or compromise, and it is only after the court has been
so satisﬁed that the court can pass a decree in accordance
with such agreement or compromise and not otherwise.
And what is a "lawful" agreement is to be determined by
reference to the provisions of the Indian Contract Act,
1872, specially those contained in Chapter 11 {sections 10
to 30) of that Act. But in the case of a decision of a dis-
pute by special oath, the court is a passive spectator, and
the statement of the adversary is given the' character of
conclusive evidence as against the other party. It is not
desirable that the court should become a powerless and
silent spectator and be constrained to accept the evidence
sworn to on special oath as conclusive, whatever may be
its own view on such evidence. The court cannot be made
to abdicate its own judicial functions in this way.

41. Then, the so-called freedom of choice or agreement
or will may turn out on ultimate analysis to he a complete
negation ct freedom, because the parties to a dispute may
not be in a position of real equality. One may be a simple,
illiterate gullible person having implicit faith in his ad-
versary, specially when he is making a statement in the
name of religion or God or in the presence of some
religious symbol. The adversary, on the other hand, may
be a cunning person or a person having no moral scruples
or religious fear or qualms of conscience. He may not
hesitate to utter a 'downright and deliberate falsehood or
to perpetrate any other dishonest or corrupt act for the
achievement of his selﬁsh ends. To him, the touching of
a copy of the Gita or the Quran or a pot of Water o:E the
Grange may mean no more than touching a few pages of
paper or a pot containing some liquid substance.

42.. It may, perhaps, be safely asserted that, by and
large, man has not reached that stage of moral stature
or spiritual illumination wherefrom he does not hesitate
at all to give up and forsake his self-interest for the sake
of truth and djurrma. When that stage will he reached
among manliind, the necessity for law as an instrument
oﬁ social control will perhaps no more be. But, as long as
that stage is not reached, courts and laws are' necessary
for the settlement of antagonistic jural relations among
the members of the society. The oft-quoted saying of

1Order 2.3, rule 3, Code of Civil Procedure, 1908.

17.

Sir Henry Maine.'that the movement dfsociety has been;
from status to contracthnb longer holds good in its etirety...
The law now stepsdn to regulate 'human relations at every

stage, and does not allow them to be governed by agree- - '

ments andyfree will", -"because"-it has been found by bitter-
expierience-that freedom} of 'contract' and will in many
ﬁelds of human relational insteadof subserving the ends"-..
"of social justice. brings 'about glaring injustice and un-
fairness in relations between -man and man." - Therefore,
thecentral point -in' a =modern -developed system of law,.
specially in _systen1s_.basted upon the Anglo-Saxon juris-
prudence and common law. is not Will, but relation.

43. The law is not so much concerned with the agree--
ments and stipulations. which brought arelation i_nt_o--
existence, as with the legal rights, duties and obligations.
involved in that relation. This relational aspect of the
law was noted by Brett. J. in the well-known case of
Heaven v. Render'. as' early as the eighties of the last_
century. .He obse'rved----- ' ' .

p"'Thei questions which we have; to solve;j.r_1,_this.:
case are---.-what is_ the proper deﬁnition of; the relation
between two persons other than the relation establish-
ed by the contractor fraud which imposes on the one
of them a duty towards the other to observe, with
' regard to the_Person or property of such ._other, such
_ ordinary care, or skill as may be necessary to prevent
injury to his. person or pr.operty.".- i

44. Reference: may be1;.1nade' in this connection also to-
the well-known observations of Lord.At_l_:in in the famous»-
case of Dono "line u..-S.teoi_enson'. We=.need._ not dilate. one
this point. glance at ?the modern statuterbook' of any»
co1,1n1:ny.wi__11.rprovide..i i - erable instances of statutory-
relations which have sugplanted purely *contractua1t.rela-l
tions. The doctrine of laissez faire or naked individualism

_ of the eighteenth or earlynineteenth century, is a far' cry

from the social and juriatic philosophy of the second half"
of the twentieth century. '_The moment a person appears
before the court as' a plaintiff and drags the' other -party"
before the court as a d»efendant_ that very moment the two
stand to each other in the relation of plaintiﬂ and defen-
dant, and the court becomes the arbiter" of their disputes.
The 'court 'is bound, therefore, to decide the dispute a'cc'ord- -
ing to known and well-established rules of judicial p'roce- -
dune. After that relationship has been established, the-
decision of; the dispute should not she left to the mere-
statement of the person; 'taking the special oath.

'Maine, Ancient L.¢w.(Pollcck_'s Ec1n._}, p 182. Sec Graveson. "Movo- Q
meal: from Status to Contract', (1941) 4 M. .R. 26:.

'Hedtlen v. Pmdcr, (£383) it: 503.
'D0nog}Iue v. Stwmson, ms'-.-) A.C. 561, 579-584.

' -45. In view_ the above conoiderationsl, we;-eoomniend -
that the provielone contained-in -sections .8 to, 12 of the -

é','."';.=i.. .,.,;.., Indian Oaths .Ai:t, 1373, should be omitted.

