During my 35 years of experience in litigation in various fields in many courts across India, I found that a substantial number of cases filed before the court or defended, are not based on truth and/or the whole truth. This is the reason why I would like to share my personal view to handle such kind of menace in the courts due to perjury and which has clogged the entire judicial system.
As on today, approximately 4.8 crore cases are pending before the Indian courts. The procedure for Perjury as existing in the statue books is complex in India and it is seldom used. Sadly, Indian Courts do not take serious actions against people who indulge in Perjury. The punishment for Perjury is less in India as compared to other developed countries like in the United State it is Fifteen Years (15). It is essential as of now to tackle the problem as early as possible and effectively because it affects adversely the very foundation of our Civil and Criminal Justice System.
On Dec 1, 1998, a high-profile committee was constituted in the United States of America to discuss the consequences of perjury and related crimes. The said committee comprised of Hon’ble Judges from the highest courts of US of various states, a bunch of high-profile senior counsels from the different Bars of US State also. Before the Committee started a detailed discussion on perjury, there were opening statements by various Hon’ble Judges and speakers which are as follows:
“There is nothing just or fair in a double standard. We make perjury, subornation of perjury, obstruction of justice, and witness tampering crimes because a judicial system can only succeed if its procedures expose the truth. If citizens are allowed to lie with impunity or encourage others to tell false stories or hide evidence, judges and juries cannot reach just results. At that point, the courtroom becomes an arena for artful liars and the jury a mere focus group choosing between alternative fictions.”
“So, for my friends who think that perjury, lying, and deceit are in some circumstances acceptable and undeserving of punishment, I respectfully disagree. Every citizen is entitled to her day in court, to have her claims considered under the rule of law and free from these abhorrent acts. That applies no matter how small or unpopular or unimportant that person is and no matter how great or popular or powerful her opponent is.”
“Lying poisons justice. If we are to defend justice and the rule of law, lying must have consequences. We will explore the impact of lying on the rule of law and the implications of the double standard from our distinguished panel, whom I am pleased to welcome.”
“One, honesty is the best policy, and necessary to the preservation of the rule of law. Two, there are adverse consequences if this principle is not adhered to. Three, when a failure to adhere to the principle of truth is admitted and the consequences are assumed, healing and restoration can occur.”
“We all make mistakes in life, but common frailty does not relieve us from our responsibility to uphold the rule of law. This Nation must never let any person or people undermine the rule of law. Without it, atrocities like slavery, genocide, potential nuclear and biological warfare and oppression are sure to rear their ugly heads once again. If liberty and justice for all does not reign, we, like great civilizations before us, will surely perish from the face of the Earth.”
Our Indian courts including the Hon’ble Supreme court have also shown their concern from time to time as to how perjury affects the administration of justice and makes it almost impossible to decide the cases within a specific time frame, simply for the reason that both sides in the court have no fear to lie in the court and its consequences.
I would like to quote Mahila Vinod Kumari v. State of Madhya Pradesh, (2008) 8 SCC 34 wherein it was observed as under:
“… The evil of perjury has assumed alarming proportions in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the Courts to use the provision more effectively and frequently, than it is presently done…”
It was also once observed by Lord Macaulay as the first Chairman of Law Commission of India in his report:-
Giving of false evidence must always be a grave offence. But few points in penal legislation seems to us clearer than that the law ought to make a distinction between that kind of false evidence which produces great evils and that kind of false evidence which produces comparatively slight evils…. As the ordinary punishment for false evidence, we propose imprisonment for a term of not more than seven years, nor less than one year…”
I would like to quote the observations by the Hon’ble Supreme Court of India in the case of Swaran Singh vs State of Punjab 1993 where the Hon’ble Court said:
“ if the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish state machinery.”
“Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and going back on his previous statements, yet he does not wish to punish him or even file a complaint against him. He is required to file the complaint himself which deters him from filing the complaint. Perhaps, law needs to amend clause (b) of Section 340 (b) of the CRPc in this respect as the High court can direct any officer to file a complaint. “
I can quote 100s of case laws across the country over a period of 50 years where the Hon’ble Judges of various High courts and supreme court have expressed their concern over the evil effects of perjury. I would like not like to get into the details as the entire material is already in public domain.
