Delhi: “Truth and honesty are like some of those rich colours which we cannot now produce,” a local civil court judge in Bradford, England had poetically remarked in 1878 while bemoaning the prevalence of perjury in his courtroom.
Experts Article 14 spoke with say that perjury—the offence of lying on oath—is “very common” in India and fabrication of false evidence is “not uncommon”. Indian courts at all levels have raised concerns over it from time to time.
Because most legal processes rely on sworn testimony, the truthfulness of statements made under oath and evidence presented becomes integral to the process of ensuring a fair trial that doesn’t end with wrongful incarcerations or even convictions.
From lamenting the erosion of “value systems” of “Satya” (truth) and “Ahimsa” (non-violence) in Indian society to observing a “rampant use of fabricated evidence” in court proceedings, Indian courts have said it all. The Supreme Court of India went as far as to say that perjury has become a “way of life in the law courts”.
In 2001, the apex court called for “effective and stern action” to “prevent the evil of perjury”. It appealed to the courts to stop taking “evasive recourse” when proof of perjury exists on record and the Indian Penal Code (IPC) 1860 provisions to prosecute them exist.
“There’s no premium of honesty in our country,” said Rebecca John, a criminal defence lawyer and senior advocate at the Supreme Court of India to Article 14.
“So, therefore, it’s kind of understood everybody perjures,” said John.
Hamza Lakdawala, an advocate at the Bombay High Court, said that lying on oath, both during cross-examination as well as on affidavit, is “very common in India”.
“Indian litigants have a habit of improving/embellishing their case when they litigate,” said Lakdawala.
However, despite what experts Article 14 spoke with described as a “sufficient” law to keep a check on perjury and fabrication of false evidence, they are rarely invoked—even when courts find clear instances in cases before them.
A Complex Problem
As with all the five cases analysed in part one of this series, the courts failed to initiate prosecution for either or both the offences, despite them repeatedly finding tutored witnesses, engineered evidence, noting fabrication of evidence, and even suspecting the police of foul play and malicious prosecution. Not only is there no public data on perjury prosecutions, but anecdotal examples like these are also scarce.
Though courts call for effective action against perjury and fabrication of evidence from time to time, the Indian justice system is plagued by a myriad of challenges that have resulted in this situation where lying in courts comes without fear of repercussions.
Overburdened judges, a lack of incentive for lawyers, unreliable police investigations, long delays in the disposal of cases, and the difficulty to pin down “intent” to mislead the court have collectively given rise to a troubling state of impunity.
Urging caution, experts recommend a thoughtful approach to address this complex problem because of how overburdened the courts are, and because the State could weaponise it against ordinary citizens.
“I see the system from the inside. It is barely surviving. It’s not an easy task being a judge. Most of them are stretched,” said John. “So they all decide which types of cases should be prioritised, like bail matters, which I applaud.”
“However”, she added, “as a result, other high-priority matters also get pushed down”.
On 22 March this year, the Kerala High Court termed it “impractical” to prosecute every case of perjury—inadvertently admitting to the widespread prevalence of perjury in Indian courtrooms and the court’s helplessness.
“If in all such cases, proceedings for perjury are to be filed, not only will that open up floodgates of litigation, but it would also be an abuse of the process of the Court and the courts will not have time for any other matter apart from considering such issues,” a two-judge bench of Justices Alexander Thomas and C S Sudha said.
John said, "We can't say 'this at the cost of others'.
“The point is that the criminal justice system has collapsed,” she said. “We are just following the motions every day. What gets heard, gets heard.”
A Warning For The Road Ahead
John said the conversation about perjury should be “very guarded” because such prosecutions may become another tool in the hands of the state to selectively target individuals and not its own.
“The biggest litigant in India is the state. Now if you are going to weaponize these [perjury] provisions against the ordinary citizen and not take parallel action against state agencies who make false statements based on which people are incarcerated, then this is one more weapon in the hands of the system to use against an individual citizen,” she said.
If the law was unequally applied, John said that one set of falsehoods would be ignored to highlight another.
The Laws To Prosecute
Though the term ‘perjury’ itself not finding an explicit mention in the IPC, Chapter XI under this code deals with specific offences of “false evidence and offences against public justice”.
The IPC provides for a system wherein the punishment for perjury and fabrication of false evidence depends on the severity of it—an offender can be sentenced anywhere up to 3 years, 10 years, life imprisonment, or death penalty.
Although these offences may occur in both private disputes and cases involving the State, experts believe it is crucial to prioritise addressing the latter—given the state is the biggest litigant in courts—especially in criminal cases where the State’s officers are accused of the offence.