'g;I"$_';':d_ 45. Having inadouuthese _genera1i observations, _u7e now
proceed to deal with the important points that seem to
arise on a study of the various sections of the Act.

l'me:mJ:1:. 4.7. A sugg-eétion has been made that the preamble

should be amended so as to bring forth the impact of

Act in the ethical sense', to emphasise the correct concept
of the oath and the consequences ﬂowing from false

swearing, and to lay down a uniform system of oath. -We ,

do not think I t it is necessary to amend the preamble

for this 1: ', particularly when it is not the usual
praetice in modern Acts of Parliament to have a
preamble'. i ' -

gcﬁnihmn is. The Act ones not contain any deﬁnition of 'oath'.
°' ' The 'ex ression 'loath' is deﬁned in section M37), of the
Genera Clauses: Act, 1897, as includin an 'aﬂirmation',

and this deﬁnition applies to all Contra Acts made after

the 3rd Junu.ar_y,t1BBB3-". It' is, however," not necessary to

rely upon this deﬁnition, because," wherever the expression

'oath' is used in the Indian Oaths Act, 1813, the expression
'affirmation' is also mentioned. ' - - ' .

mm" 3 49. Section 3 of the Act excludes from its operation
g,,,_,,.,,,, proceedings before courts-martial, as these courts have
mania, power to adminis!:er oaths under the various'l-a:t&tt;19es;lrselat-
ing to armed forces. [See section 130 of the Air 4Eo_ree
Act, 1950, section, 131 of the Army Act, lﬂtiﬁaamiz-section
110 (1) of the Navy Act, 1957. Thereare 3380.--'=.§lI}V-'.'LSiOl1S

in sections 208 'd 109 of the Now Act, !95!',,-snegnrding \.

oaths and _ on: to be administered to .'i:nta:pre'ters
and shorthand wiiitere. The section does not require any
change in this respect. .

'Section 4 50. Section 4 enumerates the persons authorised to
and 011*'-I' administer oaths. As the Act is conﬁned to iudlclal. oaths,
"'5' the section does not mention persons who have power to

administer oaths tor purposes other than judicial proceed-
ings. Thus, it does not mention-

(i) '"Not'aribs Iluhlici; [section 8(1)(e) of the Nota-
ries Act, 19.52,§authorises a notary public to administer
oaths}; . - _

(ii) Diplomatic oiﬁeers; [See the Diplomatic and
-cgngulgr Oﬂicers (Oaths and Fees) Act, 1948};

trans. 25----44. -
"I'l1c.Bi1lp'ropoaed (Appendix I) has no preamble-
-'See section 4 (1), General Clauses Act, 1897.
'See also section 5:, Indian Penal Code.

' 15.1

(iii) Persons before whom aﬂidavits may be
sworn for the purposes of. civil and criminal proceed-
ings; [See section 139, Code of Civil Procedure 1908,
and sections 539 and casts, Code of Criminal Proce-
dure, 1893];

(iv) Oath Commissioners, mentioned in section
539, Code of Criminal Procedure, 1898. and contem~
pégted in section 139(b), Code of Civil Procedure,
1 8. _

51. At present there is no speciﬁc provision for the Section4and
administration of oaths for the purpose oi aﬁidavits.1f5d3"'5-
While the provisions in section 4 of the Oaths Act and in
section 139 of the Code of Civil Procedure, 1903, and
sections 539 and 5393.11 of the Code of Criminal Procedure,

1893 are adequate for certain situations, there is no com-
prehensive provision on the subject. Having regard to
the fact that aﬂidat-its-may be required not only in con-
nection with iudicial proceedings but also for other pur-
poses, we think that a speciﬁc and comprehensive provision
on-the subject would be" helpful. We have-, accordingly;
proposed an amendment' in section 4, under which the
High Court or the Government, as the case may he, can _
empower any court, Judge, Magistrate or other person to
administer oaths or aﬂirmations for the purpose of
affidavits for all purposes.

5?. Under section 4(1)). Proviso (2), the power of a Sectiﬂnq.
Commanding Officer to administer an oath or aﬁirmation Ind power!
is restricted by two conditions; ﬁrstly, that the oath, etc., :35'. '
is administered within the limits' of his station, and gﬁ,,,'}',:'§
secondly, that the oath, etc., is such as a Justice of the
Peace is competent to administer.' Now, the second condi-
tion is slightly obscure, for the reason that the oath or
ai'ﬁ.r-ination which a Justice of the Peace is competent to
administer in India cannot be ascertained.

The sections in the Code of Criminal Procedure, 1893,
which deal with Justices of the Peace (sections 22 to 25)
do not lay down the' oath or afﬁrma-tion which a Justice
of the Peace is competent to administer.

53. In England, under section 16 of the Evidence Act,
1851', every co_\urt,.Justice, etc., having, by law or by con-
sent of the parties, suthority to hear, receive and examine
evidence is empowered to administer oath to all such
witnesses as are legally called before them respectively}

18:: Appendix I, clause 3.

'Evidence Act, t851_(14 end :5, Vic. c. 99).

'The Act of 1851 is not one of the British Statutes which was lieeble
to Indie.' For a list of such British Statutes, see 5111 Report of e Law
Commission {British Stltutlas Applimblc to India), pages as 54:}. See 'also
the _Bri1:lsh Statutes, etc. Repealing Act (57 of I960).

Scction 5-
Obligation
to "make
oath.

