This Article is written by Anurag Choudhary student of Delhi University.
An affidavit is a self-made willing declaration made by an affiant or deponent (one making the affidavit) under an oath or affirmation administered by a person duly authorized by law. It traces its root from a Latin word which connotes “pledge one’s faith”. It is witnessed and attested by a notary; also, it is to be signed without any cross-examination by the affiant. Moreover, it acts as a verified statement which is made under an oath on penalty of perjury (intentionally swearing a false oath). As such it can act as an evidence, owing to its veracity, and is required in court proceedings.
Affidavits are usually written in first or third person depending upon the drafter of the document. It consists of three parts which are: firstly, a commencement, identifying the “affiant of truth”. It states that the veracity of claims, made under penalty of perjury, fine or imprisonment. Secondly, it contains an attestation clause (a jurat) showing the details of swearing in of the oath. Thirdly, it contains the signatures of the author and witnesses.
If an affiant gives an incorrect information, it may result in the institution of a criminal proceeding against him/her, except for an unintentional omission. Furthermore, statements not corroborated by evidence are labelled merely as “opinions”. A notarized affidavit also includes a caption with a venue and title in relation to the judicial proceedings; at times even a preamble is added, attesting the personal appearance of the affiant before the notary.
Interestingly, although an affidavit in India is considered to testify the proof of the facts stated therein, it is not treated as an evidence as per the “Section 3 of the Evidence Act”. However, according to the Supreme Court, it can be used as one, under special circumstances if the courts so order. Hence, without a court’s order it cannot be used as evidence.
LAW GOVERNING AFFIDAVITS
Now, regarding the law on affidavits in India, it is governed by “Section 139, Order XIX of the Code of Civil Procedure” and “Order XI of the Supreme Court Rules”. Section 139 mandates the various people who can administer the oath of penalty, fine or imprisonment in India. In case of affidavit under this code – (a). any court or magistrate, or [any notary appointed under the Notaries Act, 1952, or] (b). any officer/person appointed by a High Court in this regard, or (c) any officer appointed by any other court, generally/specially empowered by the state governments for this purpose may administer the oath to the deponent.
SECTION 139, ORDER XIX OF THE CODE OF CIVIL PROCEDURE
Further, Order XIX contains several rules/provisions pertaining to affidavits which area as follows:
- Power to order any point to be proved by affidavit– it states that any court at any time, having sufficient reasons may order any fact(s) to be proved by affidavit, or the affidavit of a witness may be read at the hearing, on conditions deemed reasonable by the court. However, if the court sees that either party in good faith demands for the cross-examination of a witness, and that such witness can be produced then the aforesaid order shall not be made.
- Power to order attendance of deponent for cross-examination – though, the evidence may be given by affidavit, the court may, on the request of either parties, order the attendance of deponent for cross-examination. Attendance shall be in court except otherwise exempted or ordered.
- Matter to which affidavits shall be confined– it states that affidavits shall be confined to only those facts which the deponent can prove by his knowledge. However, in case of interlocutory application, statements of beliefs can also be admitted, provided that the grounds thereof are stated. Moreover, the cost incurred on every affidavit shall be paid by the party filing the same except otherwise directed by the court.
- Court may control evidence–the court may regulate the evidence on various issues. It may determine the requirement of evidence and the manner in which it is required. Additionally, using its discretion the Court may exclude evidence that would otherwise be produced by the parties.
- Redacting or rejecting evidence– a Court by its discretion may redact/edit or order the redaction of those clauses in the affidavit of examination in chief which fails to constitute an evidence in its view. It may also reject/return an affidavit if it is not an admissible one in Court of law.
- Format and guidelines affidavit of evidence– there is a proper from and set of requirements which an affidavit must fulfil in order to be admissible in Courts. Firstly, an affidavit must be confined to and follow the chronology of dates and events required for proving any fact. Secondly, if the court believes that an affidavit is a mere reproduction of the pleadings or contains the legal grounds of a party’s case, it may reject or redact the affidavit or parts thereof as it may deem fit. Thirdly, an affidavit should have separately numbered pages, be divided into paragraphs and each of them must be correctly numbered. Also, for convenience each paragraph shall be limited and connote to a well-defined part of the subject. Lastly, an affidavit shall state and distinguish clearly the statements made from the deponent’s own knowledge and those based on information or belief procured from others; also, it must mention the sources for any matter of such belief or information. In the former he must say “I affirm” and in the latter “I am informed” and if the need be then should add, “and verily believe it to be true”.
