Recently, Justice D Y Chandrachud, during a webinar, stated that, “I want to dissuade people form the idea that virtual court hearings are some sort of panacea. They will not be able to replace physical court hearings. We had to resort to virtual court hearings because Covid – 19 descended without warnings and we had no other choice.[1]  The Covid – 19 pandemic has made the judicial authorities take radical measures to continue to provide access to justice through electronic mode, which have been adopted by some District Courts as well. In furtherance of the same, the Courts have allowed e-filing of urgent matters through advocates without mandating attestation by Oath Commissioner or Notary Public while deferring the filing of attested physical copies.

In the pre-Covid 19 scenario, all affidavits were duly attested by an Oath Commissioner or Notary Public before they were presented before the concerned Court. This requirement has foundation in Code of Civil Procedure, Oaths Act, 1969, Supreme Court Rules, 2013 and rules of the respective High Courts, which provide that oath may be administered by the Court or Magistrate or Notary Public or any officer appointed by the Court. The relevant provisions are reiterated herein-below – 

Section 139 of the Code of Civil Procedure:-

Oath on affidavit by whom to be administered. – In the case of any affidavit under this code – 

(a) any Court or Magistrate, or

(aa) any notary appointed under the Notaries Act, 1952

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf 

may administer the oath to the deponent

Section 4 of the Oaths Act, 1969:-

Oaths or affirmations to be made by witnesses, interpreters and jurors. – 

(1) Oaths or affirmations shall be made by the following persons, namely – 

(a) all witnesses, that is to say, all persons who may be lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and 

(c) jurors  

Provided that where the witness is a child under twelve years or age, and the court or person having authority to examine such witness is of opinion that, though the witness understands that the duty of speaking the truth, he does not understand 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 affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceedings, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

Supreme Court Rules, 2013:-

Order IX Affidavits

5. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. 

7. Affidavits for the purposes of any cause, appeal or matter before the Court may be sworn before a Notary or any authority mentioned in section 139 of the Code or before a Registrar of this Court duly authorized in this behalf by the Chief Justice, or before an Oath Commissioner generally or specially authorized in that behalf by the Chief Justice

The necessity of the administration of oath emanates from the need to punish unscrupulous litigants. There are several instances when judicial system has been afflicted by false claims and perjured testimonies. The Hon’ble High Court of Delhi in HS Bedi v. National Highway Authority of India, reported as (2016) 1 HCC (Del) 179 observed as follows –

“… False claims delay justice and compromise the sanctity of a Court of justice as an incorruptible administrator of truth and a bastion of rectitude. 

False claims cause direct injury to honest ltigants. But this injury appears to use to be only part, and perhaps not the greatest part, of the evil engendered by the practice. ….

.. Filing of false claims in Courts aims at striking a blow at the rule of law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at sake. It would be great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false claims. ..” 

In most of the instances, the lawyers engaged to appear before the Court were also duped. The lawyer cannot be expected to verify each and every single fact presented to him by the litigant. In fact, a recommended reading for the Advocate on Record examination, in a chapter on “Meeting Client” [2] , at the relevant portion reads as follows –

“.. There are clients and clients. You cannot take for granted everything that your visitor may represent to you. It may be an imaginative picture or one in the truth of which the client has worked himself up to believe. He may be honestly under a delusion, or he may be pretending in order to make you believe in a false case…” 

which message is also what is passed on from every senior member of the bar to his juniors.

In order to ensure that litigants cannot wriggle out of their own averments, oath is administered to them for the submissions made before the Court. The Hon’ble Supreme Court of India in State of Rajasthan v. Darshan Singh reported as (2012) 5 SCC 789, observed as follows – 

“… main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth. …”

Further, Hon’ble Supreme Court in Umesh Kumar v. State of Andhra Pradesh & Anr.  reported as (2013) 10 SCC 591 observed as follows – 

“…Attestation of the undated affidavit is in utter disregard to the provisions of Section 139 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”). The Supreme Court Rules, 1966 under Order 11 Rule 7 also require adherence to the provisions of Section 139 CPC. Hence, his reply is not worth taking on record and being undated, renders the same to be a piece of waste paper. 

…… Thus, it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation, and thus, duty to state on oath on the part of the deponent is sacrosanct. Same remains the position in respect of administration of oath as required under the Oaths Act.. ..”

In the prevailing circumstances, when even other administrative institutions are handicapped, an illicitly obtained order can adversely affect law abiding citizens. 

In this view, the absence of Oath Commissioner(s) and Notary Public(s) makes it necessary for every Court exercising original jurisdiction to administer oath to every litigant seeking justice through e-filing / video conferencing, before passing any order. Similarly, even if an application is moved before a Court whose appellate or revisional jurisdiction is invoked, the concerned litigant must be administered oath, before passing any order. 

This task, however, may be delegated to any officer of the Court. 

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Satyam Thareja is an independent legal professional practicing in Delhi. He is also an Advocate-on-Record at the Supreme Court of India.

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[1] Murali Krishnan, Virtual Courts not a substitute to physical courts: Justice DY Chandrachud, available at https://www.hindustantimes.com/india-news/virtual-courts-not-a-substitute-to-physical-courts-justice-dy-chandrachud/story-8YrTg4dmP2IKzFJMnDrdqK.html

[2] KV Krishnaswami Aiyar, PROFESSIONAL CONDUCT AND ADVOCACY, (Oxford University Press, 1945)

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