Section 5
mid oath by
accused

'examined as

a witness.

Section 5----

other points.

Section 6-
Principl c.

54. It would appear from the proceedings in the
Governor-G'e11e_1-al's Council (at the time' when the Bill

which led to the existing Act was discussed) ,1 that there

was an old Act----Act 9 of 1836--i-relating to the Command-
ing Olﬁoer"s power to administer oath, and that Act was-
being repealed by the Bill and the provision contained.
therein was proposed to be re--enacted in the Bill. As the
power of a Justice of the Peace to administer an oath is
obscure so far as India is concerned, this part of the
proviso should now be omitted?

55. Section 5 provides that oaths or affirmations. "shall

_be made" by certain persons- Failure to make an oath
or afﬁrrnation would attract the provisions' of section .178

of the Indian Penal Code. under which any person who
refuses to-bind himself by an oath or aﬁirmation to state

the truth" commits an offence. '

56. It has been suggested, that in section' 5, -last para-
graph, 'for the_'woI_'ds "unless he is' examined as a witness
for the defence", the words "unless he voluntarily offers
himsetf as a. witness for defence" should be 'substituted.
This provision is to be read along .»with: section 342A,
proviso (a), of the Code of Criminal Procedure, 1898,
under which the accused is a_ competent"-but not a com-
pellable witness: No such change in the section is. there-
fore, necessary.

57. A iextvlother points- regarding sectienlb are dealt
with separately.' = .

53. Section 6 provides-that Where the witness, etc., is
a Hindu or Muslim or has an objection to making an oath,
he can make an aifirmation. But in every other case the
witness, etc., shall make "an oath. Thus, the liberty of
substituting an affirmation for an oath is dependent on
the community to which the deponent belongs or on his
raising an objection to making an oath. We think, that
every witness' irrespective of the community to which he
belongs, and Whether or not he raises a formal objection
to talting an oath, should have an absolute and uncondi-
tional right to make an affirmation instead of an oath.
It may be noticed, that the Constitution gives such a

1Gazctte of India, (I373), Supplement 2, pm. 238.
'Sec App. I, clause 4.
'Set: 'App. 2, Notes on Clauses, clause 4-

liberty to holders of certain ofﬁces who are required to
take an oath on assumption of oﬁice'-2.

We, therefore, recommend,' that the section be ainerfded
so as to give absolute liberty to a witness to affirm instead
of making an oath.

59. The change proposed by us in section 6' will, Station 6--
incidentally, -obviate the criticism that the section, by "ﬂier _
expressly exempting Hindus and others from making an '"33°"°"3'
oath, encourages them to make a solemn eﬁrmation

(ill. The form in which an oath should be taken has Section :7...
been discussed elsewhere? Eftinm O

61. We are at the opinion, that while ordinarily the Section 7
general form of oath or affirmation"-i should be adhered SE14 Permit-
to, the court should have a power to permit a witness to to
take the oath, etc., in another form which is regarded as use an
"binding by the class of persons to which he belongs. We oa.th_ in s
have, accordingly, proposed a suitable provision" on the lgamcuiﬁr
-subject, on the lines of existing section 8. mm'

62. A suggestion has been made that, while taking Scctiqn 7---
an oath the deponent should hold in his hand the re1i- {jgglns of
gious scripture in which he believes, e.y., the Gita or '
the Quran. This aspect of the matter has been discussed

elsewhere."

'Article 60 . . . . . President ;
Article 69 . . . . . Vice-President ;
Article 99 . . . . ,. Members of Parliament ;
'Article 124 (6) . '. . . Iudges oi' the Supreme Court;
Article 148(2) . _ . .. . Cornpu-ollcr and Auditor-

. General;
Article I59 . . . e . . Governors;
Article 188 . . ' ' . . '. Members of the State Legisla-

tures ,'

Article 219 . . . . . Iudges of High Oourts.

_*Article 75 (1)ﬁrclating to Ministers of the Union, and article-164(3)
relating to State _ rustets, speak of oaths of oﬂicc and secrecy wit11outmen-
tioning " aflirmation ' '; but the fom:-_is given in the Third Schedule (forms I,
II, 'V and VI) allow affirmation without any condition."

' 'Appendix -I," clause ' 5.
_"See paw.-a.l5a, supra.

* -'Para. 24 (5), supra.
'App. 1, Schedule.
'Para. :3; 'hrprq. A -
'App. 1, clause 6.
'Pin. 21, supra.'

22
63.. It has also been suggested that the oath should

"Id be administered by the. presiding oﬁcer of the Court.

Section: 8-1:.
pedal

.We have accepted the suggestion, for the reason stated
elsewherel. ' . ' . '

64. Sections 8-12 are proposed to be deleted, in view

-of our rec_onnnendation9 to abolish special oaths. _

Section ::;i----

65. Section 13 provides that an omission to take an
oath, etc., or"any irregularity therein shall not-
(i) invalidate the proceedings;
(ii) render inadmissible' any evidence;
(iii) aﬂect the obligation to state the truth.

A suggestion has been made to limit the saving _to {iii}
only. We are not. inclined to accept the suggestion.