Wrongful incarcerations or convictions based on false testimonies or fabricated evidence given by the State breed systemic injustices, curtail individual liberties, and erode public trust in the justice system.
The state could also act against its own officers found perjuring in court either via administrative or departmental action for violation of service rules, or direct indictment through judicial or quasi-judicial inquiries, like, in encounter cases.
However, all these come with their own challenges—challenges a victim of wrongful prosecution may not want to take up after years of court battles and possible incarceration.
John, the criminal defence lawyer, calls for “zero tolerance by the courts against prosecuting agencies who make tall claims, based on little or no evidence and sometimes false evidence”.
“It’s for the courts to enforce it. If they don’t enforce it, it’s their problem.”
“Everybody Perjures”—An Old Habit
Historically, perjury was widespread in Indian society and the courts even before independence, under British colonial administration, were reeling under its pressure.
In her 2016 book titled ‘Engines of Truth: Producing Veracity in the Victorian Courtroom’, Wendie Ellen Schneider, a lawyer and academic specialising in British legal history in the United States, wrote that when the British gradually took over India’s criminal administration starting 1770s, they found “widespread perjury” in courts.
“Many imperialists have advanced the rule of law as one of the central rationales for colonial rule,” the author argued. Since false evidence brings into question the very legitimacy of a court order, and therefore, the rule of law, combatting perjury “became crucial to maintaining colonial rule for the British”.
So widespread was perjury in India, Schneider found, that “Justice in many cases had become a quixotic attempt to discern which of the parties was honest, not who had the better case.”
Though courts in pre-independence India attempted to nail perjury in most cases—for their own reasons—as Schneider found, such attempts in post-independence India are scarce.
John believes this is partly because perjury prosecutions are “not prioritised by Indian courts because it’s treated as one of the fallouts of a bad litigation”.
An Offence Against Public Justice
While the IPC defines perjury and fabrication of false evidence and their punishments, the Code of Criminal Procedure (CrPC) 1973 lays down the detailed procedure and rules for initiating and prosecuting these offences.
Section 195 of the CrPC prevents a court from taking cognizance of the two offences related to a court proceeding in any other court unless a written complaint is provided by that court, following the procedure under section 340 of CrPC, or if a superior court orders it to do so.
In other words, it is the court where the offence occurred that will be the complainant in such a case as they are an offence “against public justice”.
An affected party can also move an application alleging perjury or fabrication of false evidence before the court where it occurred.
To safeguard against unnecessary harassment of either party before the court, section 340 of the CrPC requires the judge, before whom the offence occurred, to first form an opinion that it is “expedient in the interests of justice” to conduct an inquiry into the offence.
A “preliminary inquiry” must then be conducted by the judge to determine whether a deliberate and conscious attempt to misguide the court and interfere with the administration of justice has taken place. The judge must record their findings in writing and sign the complaint themself or through their authorised officer.
Once done, the case proceeds as a complaint case. The court presiding over the case will call for records, sometimes the alleged offender, and determine directly if perjury occurred. They can also seek assistance from the police in cases where a deeper investigation is required.
Lack Of Enforcement And Overburdened Judges
Lakdawala said that though the law is “sufficient”, there is a need for it to be “better enforced”.
However, issues like mounting pendency—4.4 crores at lower courts, 60.6 lakhs in High Courts, and close to 70,000 in Supreme Court—deter judges from enforcing the law.
“Prosecutions are rare because the court refrains from adding another case to the long list of pending cases. So, the judges take a sympathetic view and let people off with a stern warning,” Lakdawala told Article 14.
Some offenders who are found to perjure in higher courts are also tried under the Contempt of Courts Act 1971—an easier process than the elaborate procedure outlined in the CrPC.
“Those who lie on affidavit before a High Court are often hauled up under contempt law. These proceedings usually end with an apology from the litigant being accepted and the case being closed,” he said.
John remembered a case in the Delhi High Court in which a litigant was able to show the court, through documents procured under the Right to Information Act, that a large number of witnesses relied upon by the Narcotics Control Bureau were fraudulent witnesses—they did not exist.
“People are incarcerated for a minimum of 10 years based on statements of non-existent witnesses in the chargesheets. That is fabrication for you. So why don’t courts come down heavily on prosecuting agencies ?”John said.
Misremembering Or Lying—Delay in Trial
Abhinav Sekhri, a criminal lawyer practising in Delhi, feels it is difficult for a court to clearly distinguish if a person is genuinely misremembering or lying when a case is delayed for years.
On average, a case takes six years to be disposed of in lower courts, an additional four years if it is appealed at a high court, and an additional three years if also appealed at the Supreme Court.
