Truth in an Oath

1. A flower pot was broken. I asked my three years old niece about it. “I do not know” she replied. Doubting her I demanded “Tell me the truth”. “What is truth?” innocent eyes questioned me. I just could not answer. How do I explain the meaning of truth to a three years old kid?. I suddenly swung 17 years back, i.e. 1993, when I took oath of the Judgeship in City Civil Court, Mumbai. From 1994 till 2008 I worked as a trial Court Judge. During that period to administer oath to a witness in the court was a regular feature of my court work. Today, I miss it. In the High Court, as at present I am sitting on the appellate side, there are no witnesses. Parties in person do appear but few. No evidence is tendered. So the grievance of the parties is put up through lawyers and there is hardly a direct contact of a Judge and litigant – a common man. In the appeal, court appreciates faceless evidence which is enveloped and presented in a superb oratory and brilliant interpretations of statutory provisions which the Judge has to unwrap to deliver justice. This is different from Judgeship in the trial court.
2. As a trial Court Judge giving oath for me was a solemn act. An earnest appeal that a Judge makes to a witness to speak the truth and nothing else but the truth! It may be in the name of God or in the name of the conscience of the witness. This appeal is made to discover the truth. Not only the judicial institutions of our country but the judicial institutions all over the world have one mission i.e. to discover truth. Samuel Mill has said “There is always much that remains to be said on all great subjects.” Truth is one of them. When a Judge spends years together in that coveted seat, his search for truth gets more intense. Truth appears to be a very simple word with connotation easy to understand but as you go deeper and deeper it becomes mysterious and I feel it is a synonym for God.
3. I used to teach Indian Evidence Act to students in the Fourth Year at Law College, in Pune. I used to explain that evidence is a process from unknown to known. However, what is known may not necessarily be the truth. This continuous fact finding process goes on when the Judge puts a witness in the box. Giving oath is not an empty procedural formality. It has two aspects. The Judge who is empowered to give the oath subconsciously questions his own moral character as to whether he is unbiased, honest and pure to have the authority to administer an oath to somebody. This creates a sacred obligation on the Judge to observe a simple, honest and good moral life. Secondly, to speak the truth is the duty of the witness. In trials, civil or criminal, when the witness deposes, the Judge is continuously analyzing the credibility of the witness.
4. Our judiciary has adopted the procedure of oath taking from the British Era. In 1873, "The Oaths Act" was enacted and in 1969 it was amended. Prior to that, a procedure of oath taking followed by the witness before `gaon’ Panchayat or `Jat’ Panchayat, which is called “Divya” (Ordeal) or Kriya (Proof) was followed. I have come across some references in the book written by Vithal Trimbak Gune in “Judicial System in Marathas” wherein the Maratha period was covered from 1600 to 1818. "Kriya" or "Praman" or the nature of evidence was classified as under :

Kriya (Proof)

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! !
Munshi Daivi
(Human Evidence) (Divine Proof)
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! ! !
Kagadpatre Bhogavata Gohi
(Documents) (Possession) (Witnesses)