66. Section 14 -provides that every person giving
evidence On" any subject before any court or person
"hereby~.authorised" to administer oaths and aﬁrmations
shall be bound to state the truth on such subject. The
signiﬁcance of this section can be best understood by a
reference to the relevant provisions of the Indian Penal
Code. Thus, under section 179 of the Code, whoever,
being "legally bound" to state the truth on any subject
to any public servant, refuses to answer any question
demanded of him touching that subject by such public
servant in the exercise of the legal powers of such public
servant, is punishable with the punishment provided in
the section. Similarly, under section 181 of that Code,
a person so legally bound is punishable if he makes a
false statement. Lastly, under section 191 of that Code,

whoever beings-legally bound by an oath or by an express .

provision of law to state the truth makes a_ false state-
ment, is said to give false evidence and punishable under

section 193.

67. It may be noted, that the taking of an oath is not
a condition precedent to the obligation to state the truth
ﬂowing from section 14. All that section 14 requires is,
that the Court or other rson should have power to
administer oath in order t t the evidence given before-
the court or other officer may become subject to the obli-
gation to state the truth. The decision in a Calcutta
case", to the effect that the offence of intentionally giving
false evidence under section 193 of the Indian Penal Code
(which applies to false evidence in a stage of judicial pro-
ceeding and also to false evidence in other cases) may he
committed although the person giving evidence has nei-
ther been sworn nor afﬁrmed, can be said to be based on
this reasoning. [The judgment does not give the reasons

:lE:s"i:' 1?' mm" aid' 'aI oath
_. , supra, reg mg spec: s.
'Gobmj Chandra v. Q. E, (1892), I.L.R. 19 Cal. 335, 358.

and is a very short one,'butvthe'ergume:nts of Mr. Kilby,
who appeared for the Crown, may be seen._]

68. We have proposed a Schedule which contains the 332;?-11*
form of oath'.

69. The important changes which we have recornmen- Other
ded have been discussed above. The other points on which '-'hi'-"£°5~
we have recommended changes in the law will appear
tram the notes on clausesz.

70. In order to give a conerete shape to our recomen- Appendices».
dations, we have,-in Appendix 1, put them in the form
of a draft Bill. ' .

Appendix 2, contains notes on clauses, explaining, with
reference to each clause in Appendix 1. points that might
need elucidation.

Appendix 3 summarises our recommendations in res-
pect of other Acts,

Appendix 4 contains a comparative table, showing the
section in the existing Act and the corresponding c1ause,,
if any, in Appendix 1. '

J. L. KAPUR----Chm':rman.

2. K. o. DATAR.

'3. s. K. HERANANDANI.

4. s. P. sen vsnnn.

5." T. K. TOPE.

5. :e. P. MDOKERJEE.

Members.

¥«---..-.__v_,.__....___,I P. M. BAKSI-II, Joint Secretary and Draftsnmn.

pNrw DELI-II, The 22nd May, 1965.

=Sée .15. '.

'See )2-,"1'3:§s "on Clauses.

Short title and extent.

(5. I) Saving of certain oaths and afﬁ rmations .

(S-3) Authority to ' administer oaths.

-{S-4) . 24 APPENDIX 1 PROPOSALS as SHOWN IN rm: FORM or A nnarr BILL (This is a tentative draft only) INDEX TO THE BILL 'Clause Subject-matter I Short title and extent.

2 Saving of oertain oaths and affirmations.

3 Authority to administer oaths.

4;} Oaths or aﬂirmations to be made by witnesses, jurors and interpre- ters. I 52 Aﬁinnation by persons desiring to afﬁrrn.

6 Forms of oaths and afﬁr:-nations.

7 Proceedings and evidence not invalidated by omission of oath or n-regularity.

8. Persons giving evidence bound to state the truth. 9 Repeal.

SC'.HEDULB--FORl\iS or Oams THE OATHS BILL, 196. . . .

A Bill to consolidate and amend the law relating to judicial oaths and for certain other purposes.

BE it enacted by Parliament in the . . . . . . . . ..Year of the Republic of India as foI1ows:----

1. (1) This Act may be called the4Oaths Act, 196------.

(2) It extends to the whole of, India except the State of Jammu"and Kashmir.

2. Nothing herein contained applies to proceedings be- fore Courts Martial or to oaths, afﬁrmations or declara- tions prescribed by the Central Government with respect to members of the Armed Forces of the Union.

3. (I) The following courts and persons are authorised to administer, by themselves or, subject to the provisions of subsection (2) of section 6, by an ofﬁcer empowered by them in this behalf, oaths and afﬁrmations in discharge of the duties or in exercise of the powers imposed or con- ferred upon them respectively by law, name1y'----¢ '

(a) all courts and persons having by law or con- sent of parties authority to receive -evidence;

(b) the Commanding Oﬂicer of any military, naval. or air force station or ship occupied by the -armed forces of. the Union; provided the oath or afﬁrrnation be administered within the limits of the station.