To my opinion, if we can amend Sec 340 of CrpC and Sec 195 IPC in a such manner that the condition to initiate action against a litigant who is indulging in perjury can be initiated only by the judicial officer in whose court the perjury has take place, is removed and is left open to the other party who is suffering because of perjury, to initiate action for perjury will help this country to reduce the burden of pending cases immensely and immediately. The provisions of Sections 340 of CrpC and Sec 195 IPC as existing in the statute books today are colonial law and are required to be amended? In fact, it should be the fundamental right of the suffering party to initiate action for perjury and he need not to have permission from the judicial officer. In almost all of the cases the Hon’ble judicial officers are reluctant to initiate an action for perjury against either of the party for various personal reasons. The above two sections require immediate amendment.
Apart from the above, I would also recommend the insertion of a new provision by which it should be made compulsory that on receipt of an application from a litigant, that the other side is raising frivolous pleas and lying before the court, an action for perjury should be taken. Such perjury applications must be taken up first before proceeding any further with the case and further it should be made mandatory to decide the same on the basis of evidence or trial limited to the allegation of perjury, within a period of 3 months. If the allegations of perjury are found true, the case of the other party who has indulged in perjury should be thrown out of the court and the party should face the consequences of perjury. In my opinion, when a plaint or written statement is based on vexatious and frivolous claims, and either of the parties raises this issue before the court by moving an application for perjury, if under the law is decided mandatorily within a period of 3 months, the pending cases of 4.3 crores would come down to less than 1 crore within a period of 3 years.
Today, people have no fear or respect for law and they make false statements in routine. But, the moment they come to know that if their case is found to be based on untruthful statements/ pleadings, and they may face punishment very soon, as quickly as within 4 months of filing a frivolous claim in any court of law, the pendency of cases in this country will fall down dramatically and people will be deterred from going to courts with frivolous cases or defenses.
Here I would also recommend for the insertion of another provision like Rule 11 Safe Harbor of the Unites States of America.
Rule 11 provides for a notice by the party who wishes to file an application for perjury to the other side, pointing out that their case lacked a good faith, and their pleadings are full of reckless statements which are not true and correct, thereby to give an opportunity to the other party to withdraw their pleadings within 21 days.
During my career spanning over 35 years, I have also noticed that there is a big, a very big circle of lawyers who come to the court with frivolous plaints and complaints from the side of the plaintiff or frivolous defenses. There must be a check on lawyers also.
Let me give a practical example here: When a client approaches a lawyer, say for to file a case for Domestic Violence against her husband after a period of fifteen years (15) and after hearing the full facts from the client lawyer comes to know that in fact no Domestic Violence has ever taken place. However, his client, the wife, wants to leave her husband for XYZ reasons and to extort money.
In the above situation lawyers drafts a petition in such a manner as if his client has been tortured for Fourteen Years (14) continuously and respondent husband and his all relatives including Father-in-Law and Mother-in-Law are immediately required to be sent to jail. Let’s pause here- what happens next in a court of Law everyone knows.
Now if in the above scenario the husband comes with an application of the Perjury and it is mandatorily decided with in a period of three months (3). The truth will come out and the wife in the witness box would not stand a chance even to prove one single averment made in her petition, drafted by her lawyer. Resultantly, she will be sent to jail and her case will be thrown out of the court.
Here, my point is, the lawyer who had the occasion to draft her petition should not be allowed to go scot-free.
There is a system in Austria, where if any person is found to be driving against the rules and committing offences like over speeding, drunken driving etc. his Driving License is punched for each violation. If the driving license is punched for the fourth time the offender cannot drive any kind of vehicle in Austria for the rest of his life.
Some rules like above instance should be introduced in India also to handle the unscrupulous lawyers. They should be given a certain number of opportunities throughout their career. Each time they are found to be guilty of coming to the court with false and frivolous pleadings, without testifying their varsity and evidentiary support, their Bar License should be punched. In my opinion there is nothing in the world which can’t be handled; it only needs the genuine will on the part of the government.
I would also like to draw the attention of this Committee to Rule 11(b) of the United States which provides that by presenting a pleading to a Court, an attorney certifies that, after conducting a reasonable enquiry, evidentiary support exists for the factual allegations pled in the case.
In India, we also require a law similar to the above.
If the above recommendations are accepted and inserted in our statue books, it will not only resolve the problem of pendency of litigation and but it shall be a strong indicator to the rest of the world that India has one of the strongest Judicial System in the world and can deliver a speedy Justice to everyone.