1. After the arrival of a witness his statement was generally taken down before the image of a well known legal Deity or in the bed of a holy river in the presence of parties and the members of the assembly. Before taking their statements, a solemn appeal was made to them so that they speak the truth. It was known as “Kriya” or “Shapath” (oath). “Shapath” or “Kriya” consist of two parts. The first part includes a religious and customary performance necessary to create a holy atmosphere, such as bathing in a holy river or well, assembly putting garlands of Basil leaves around the neck of witness, placing leaves of Belpatra on his head together with holy ashes and drawing seven concentric circles by water from the pot of a shoe maker or painter within which a witness has to stand while giving the evidence. The latter part consisted of long exhortations addressed to the witness by the leader of the assembly relating to the importance and high worth of the truth and the sins which would befall him if he did not give a true and full testimony. This ended with a request to him to speak the truth remembering his 42 generations. Manu the first law maker of Hindus has laid down different modes of exhortations to the different “varnas” to which a witness belongs. However, it appears that during the Maratha and the Peshwa period, the common mode was adopted. If some parties were not satisfied with the evidence brought forth, as an alternative a request for trial by ordeal was made and the request was generally granted. Ordeals like (1) Agni (fire) (1) Raru Divya (heated piece of metal), (b) Irony (heated anvil) were asked to be performed. In those days, people were religious and God fearing. Thus, the custom of asking the person to do some act as assurance of his being truthful was prevalent. Though it was transparent, it was barbaric.
2. Today in the E-World and the Era of Globalization, some may ridicule this act of oath taking or it can be subjected to mockery as being out dated or superstitious. It is not so. It is founded on the inner layer of the human psychology. A person speaks the truth either because he fears God or it is his unsuppressible desire to speak the truth. In my humble opinion, to speak the truth is a most natural act of the brain and to lie is an artificial intelligent activity of the brain. Linking it back to when my niece asked me what truth is, I should have explained to her that the truth is nothing but the facts as they take place. A person has an inborn instinct to tell the truth. The legal thinkers knew it and therefore, the courts appreciate it and function on this unique and innate quality of a human being. The whole concept of justice has a footing of the truth. Though we all know that morality and law are distinct notions yet justice and law have a common foundation of truth. The value of speaking the truth is so inherently involved in the human psychology that we always teach our kids to speak the truth. We don’t teach them to lie! As they enter childhood observing the adults they gradually learn to lie.
3. I remember three stories of elephants. One story is about five blind persons describing an elephant. After touching parts of its body, each of the blind person describes the elephant in different ways such as a big pole (leg), a huge drum (stomach), a thin rope (tail), a huge tray (ear), or a sharp round shaped weapon (teeth). Each of them spoke the truth about what they felt or experienced. However, it was not the complete truth. It was not the totality. Does that mean that they did not touch the elephant? Of course they did ! They spoke the truth as they perceived it. It is the best story for a Judge to remember that a person may have witnessed something but he may not have grasped the complete situation. The Judge has to perceive the elephant from the description given by the five blind persons. This is finding of the truth. Thus the truth (a) + truth (b) + truth (c) + truth (d) = is equivalent to the whole truth. This is the meaning of whole truth.
4. The other story is of Great Shankara-charya who used to believe in the principle “Bramha satya ! Jagat mithya !” which means that the spirit is true and the world is false (unreal)(vain). Once an angry wild elephant started running in the crowded road of the city, killing the people around. The people started running. Great Shankaracharya also joined them. A passerby who saw Shankara-chayra running, said sarcastically “Bramha satya, Jagat mithya, Gajam-ch- miithya” (elephant is false) (unreal), then why are you running?” Then Shankaracharya with prompt intellect answered back “Gajam-ch-mithya, Palayanam-api- mithya”. It means that as the elephant is unreal, so was the running away. (The spirit is true or real. The world is false or unreal. So the elephant and running away also false). This is a spiritual angle to look at the truth.
5. In Kolhapur District, Kale is a small village. In that village there is a temple of Dharmaraj, the eldest brother of Pandavas. He was known for his virtuous behaviour and high moral qualities especially as an ardent protector of the truth. In the temple there are five steps and even today the villagers bring a witness or the accused to the temple and ask him to walk through all the five steps if he speaks the truth. They believe that he would be subjected to the wrath of the supernatural if he does not speak the truth. They trust that this is a power of truth. In today's corporate world, we come across complex issues of agreements; investments, liabilities , family and property disputes etc..The courts are busy in analyzing the complicated relationships. Everything has become very commercial and materialistic. Yet, in all the trial cases the same old custom of administering an oath is followed and is not outdated.
6. How can we forget the third story of Dharmaraj. When in the battlefield, Dronacharya heard a cry by the soldiers “Ashwathama died.” To verify this Dronacharya approached Dharmaraj with faith that he would never lie and always spoke the truth and asked him whether Ashwathama had died? Dharmaraj answered “Yes” loudly and then murmured “Don’t know, man or elephant”. (Naro va kunjaro wa). Ashwathama was the name of Dronacharya's son and also the name of an elephant. This story has guided me on some occasions while assessing evidence of a non-committal, hesitant star witness.
7. When I explore various ways to understand the meaning of truth and the relationship between oath and truth, I see various shades of the truth. Sometimes, I think that the truth is like lightning in the sky. Thereafter thunder is heard. Thus the thunder is an after effect of the truth (lightning). Silence may amount to consent in some cases, however, when it is about the truth, one has to speak. So in Courts truth is not silent it is vocal and heard. A Judge observes the body language, gestures and frowning, emotions on the face, expressions in the eyes etc. However, the witness ultimately has to utter the words under the oath to vindicate “Satya Mev Jayate”. When I came across the observations of Mr. Justice Krishna Ayyar in the case AIR 1978 SC 1091 : 1978 Cri LJ 766 (Indersingh and Anr. v. State (Delhi Administration) “ The truth suffers from infirmity when projected through human processes . Judicial quest for perfect proof often accounts for police presentation of full proof concoction. Why fake up ? Because the Court asks for manufacture to make truth look true. No, we must be realistic”. It made me to pause and think. Does a Judge hold the fixed notions of the truth and how it should look like ? Whether a Judge in search of truth stops when he comes across a familiar face of “his” truth ? Is it similar to the designs in kaleidoscope ? Whether the truth changes its face and appearance as angle is shifted. Roots, upbringing , environment , experience, imagination , sensitivity etc.and finally wisdom are the guiding marks for a Judge to know the truth.
8. Apart from the regular oath, in courts especially in villages, a special oath is also administered under Section 11 of the Oath’s Act. In Chedilal v. Jwalaprasad, Indian Law Reporter (Vol. XXXI) page No. 315, it is observed that :’