(2.) _Withm:.t-prebudice to the powers conferred by "sub-section (1) or y or under any other low for the time being in force}, any -court, Judge, Magistrate or person may odmmister oaths and aﬁi-rmations for the p purpose of aﬁidcoits, -if empowered in this behalf---

(ri), by the "High Court, in respect of affidavits for the purpose of judicial proceedings; or -

(1)) by the State Government, in respect of other cﬂideoits'. _

4. (1) Oaths or - affirmations shall be made by the '3a"h5 °_'=' following persons, m1mely:---- fgiilﬂagiﬁi

(a) all witnesses, that is to say, all persons who 55' ""'i""°""-'t . . . i or and may lawfully be examined, or give, or be required to ;§:¢,%,eu._,s_ 5 give, evidence/-by or before any court or person having (5. by law or consent of parties authority to examine such persons or to receive evidence;

(1)) .interpre_ters of questions put to, andevidence given by, witnesses; and

Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though he under- stands the duty of speaking the truth, he does not under- stand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness, but in any such case the absence _-of_ an oath or aﬁﬁrmation shall not render inadmissible any evidence given by such witness nor aifect the" obligation of the' witness to state the truth.

' (2) Nothing herein contained shall' render it lawful to administer, in a criminal proceeding; an oathlor siﬁtmation to the accused person, unless he is examinedas a witness for the defence, or necessary to administer to the oﬁicial interpreter of any court, after he has entered on the execu- tion of the duties of his office, an oath or aﬂirmation that he will faithfully discharge those duties.

5. A witness, interpreter or juror may, instead of msk- Amnnaeion ' th ake afﬁ ti :1. by ' one mg an oa , m an 1-ma, o desgitgrg to (S. 6_',I-

--..,,_ 'Alternative Draft of clause 31(2) : ' ' The I-lligh Court, in the case' of affidavits for the purposes of judicial proceedings, and the State Government, in the case of other aﬂidavits, may

-empower any court, Indses M ' to or person to administer oaths and nfﬁnhaﬁons for the purpose such afﬁduvits.

JFO:-111113 ofd s. (1) All paths and afﬁmiatigas made soda: section 3 :§ﬁ1_;l;§m shall be administered--acco._I'di_ng to such" one of the forms (s_ 7) ' given in the Schedule as may be 'ap;rropraa.te to the ' circumstances of the case: ' Provided that if a witness in any jU.diClﬂ'l procleeding desires to give evidence on oath or solemn aﬁirmation in any form common amongst, or held binding by, persons of the class to which he belongs, and not repugnant to justice or decency, and not purporting to aﬂect anu third person, the court may, if it thinks ﬁt, notwithstanding anything hercinbefore contained, allow him to give evidence on such oath or -aﬂirmation.

(2) All such oaths and a rmations shall, in the case of all courts other than the 'U-IJ'i"€'me Court and the High Courts, be administered by the presiding officer of the Courts himself, or, in the case of ct Bench of Judges or Magistrates, by any one of them.

391-ocegdjngs '7. No omission to take any oath or make any aiﬁrination,

-.and_evid_enCe no substitution of any one for any other of them, and no '§§'g"V"h'?"" irregularity whatever in the _form in which any one of them ' 5' °m"' is administered, shall invalidate any proceeding or" render aion of oath _ _ , _ _ , or i.rregu- inadmissible any evidence whatever, in or in respect of 131'it5'-- which such omission, substitution or irregularity tool-l: place, '(S' I3) or shall affect the obligation of a witness to state the truth.

- P."'¥3°"S 3. Every person giving evidence on any subject before $33" any court or person hereby authorised to administer oaths bound to and affirmations shall he bound'to state the truth on such state the subject.

u'ut.h._ (S. :4) Repeah .9. (1) The Indian Oaths Act, 1873, is hereby repealed. ,0 of 1373.

(2) Where, in any proceeding pending at the r.ommen_ce-- meat of this Act, the parties have agreed to be bound by any -such oath or affirmation as is speciﬁedlin section 8 of the said Act, then, notwithstanding the repeal of the said Act_ the provisions of sections 9 to 12 of the said Act shall continue to 'apply in relation to such agreementas if this Act had not been passed. a SCHEDULE [see section 6] Foam oi' OATHS

-E; New] Form No. 1 (Witnesses):--

swear in the name of God .

I do that what I shall state solemnly affirm - a shall be the' truth, the whole truth and nothing but the truth.

3?

Form No. 2 {Juroz-s);--» swear in the name of God I do - i that I will well and truly solemnly aﬁirm _ ' try and true de1ivergm2e'make between the State and the pi-isonei-(s) at the Bamiwhum I shall have in charge, and a true verdict give according to the evidence.

Form No. 3 (Interpreters):--

swear in the name of God I do ; 'that I will well and truly solemnly affirm interpret and explain all questions put to and evidence

-given by witnesses and translate correctly and accurately all documents given to me for translation.

Fﬂml No. 4 {Aﬂ'u:1a1>its):-----

swear in the _na1ne of Gad I do _ that this is my name and

- solemnly _afﬁrm signature {or mark} and that the contents of this my afﬁdavit are true.

.A§'PE'NI}IX 2 Norms on CLA'U"-SEE Clause 1 _ {Existing 4!. 1} , The word "Indian" has been omitted, in conforrnity with' recent legislatijre prafctice. ' Clause 2 (Existing s. 3) No changes are Pmﬂﬂsed in exigting section 3.

.C?twe 3 (Existing s. 4) Since a provision about atinﬁnistrationnof oaths by the , ;;!reSid_ng.'oi'ﬁeer himself (except in certain cases} is p1'D- _ ' posed', this section has been 'made subject in that provision.