“How do you decide what is the truth in a system where evidence gets recorded 10 years later?” Sekhri told Article 14.
To illustrate this point, he gave an example of a witness who initially provided an accurate statement to the police after a crime took place. However, owing to the prolonged delay before the case finally reached trial, the same witness ended up delivering a contradictory or inconsistent testimony in court.
“What if the witness was stating the truth initially but on account of the delay in the trial, has genuinely forgotten details of the case? Or what if he is now stating the truth and his initial statement to the police was genuinely incorrect?” Sekhri said.
Such a situation will require the court to invest a substantial amount of time—a scarce resource in today’s justice system—in scrutinising the witness’s statements if it is to determine perjury.
“I believe the courts know this and therefore, save perjury action for the most egregious cases,” Sekhri said.
It is for this reason that the law requires a judge to first form an opinion that it is “expedient in the interests of justice” to actually prosecute someone for perjury or fabrication.
Little Incentive For Lawyers
While perjury may be a grave crime in the eyes of the law, pushing for perjury prosecutions has little incentive, not just for the court, but also for either of the parties before the court.
“As a defence lawyer, I do not have to go so far as to convince the court that someone is lying. The only threshold that I need to reach for my client to be acquitted is to convince the court that evidence is unreliable,” Sekhri said.
He states that proving a piece of evidence—witness testimonies and other materials—to be “unreliable” by pointing out contradictions and inconsistencies is a threshold that a lawyer can reach a lot easier than going the whole hog and proving a witness was lying.
“Apart from building pressure on the witness, a defence lawyer is not really getting anything out of sending anyone to jail for perjury. As long as the court is convinced that the evidence is unreliable, I still win for my client,” Sekhri said.
“There is really no skin in the game for the lawyers on both sides to push for a perjury petition.”
Police Investigating The Police
In all the five cases detailed in the first of this two-part series, authorities of the state, in this case, the police, and its witnesses were found to have misled the courts by giving false and fabricated evidence.
However, in none of these cases, the courts directed section 191 or 192 prosecutions, even though they made specific observations about possible perjury by the police and its witnesses and the fabrication of evidence.
In cases where a witness is coerced by the police to lie on oath, a perjury prosecution would still lie against the witness. It is only at the time when the perjury complaint is being prosecuted that the witness can claim a defence of coercion by the police.
The police may then be charged for abetment to perjury and sentenced according to the degree of perjury committed by the witness.
Some cases of perjury or fabrication of false evidence would require a deeper investigation to conclusively pinpoint the offender. This would mean that the magistrate would have to seek assistance from the police.
This becomes a particularly hard, unreliable, and sometimes futile exercise when it comes to ordering police to investigate the role of other police officers and their witnesses.
“Getting the police to investigate the police is an entire ball game altogether. In my professional experience so far, I have personally not yet seen a case (except encounter matters) where the state is facing prosecution for lying in court,” Sekhri remarked.
There are also cases in which the police may mould a witness statement to suit their case (here, here, here). A witness might be incentivised to give a statement that suits the police’s version and supports a different case altogether.
“So, sometimes, real false evidence starts at the level of investigation. Since the witness statements to the police are not on oath, they are not liable to perjury proceedings. What will the judge do? If perjury is based on inconsistency, how do you decide in such cases where the initial version may be inaccurate and not the current witness testimony in court?” Sekhri asked.
People Suffer
As a result, victims of wrongful prosecution, incarceration, or conviction by the state either do not press for perjury prosecution or in rare cases, go for other remedies, like suing the state via a civil suit for damages caused—an altogether tedious court battle, or by pressing criminal charges against the wrongdoer directly—a dangerous and draining process.
The third way is seeking compensation from the state by approaching Higher Courts—an uncertain path since there is no fixed rule that a victim will definitely be compensated by the court.
In August last year, the Supreme Court refused to entertain a Public Interest Litigation that prayed for the court to lay down guidelines to compensate people who suffer because of “wrongful and malicious prosecution”, noting that it would “complicate the matter”.
The court passed the responsibility to the government since it felt it was a policy decision within the realm of the government.
Even the Law Commission of India in its 277th report in 2018 recommended the government of India to legislate a special legal provision for adjudicating upon claims of wrongful prosecution and award compensation.
“There needs to be recompense for the years lost, for the social stigma, the mental, emotional, and physical harassment, and for the expenses incurred,” it said.
The government has not moved in that direction.
This is the second of a two-part series. You can read the first part here.
(Saurav Das is an independent investigative journalist and transparency activist based in New Delhi.)
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