“Plaintiff in the suit, state that they can accept whatever evidence the defendant would give with Gange’s water in hand and defendants were with Ganges water in hand stated that the claim was false in as much as the amount due to the Plaintiff has been set off against large sum due to the defendant. It was held that the suit must be dismissed. Defendant having sworn in the manner prescribed.”

1. My father, late Pratap Narayan Behere, who was Ex. District Judge had told me that in small taluka places during Civil Suits, the Plaintiff or defendant used to ask the opposite party to swear by holding the tail of a cow and physically a cow was brought into the varandah of the Mangalore tiled courts to enable the party to be sworn in. The appreciation of such evidence was altogether a different issue . It is left to the wisdom and sensitivity of the Judge. In one rape trial before me, the defendant’s advocate at the end of his cross examination asked the prosecutrix to swear in the name of her younger brother and tell the court whether the accused had really raped her. The prosecutor naturally objected to this appeal on the ground that the witness was already under oath. However, I allowed the question after weighing all the possibilities in the mind. The girl without hesitation swore in the name of her younger brother and maintained her stand. I appreciated it as only one of the small circumstances adding to the credibility of the witness.
2. In the case of K.N. Singh v. Secretary, Association of Indian Universities and others, reported in AIR 1992 SC 1356 : 1992 AIR SCW 1346 has dealt with the effect of repeal of section 9 of Oaths' Act, 1873 by Oath's (Amendment) Act, 1969. Plaintiff has filed a suit for declaration that the resignation tendered by him was involuntary and had been extracted by fraud, coercion, threat and inducement. Plaintiff during the trial, filed an application under Section 151 of the Code of Civil Procedure that if two witnesses of the defendants take special oath in Gurudwara and Mandir, to the effect that the resignation of the Plaintiff was not extracted from him in duress, fraud or coercion, then that part of the plaint of the Plaintiff may be deemed to be dismissed as withdrawn. The Commissioner appointed by the Court administered special oath and the witnesses stated before the Commissioner that the resignation was voluntary and was not extracted as alleged. So the Court dismissed that part of the plaint as mentioned by the Plaintiff. The said order of the Court was further challenged by the Plaintiff. However, the Hon'ble Supreme Court held that the oath taken by the persons in pursuance of the offer given by the Plaintiff amounted to admission under section 20 of the Evidence Act and repeal of Section of Old Oath's Act by the New Oath's Act would not debar the parties from entering into an agreement.
3. Today, oath is not administered to the witness by keeping his hand on the religious books like “The Holy Quaran, “The Bhagwat Geeta” or “The Bible”. We see that only in the films. My knowledge and information is limited to the State of Maharashtra and State of Gujarat. In reality, the Indian Judges do not use the wigs or gavel like British Judges. Yet wigged Judges in the films silence the court by hammering the gavel. A senior interpreter in the City Civil Court, Mumbai, remembers the days when holy books were physically given to the witness at the time of administering the oath. That system was followed decade ago. He narrated an incident of one Mohameddin lady who was sworn in without touching the Holy Quaran turned hostile. The Judge noticed the same. He directed the interpreter to administer her oath again asking her to keep her hands on the holy Quaran. The interpreter again administered oath to the lady by asking her to keep her hand on the holy Quaran. Then the witness supported the prosecution. Such incidents reveal not only the importance of the oath but that the manner in which it is administered is also equally important.
4. We all know a bitter and naked truth that in the courts witnesses lie in the name of God and the prosecution is frustrated due to such hostile witnesses. In civil cases too, we do come across such things and a trial Judge experiences futility of oath and she feels defeated. It is a failure of our social and national morality/spirituality which leads to miscarriage of justice. Law of perjury in India is very weak and especially in criminal trials the Judge often comes across hostile witnesses. In number of cases the police investigation in our country is not up to the mark and sometimes is callous or dishonest , therefore, prosecution of hostile witness for perjury is a major dilemma before the Judge. However, it is a need of the time to make positive amendments in the Law of Perjury. Inspite of such a sordid and miserable side, justice in the trial court is still survived due to the witnesses who have the passion to speak the truth. A simple act of taking oath thus lifts one’s conscience to a higher pedestal. These religious books undoubtedly have their own impact on the mind of the witness.
5. This is an attempt to encapsulate my stray thoughts about oath and truth. I would like to quote a paragraph from the speech of Lord Dening while addressing the Members of the Bar at the Law Society in November, 1954 about “Putting principles into practice” as under :