In paragraph (b), the words "troops in the service of Government" have been [replaced by the phraeeology 'Sec clause 5. T is "armed forces of the Union", in accordancei with modern usage. a The requirement that the oath, etc.. administered bx; a Coznmanding Oﬁiccr should be the same as that 'which a J'-13399 Of the Peace can administer, has been omitted.' A provision regarding aﬂidavits is added.'-3 A few other points have already been dealt with."

Clause 4 (Existing s. 5) _1. No changes are recommended in section 5. Certain points relating to the section have been dealt with,' .

2. As to the admissibility of unsworn testimony of a child witness. the existing proviso makes the position quite clear. in a Privy Council casef from Somaiiland. [Where the Indian Evidence Act and Oaths Act applied}, reliance was placed on section 13 to support the conclusion that such unsworn-testimony of a girl of 10 years is. admissible, and that corroboration goes only to weight and value.

Before the proviso was inserted, there was sglne _contro~ versy as to the value of the nnsworn evidence of a. child.'-U' That cannot survive now.

3. Paragraph (c) of section 5 requires oaths to be made jurors. If and when the provisions regarding jury in the Code of Criininal Procedure, 1898. are deleted," conse- quential changes may become necessary in this part of the- section. In the meantime, the provision may stand.

4. Section 5, last paragraph, provides that "nothing herein contained shall render it lawful to administer in a criminal proceeding oath or aiﬁrmati0n_ to an accused person. . . ....'-' It has been held," that the expression "cri-' mini] proceeding" denotes a proceeding before a. criminal court, and does not mean a proceeding relating to a case- pending in a criminal court; accordingly, it was decided that a confession made under section 16%, Code of Crimiru-11 Isce the ::od~,.-"<':&'i;h=-Jatcpcirt. pazraa: s2---«$4.

'See the body of the Report, para. 51.

'St: the body of the 'Report, para. 50.

+see the bodrofthe Rwoxt, paras. 55-56.

'Mohamed Sugar! r. .'i"a'as!<.'t'ng, A.I.R. x946 RC. 3.

-3" gym Empress 1:. Mars, (1883) LLB. IO All. 207.

'guge:u Empress v. Lalsafmi, I.L.RL 1: A1]. 1S3;a1so soc I.L.R.1:G Mad." -

105. 'See: also 21!: Pain 1:. Eng, A.I.R. 1939 Rangoon 402.

'The ucstion of amendments to thc_Codc_ of Criininal P1-worn-e. for- nbolitlon the Inn! system is -under comideranon of the Law Cﬁillﬂliﬂﬁiﬁll... See also the 14th Rcporl: of the Law Commission, Vol. 2, page 373. para, 13.

"Karen: ﬂairi =2. Empem. A.I.R. 1947 Lab. 92. 96, pan. :1 CD-B.)---

Procedure, 1898, cannot be recorded on oath. (However, applying section 537 "of the Code of Criminal Procedure, the court admitted the confession in evidence on the ground that no failure of justice had been occasioned.) No change need be made in this respect.'

5. The question how far section 5 of the Oaths. Act Secﬂousand empowers Magistrates ;acting'under section 164, the Code SW5"-I!I!=11l!8_ of Criminal Procedure, 1898 to administer oaths is one on "gdﬂcffcum which uncertainty now prevails. A recent decision ofthe f;.,.',',:,ed,,',E Allahabad High Court", holds, that a Magistrate hag no Code. jurisdiction to administer oath to a person before recording his statement under section 164. Such Magistrate, it was stated. was not authorised by law to take "evidence", be- cause he is not charged with the duty of deciding' any case, and there is no matter to be "proved" or "disproved" before him. Theématter I it Was held) stood at the stage of inves- tigation, during whichno authority had been conferred upon any court to "receive evidence", and, therefore, an oath could not be administered. The Magistrate is not a "court". He does not record any "evidence", and the per- son examined is not a "witness". The proceeding is not -a.

"judicial proceeding". M Decisions of the Madras," Bombay' and Andhra Pradesh' High Courts to the contrary were dissented from, on the ground, that they did not give any detailed reasons for holding that investigation is a stage of "judicial proceeding", and also on the ground that when a person makes a state- ment under section 164. he has not the status of a "witness"

(that is, a person who may lawfully be examined or be ' required to give evidence). The statement of such a person is made voluntarily, and he may refuse to be examined or to make a statement. It was also pointed out, that the Magistrate is not a "court", and that such statement is not "evidence" in a stage of "judicial proceeding".' 'As to witnesses whose statements are recorded under section 164, Cr. P.C ' see Appendix 2, Notes on Clauses, section 5 and statements under s. 164:

Cr. P. C. .

6 ;._S'heo Raj v. Nae State, A.I.R. 1964 All. 294, paragraph 8 (F.B.) (July 19 4 .

sgmn Empress v. Alagu Kane. (1392) I.L.R. :5 Mad. 42: (The word "Court" includes all Magistrates, and section 164 "permits" the statement by a witness ; the person examined is a "witness" within section 5, Oaths Act.) Supp-rt V. Em_a., (I906). I.L.R. 29 Mad. 89.

'Emp v. Vishwanath, (1906) 8 Born. L.R., 589.

