This documents / evidence subject is very vast in its nature but I would limit my focus only to the subject of “Affidavits” aspect.
India has inherited a common law adversarial system of Courts from the British Colonial regime. It is a system wherein parties argue their side of the case and judicial / quasi-judicial officers (In Tax Matters) determine the issues and adjudicate the same on the basis of relevant laws, rules and precedents. The framework, so designed provides safeguard against injustice in the form of appeals, reviews and revisions as per the hierarchy of the courts (Tribunals, Appellate Authorities in case of Tax matters).
At the time of arguments, parties to the case will have to produce proper documentary evidences in support of the case. Now there are so many types of documents, depends upon case to case basis, required to be submitted before the authorities. In this article I am going to discuss one of them i.e. “Affidavit”. The document namely “Affidavit” is playing a vital role in any judiciary, especially in Indian judiciary at large. Now in this article we are discussing all about Affidavits which are drafted and submitted with various civil, criminal and taxation matters during the trial in court or before the quasi-judicial authority.
Definition of the term “Affidavit”
As per general clauses Act the term “Affidavit” defines as, the document that includes affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
This is a voluntary statement and it includes a person’s declaration in writing that is signed by the deponent (A person who is making the affidavit) and it is to be accompanied by an oath (vis-à-vis the authenticity of the contents). In Latin, terms “Affidavit” means to “pledge ones faith”.
It is necessary that the “Affidavit” is taken to be sort of a written court testimony. Another way to think of an affidavit is as a sort of written court testimony. While doing an Affidavit, in a court of law, you are required to place your hand on a Holy Book and swear that you’re telling the truth and nothing but the truth, similarly on an affidavit, you do this in writing. You’re under oath, but you’re testimony is on paper. They are important in a way that the oral submission/evidence/testimony is only admissible before a judge but an affidavit can be used as an alternative to this.
In law, an affidavit is a written statement of facts by someone who has sworn to tell the truth, signed in the presence of a notary public or other legal authority (vis-à-vis the genuineness of the affiants signature or his identity is to be checked by the Notary Public or legal authority), and can be used as evidence in the courts.
In India Section 139, Order XIX of the Code of Civil Procedure and order XI of the Supreme Court Rules are the laws that govern “Affidavits”. The importance of affidavit has been upheld by the courts in many instances.
Matters to which affidavits shall be confined.
Under Rule 5 of Order XI of the Supreme Court Rules, it is stated that, “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.”
Contents of an Affidavit: (How to write an Affidavit?)
Affidavit is a legal document and hence there is a right way to write an affidavit. Affidavits can be completed by any person and it must be notarized before they are considered valid. As per my contention it is a basic six steps process which everyone may (strictly) follow while writing any “Affidavit”. Those are as follows.
1] Title of the Affidavit
2] Statement of Identity
3] Statement of truth
4] Statement of facts (stick to the facts which are already enumerated anywhere in the other documents) (Every fact should be clearly and chronologically outlined)
5] Reiterate the statement of the truth
6] Sign before the Notary Public and get it Notarized from the Notary Public.
It is mandatory that, every person, making any affidavit, be described in such manner as it will help to identify him clearly, by stating his full name, his father’s name, his profession or trade, and the place of his residence(with full address).
It is also necessary that those statements that the affiant makes in the affidavit must be affirmed by the words “I affirm”.
The affidavit containing any statement of facts is to be divided into separate paragraphs which are serially numbered. Each paragraph shall refer to a distinct portion of the subject of the said affidavit.
When the affiant is not having sufficient knowledge of a fact himself but, he is informed about such fact by others, he must use the words “I am informed” and, he should add as “and verily that believe to be true”. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the affiant shall mention the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents.
You may follow following simple tips to make more effective Affidavits.
Keep legal language out of the affidavit as much as possible.
Keep the sentences short.
Keep the affidavit as short as possible.
Make sure that your thoughts are organized and they are in the proper order and clearly worded, if you are relating your actions in an event.
Do not use inflammatory language.
Leave any drama out of it; just state the plain and simple facts.
Proof read the affidavit for spelling errors and grammatical errors.
There are three elements which an affidavit must include to become official are as under:
1] The Written Oath where a person (the affiant) swears that the specific facts they wish to declare are true and correct to the best of his / her knowledge;
2] The Signature of the one making the written statement (the affiant) is must;
3] The Certification by a notary public or other qualified official stating that an oath affirming the truth of the statements in the affidavit was witnessed in person.
In 1910, Calcutta High Court in the case of Padmabati Dasi v. Rasik Lal Dhar  adhered strictly to Order XIX Rule 3 of the Code of Civil Procedure and laid down that every affidavit should clearly express how much is a statement of the affiant’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it will be correct to rely on such belief.