ORDER XI OF THE SUPREME COURT RULES
In addition to the aforesaid rules, the “Order XI of the Supreme Court Rules” mentions some distinctive/new rules. They are as follows:
- Every affidavit shall be instituted in the cause, appeal or matter in which it is sworn.
- Affidavits for the purpose of cause, appeal or matter before the court shall be sworn in before a notary or the registrar, or commissioner or any other person as authorised by the Chief justice in that regard.
- If an affidavit requires interpretation to the deponent, it shall be interpreted by an interpreter nominated or approved by the court (within Delhi) and if made elsewhere, shall be interpreted by a competent person who shall give his certification for the same.
- In case of a pardanashin lady, the identification would be done by a person she knows, and that person shall have to prove identification by a separate affidavit.
- If an affidavit has any interlineation, alteration or erasure it cannot be filed in the court unless such errors are removed by the authority (by initialling or rewriting) before whom the affidavit is sworn.
- The registrar of the court is also mandated to reject an affidavit, if according to him there are countless errors and erasures, and a rewritten affidavit would be convenient.
- In case of a special time for filing affidavits, no affidavits filed, post the stipulated time shall be used except by leave of the court.
CASE LAWS RATIFYING THE RULES
On various occasions we also find the courts upholding the importance of the veracity of affidavits in consonance with the rules and sections mentioned above. For instance, in 1910, Calcutta High Court in Padmabati dasi v. Rasik Lal Dhar case strictly adhered to the rules of Order XIX and proclaimed that every affidavit should clearly express how much is a statement of the affiant’s knowledge and how much is a statement of his beliefs and the grounds of belief be stated with sufficient particularity to enable the court to rely on such beliefs.
Similarly, in the case M/s Shukwinder Pal, Bipin Kumar and others v. State of Punjab and others (1982), this Court reiterated that it was the responsibility of the deponent to disclose the nature and source of his knowledge with adequate particulars. In case, allegations in the petition are not affirmed, it cannot be treated as supported by an affidavit as required by law.
Moreover, even the Supreme Court in Amar Singh v. Union of India and others, has directed all the courts to carefully register and scrutinize all affidavits and petitions and reject those which are not in consonance with the Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court rules. Through this judgment, the SC highlighted the importance of affidavits. More importantly, the Supreme Court has clearly said that any perfunctory affidavit which violates the aforesaid rules should not be accepted and entertained by courts. Also, it says that a person deliberately filing a false affidavit must be strictly penalised.
Importantly, there are several consequences of filing a false affidavit including the institution of a criminal proceeding and contempt of court, as it delays judicial proceedings and misuses the judicial process. It is a criminal offence under Section 191, 193,195,199 of Indian Penal Code (IPC).
The law governing the affidavit and the various rules therein ensure the veracity of the claims made in an affidavit by the deponent. It helps the authority to consider the assertions made by the citizen as true and in initiating necessary action. At the same time, the rules and the guidelines mentioned in the “Orders” prevents to a great extent the filing of frivolous and erroneous affidavits, thereby wasting Courts’ precious time. However, the problem consists in the lack of awareness among masses about filing affidavits.
- Aditya Aryan, what is an affidavit? Is affidavit a evidence, LAW TIMES JOURNAL, Mar 17,2020 https://lawtimesjournal.in/what-is-an-affidavit-is-affidavit-an-evidence/.
- Amar Singh v. Union of India and others, (2011) 7 SCC 69
- The Code of Civil Procedure, 1908 https://legislative.gov.in/sites/default/files/A1908-05.pdf.
- The Supreme Court Rules, 1966 https://righttoinformation.wiki/_media/rules/supreme_court_rules_1966.pdf.
- M/s Shukwinder Pal, Bipin Kumar and others v. State of Punjab and others (1982), 1982 SCR (2) 31
- Padmabati dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259