"Public Prosecutor v. Nagalinga Reddi, I.L.R. 1958 AP. 614 ; A.I.R I959 Andhra Pradesh 250. , P C'Rely1'ng on Nazir Ahmad v.K:'ng'Emp_sror, 63 LA. 372 ; A.I.R. I936_ . . 253. 4 .

B "Citing Emperor v.P:¢rshBr1am, I.L.R. .45 Born. 834 ; A.I.R. 1921 am. 3. o e '-..-

_ i L »i-_ - ' - .f"' . _ "

. 6. In_the qndermentielged dec£Isi.0!1S.1-2 7 h9W°V°f- i power to aammr "* °***:.:" 35;:

3 "°"°"*m'mg 3 f"-Isa stmmfinisiin rzoslﬁd a 'n I.P.C.

held guilty under eectionf 191 an . (sec Par ., of giving false "evidence .

w 7. - ffe c would riot, perhepa. amount to giVi"r'="

false eErI-1}t':_di1er(:ce1ilnea "judiéial Pmceedmg M' .8] The question of inserting a provision on-the subject in the Oaths Act has been considered -

- 3 ' ' i-

t 9. It is, however, felt thet the matter. §h°'_"Id b'?_c°ns dared when the'_ Code of Criminal Procedure 1S revised.

Clause 5 i (Existing s.' 6)

1. The chanée made in the principle of the existing section has been already explained.' r 2._ The mention of jurors has to be retained so long as the Jury is retained in the Criminal Procedure Coder Clause 6 _ (Existing s. 7)

1. The for-nis have been laid down in the Schedule to-

the Act,_instead f being left to be prescribed by rules as:

at present.' .

2. The court has', however, been given power to permit a witness to take the oath in a diiferent form.'

- 3. It has been provided that the oath should be adminis-

tered by the presiding oﬂicer, except in the cased-of certain. courts." ' ' _ 1E2np.v.Parr;pag:and, I.L.R. r4 Lab. 501 ; A.I.R. I933 Lah. 32:. 'A. T. Krtiibndiriachafi, A.I.R. 1933 Med. 767. ' ' *Rambhm-axe, A.I.R. I944 Nag. 1'-05, rrz, I19.

_ ' f.$Ta_:_'aa':dl v. En_§p_., A_.I.R. 1932' Lab. 254.

t 'A tentative draft would be--- _ "A Magistrags retarding the statement of a ﬁérsou under iééitbn 164 of HM Code of Orimfyol Ptfacedure, I898, shat!-be deemed to be a court w:'z}n'u the nwa'gu'ng'a_f 4, and the person whose statement tr section :0 recorded may Jeémrfd to be :3 witnes: w£tkin'iha_-iluiiiiing of section 5'."'._ 'See the body of, the Report, para. 58. '-'For reasons, roe the body of the Report, para. 24 (b) and or reasons' see" the body of the Réport, pita. 61. ' Isee the body of the Report, pans. 25 and 63.

4._ traeroims or oath': in Iiagnsd 'are as follows.»--- Witnesses at Eagzands--- A , In England' the standard form of oath now is that pres- practise cribed by section 2 of the Oaths Act, 1909, which provides 111 linsland'- that the person taking the oa.th shall hold the New Testa- ment (or, in the case of a_ Jew, the Old Testament) in his uplifted hand and shall say or repeat after the officer ad- ministering the oath the Words "I 'swear by Almighty God that (followed by the words of the oath prescribed by law)".

A person who objects to being sworn has, under section 1 of the Oaths Act, 1888, the option to make a solemn aﬂirmation (see also the Oath Act-, 1961). The form. of such solemn aiﬁrmation under section 2 of that Act is-----

f'I_, A. B.,' do solemnly, sincerely and truly declare and aﬂirm"---theii proceeding with the oath prescribed by law, omitting any words of imprecation or calling to witness;

: For 'Quakers and Mqlfavians a solemn aﬂirrnation or eclaration instead of oath is expressly allowed by the:

Quakers and Moravians Act, 1833'-'. i Subject to these rules, the actual form of oath in crimi-- nal cases in England is as follows3:------

"I swear by the Almighty God (or Ido solemnly, sincerely and_ truly declare and afﬁrm) that the evi-- dence Ishail give 'to the court and jury sworn between our sovereign lady the Queen and the ﬁirisoner (5) at the far Ehaclrl be the truth, the whole trut and nothing but e ru . '. .

J wrors in England-

-In Eng'land,..the oath for jurors in criminal cases is in- the following form':--

"I swear by almighty God (or I do solemnly, since- rely and truly declare and aﬁirm) that I will faithfully"

try the several issues joined between our sovereign. lady the Queen and the risoner (s) at the bar and give a true verdict accor ing to the evidence".

. ...?For details, see. Boland and Sayér's Oaths and Aﬂirmations, (19653- pages 23-24_ and 106, et' seq.

fquakerspand Moravians Act, 1833 (3 and 4 Will. IV, c. 49). 'Arch.bo_ld, Criminal _P_leadings, etc. (1962), paragraph {548.

"-Amhboxd, Criminal Pleadings, etc. (1962).parag1-aph 524.