In another case, M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and other , this Court reiterated the afore mentioned principle and held that under Order XIX, Rule 3 of the Code of Civil Procedure it was mandatory for the affiant to disclose the nature and source of his knowledge and information with sufficient particulars. The Court also held that in a petition where allegations are not affirmed, as aforesaid, it cannot be regarded as supported by an affidavit as required by law.
Types of Affidavits
I believe that no one can restrict himself in any type of an Affidavit because there are lots of reasons where every Advocate has to draft an Affidavit in his day today’s practice for the client as per his requirements. Some of the most common examples are as follows.
Affidavit of name change
Affidavit of death
Affidavit of identity theft
Affidavit of age declaration
Affidavit of inheritance
Affidavit of residence
Child custody affidavit
Sworn statement affidavit
This is just scratching the surface of the different types of affidavits. The law is very complicated and there are dozens of other scenarios where you might be asked to draft/complete an affidavit for submission with various civil, criminal and taxation matters during the trial in court or before the quasi-judicial authority.
In Indian Law although an affidavit may be taken as proof of the facts stated therein, the Courts have no jurisdiction to admit evidence by way of affidavit. Affidavit is treated as “Evidence” within the meaning of Section 3 of the Evidence Act. However, it was held by the Supreme Court that an affidavit can be used as an evidence only if the Court so orders for sufficient reasons. Therefore an affidavit cannot ordinarily be used as evidence in absence of specific order of the Court.
Stamp duty required for Affidavits
There is a need to replace affidavits by Self-Declarations for all services in the public utilities/agencies. Affidavit is a declaration, and such, a declaration in itself is adequate for the purposes of law. Accordingly in Maharashtra, Vide Government Resolution, General Administration Department under reference dated 09 March 2015, it is necessary for that person to furnish a self-declaration on plain paper affixing his own photo stating his various facts as per the required Govt. work only. The forms for above mentioned “Self Declaration” and “Self Declaration for Self Attestation” will be as per pro forma “A” and pro forma “B” in the government Resolution under reference, General Administration Department, dated 09 March, 2015.
In any other cases stamp duty of Rs. 100/- (by way of non-judicial stamp paper) is required for Affidavits.
Formalization of an Affidavit
Every Affidavit should be a valid Affidavit. For an affidavit to be valid, it must be notarized. Since a notary is swearing that it is (affiant’s) your signature on the affidavit, the document must be signed in front of a notary. If the notary does not know you, he or she will ask to see your identification. The identification must be a valid form of photo identification such as a non-expired passport or driver’s license or PAN card or Aadhar or Govt. issued I Cards etc.
Consequences of False Affidavits
An affidavit is a written statement which the people making the statement solemnly affirmed (promised) is true. The solemn affirmation (promise) must be in the presence of a witness who is authorized by law to receive that affirmation (promise). The affidavit must be signed by both the person making the statement and the witness each in other presence. A person who makes promise is called an oath and secular alternative to an oath is called affirmation. The person who is signing the affidavit is called the affiant.
A false affidavit is one in which a person signs it and swears that the statements attested to in the document are true, complete and accurate are true, when such statements are in fact misleading or false. A person who files an affidavit has to show that he/she swore an oath before an officer of court or other Person. For e.g. If a plaintiff files a false affidavit even he/she knows that he/she was under oath when signing the affidavit. Then it is the responsibility of plaintiff to prove that statement contained in affidavit is true as per knowledge. Criminal proceeding may be initiated against guilty person by making an application u/s 340 Read with section 195 of CrPC 1973 before the criminal or civil court for giving false evidence.
Offences of perjury
When any person makes a false statement/false declaration in his pleading or files a false affidavit before the court of law or knowingly gives a false evidence to the court. It is a criminal offence u/s 191,193,195,199 of the Indian Penal Code, 1860 to make false affidavit in one’s pleadings or filing false affidavit or false document in evidence before the court of law. When false affidavit or false documents were given in any quasi-judicial or administrative proceedings, then a private complaint can be filed u/s 200 before competent magistrate. I am not going in section wise details of this Para for the sake of brevity of an article.
Affidavits impose their own cost on the citizens on buying stamp paper, locating a deed writer, payment to the Notary for attestation and of course, the time and efforts consumed in these processes. On the other hand, affidavits have no particular sanctity in law and the same function can be easily performed by declarations.
Attestation by the officials, thus, does not appear to be necessary. The affiant/signatory continues to be responsible for the statement made in the Affidavit. Government can impose penal liability for making wrong statements. Some of the Central Government agencies (passport, income tax etc.) have already adopted this practice.
Even though there are considerable provisions for the affidavits, there is still lack of awareness among general public about filing of Affidavits. There are so many Complaints against government institutions and departments demanding affidavits in spite of several instructions are issued from time to time by the Govt. Recently Hon’ble Prime Minister, Shri Narendra Modi has encouraged Government of taking self-declaration in lieu of Affidavits which goes on a long way to build trust between citizens and the government.