“What is justice? That question has been asked by many men far wiser than you or I and no one has yet found a satisfactory answer. All I would suggest is that justice is not something you can see. It is not temporal but eternal. How does man know what is justice? It is not the product of his intellect but of his spirit. Religion concerns the spirit in man whereby he is able to recognize what is justice; whereas law is only the application, however, imperfectly, of justice in our everyday affairs. If religion perishes in the land, truth and justice will also. We have already strayed too far from the faith of our fathers. Let us return to it, for it is the only thing that can save us. “

1. Philosophers like Buddha, Aristotle , Plato , Tarski laid down different theories of the truth. They interpreted notions of “true and truth”. These theories like pragmatic, coherence, semantic or correspondence ,etc. open the corridors of analytical research to the students of philosophy and logic. However, in courts the truth is to be interpreted in terms of what common man understands , because he is the one who unfolds the evidence for the Judge in the continuous flow of delivery of justice. He need not understand the recipe as to how a Judge arrives at the truth, but common man senses the truth when the justice is delivered. The idea of justice differs from time to time, nation to nation , religion to religion, etc.. However, the truth is defined in simple term “what has happened and what is perceived ”. It is universal. Thus, I think relationship between the truth and the justice is very peculiar. Justice is contextual. Justice is a product of customs, norms, social and cultural traits established/ accepted behavioural patterns or beliefs in a particular society. Thus, justice is not universal but the truth is absolute and universal. It can be said that justice is how one deals with truth or it is an interpretative ability of social, economical and moral structure of that society. How can we forget Mahatma Gandhi’s experiments with truth. He has written that truth is as old as the hills. It is not only history, culture or religion but the conscience that compels a human being to speak the truth. Rather conscience is an outcome of the values which are preserved and nurtured by generations of the human race, may be with the help of a particular culture or religion.
2. Indian judiciary has chosen its motto Satya-meva-jayate. A practical advice is given in one Sanskrit proverb “Satyam Bruyat, Priyam Bruyat , Apriyam Satyam Na Bruyat” means “speak the truth, speak the sweet truth, however, do not speak the bitter truth”. Thus, an approach qualifies the truth and only speak practical truth, permissible in the world. However, in Courts, truth cannot be qualified. It should be pure truth and therefore, the truth is a pre-requisite of justice in Indian Judiciary and failure to prove the truth leads to injustice. So it is a perennial quest for truth.
3. History reveals that human civilization has always believed in symbols for their emotions,faith, expressions, etc.. It is a matter of make belief in the true sense. Yes, we can speak the truth without taking the oath. There is a school of thought that there should not be any religious formality or reference of God in the Courts. However, we have to understand the role of religion or belief played in the common man’s life. We have to apply it secularly. In the temple of justice the solemn act of taking oath builds up the bridge between him and his soul. Oath is also a kind of symbolic act . In the temple of justice , hence a witness stands in the box says-

“In the name of God I shall speak the truth and nothing but the truth.”

Author Name: Hon’ble Smt. Justice Mridula Bhatkar