Forms

-Oath- Ind 0 f is 32 As an example of forms of oaths in use in India, we may refer to the Bombay High Court Rules on the Original Side, 1957, under which the forms are as follow1:--

_ "Witnesses" Oaths (Form No. 88)--Bombag,r High Court.

Christian (on New Te'stoment)----

I swear that what I shall state shall be the truth, the whole truth and nothing but the truth. So help me God. (In case of Quaker substitute, for 'swear' "being one of the people called Quakers do solemnly, sincerely and truly declare and aﬁ'1rIn." ' ' Jew (on the Hebrew Testament)-

I swearithat what I shall state shall be the truth, the whole truth and nothing but the truth. So help me God.

Parsi-

_ [The witness with his shoes on and placi.ng his right hand on the open Zend Avesta, shall. say]---

I swear in the presence of Almighty God tl_1at_'wh_at I shall state shall be the truth, the whole truh and nothing but the 'truth. Manashi, Gavasni, Kunasni.

H -indu and Mohammedan-

I solomnly aﬁirm in the presence of Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth.

Juror's Oaths (Form No. 89)--Bombay High Court.

I __________ __do swear in the name of Almighty God solemnly, sincerely and truly declare and affirm that I will well and truly try and true deliverance make between the State and the prisoner (s) at the bar, whom 1 shall have in charge and a true verdict give according to 'the evidence.

Interpretefs Oath (Rule 37)--Bomba,y High'Co1trt Every Interpreter and Translator before his admission to oﬂice shall take an oath or solemn aﬁirmation that he will well and truly interpret and explain all questions put ' to and evidence given by witnesses, and translate correctly and accurately all documents given to him for translation.

'For Oaths by witnesses, etc., before Commissioners, soc Bombay High Court 0.8. Rules (1957) Form No. 85, end."

{Reese '7 (Existing s. 13) No changes are proposed in existing section 13. As to the wide ambit of this seotion, the under-mentioned deci-

sions may The seen".

The scope of section 13 has been discussed elaborately in a recent pcaseii, which points out, that section 13 cures three kinds of disobedience to the provisions of the Act:--

(i) disobedience by omission to administer either an oath or an aﬁirmation;

(ii) disobedience 'by substituting an oath, where an afﬁrmation had to be administered;

(iii) disobedience committeed by the adoption of a wrong form of an oath or affirmation, when such oath or afﬂrmation is, in fact, administered and there has been no omission to administer it. Each one is a distinct category of disobedience. (The third category has no association with the ﬁrst two. The third cate-

gory refers only to cases in which there has been an administration of oath or aﬂirmation, but it was not administered in the form prescribed for that purpose.) Clause 8 (Existing 5. 14} :4...

No changes are proposed in existing section 14.

1. The Schedule is new. and gives the forms of oath for witnesses, jurors, interpreters, etc'.

2. As to the form of oath for aﬂidavits, compare the undermentioned precedents 5-5-0. A simple form has been adopted, after a study of the various precedents.

'Mohamed Sage! v.K1'::g, A.I.R. 1946 P.C. 3. 'Lalo-.-on '-7. State, A.I.R. I960 M.P. 59, holding that the section is not conﬁned to cases where the omission to give oath is accidental. _ 'GK. Ghandrarekimriak and another v. State of Mysore and another A.I.R.. 1963 Mysore 232.

'See notes to clause 6.

'Bombay High Court 0.3. Rules, (1957), Form No. 19. 'Eoland and Sayefs Oaths and Aﬂirmations (1961), Forms at page [00 or tag. A_ "Civil Procedure code, First Schedule, Appendix C, Forms Nos. 3 and

5. 'Form prescribed by Madras High Court---see Beotra: Oaths Act, (1964), 38¢ 79- 33 M. Of 3}; L APPENDIX 3 Recommendations in resgiect of 'other Acts Code of C-rimima1~_Procedure, 1898:

"The""t1i1i3:'s§i:it53n';' wﬁether an "oath can where the statement of a witness is recordé<T'u'11dér"

164 of. the Code, of C;I;im.ina1 Proceduxg should beﬁqnasidqred when t1,'-{at Cage is fgevisedl. . _ A 'AP15END1x4 camp:-~ati;;g_ Table 'A Showing the provision in the existing_A'ct,.§méc§ tine cor- responding proiv1si'on7, itvaaiy, in the "Bill ir'1,_Appendi:K I. .1 ':

Provision in the cztisting Ad: Provision in Appendix I, '4 .i_SecI:ioi1 I . 5' . 1 M . 'séc:io'nvz (Repealed) .

Wsecvltion 3 K . __ 'Cl4_1.I-u:.--,a. '' Sectinn 4 A .' .' . . ' . Clause 3.

Section 5 . . . . . . . Clause 4.

Section 6 . . . . .' ' K . . Clause 5.

Section 7 . . .' . . . . Clause 6.

Sections 8 to 1! . . . . . Omitted.-W Section I3 . . . ' .. . . . . Clause 7.

Sectio11I4 . . . . -. C".lau§e'3.' I 1566 J5,' Nmes on Clauges, Clmise 4. ' amen Minm Road ND--TS Wing----33 M. ofI..aw (1513)-i.-2-m-15565"-"-I.9'c'>o.

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The Indian Oath Act,1873