PERJURY: HISTORICAL AND LEGAL BACKGROUND

Written by: Vaishnavi Jetti

The word ‘perjury’ is derived from the Latin word perjurium. ‘Perjurium’ was referred to as a sin but not as a public wrong. It was dealt with invoking God to bear witness to the truth of the statement where the speaker knew that the statement was false. Irrespective of the judicial proceedings, it could be committed anywhere. Roman law provided for an offense which was similar to the modern concept of perjury. A witness who had taken an oath in a judicial proceeding and then testified falsely or withheld the truth was upon conviction deported if he were a person of rank, or put to death if one of the common people.[1]Perjury is an obstacle to the judiciary and its conduct may damage the parties' most significant concerns before the court. The prosecutions for perjury are rare. Perjury by a jury was the only form of perjury which was punished by the common law until the 15th century.

Perjury in British India:[2]

In upholding the legitimacy of the judicial system in India, Perjury has a specific role to play. British concepts of perjury prevalence in India were ironically used as both a colonial excuse for destabilising and sustaining trust in the rule of law. British perjury concepts served to distract criticism from the colonial state's practical workings. Native perjury explains why it appears that the rule of law does nothing to impede progress. Perjury was a satisfactory administrative problem and, like other problems, received little scientific attention at this level. When the British Government relied on native informants, suspicion of deception was nearly certain.

The new regulation diminished the power of the Indian legal profession which was then in its infancy, having begun to be regulated by law only in 1793. This innovation also placed the problem of perjury in India on a substantially different footing than in England. In England, the absence of public prosecution system until the late 19th century referred that the responsibility for detecting and prosecuting perjury was entirely based on the opposing party’s counsel. In England, perjury was detected by counsel of the other side on a cross-examination. In India, by contrast, both perjury and prosecution were detected by the judge.

Effects of Perjury:[3]

Recognition of its effects was a key component in the development of perjury as a crime. For centuries, perjury has been characterized as an offense against the effective administration of justice. The offense depends on at least two levels:

• First level, perjury interferes with the particular judicial dispute between individuals;

• Second level, it impedes the effective administration of the judicial system as a whole;

• A possible third level is the moral level, since giving a false statement offends the moral value of mankind.

This was the original conception of perjury and modern courts have sometimes alluded to it while dealing with the offense. By injecting false testimony into the case, perjury interferes in the particular argument between two parties. Thus, it may unjustly enrich one party while unfairly depriving the other. By diminishing the respect, perjury also tarnishes the integrity of the judicial system as a whole. Courts also require respect in order to reach the goal of ascertaining the truth in a particular case.

Perjury interferes with the function of the jury in a trial. If one of the objectives is to determine the truth by submitting the facts to a jury, then perjury hinders the jury by submitting false evidence to achieve the goal. In determining the truth of conflicting evidence at a trial, the jury has no simple formula of weights and measures upon which to rely. The jury must depend on the credibility of the witnesses and the trustworthiness of the testimony. It obstructs the jury in determining the truth and may result in incorrect findings and decisions.

The perjury as a potential disruptive of the legal system can not only be evident in court judgments but also in the numbers of cases for the prevention of prejudice in which an oath is given.

To prevent the spread of perjury to other situations, there is also a difference in the offense of giving a false statement. The distinction between the offenses is to be subject to a criminal conviction for perjury, the perjurious statement must be given under oath and before a competent tribunal.

Reasons for the failure to enforce perjury statutes:[4]

• Most commentators relate the very technical nature of the offence to the absence of charges and convictions for perjury. They highlight challenges with drafting indictments, with the proof that alleged false testimony which is relevant and the strict rules for evidence.

• The technical nature of perjury indictments prevents simple prosecutions. This theory compares perjury indictments with the indictments for other offenses and concludes that the difference in the forms of the indictments explains the difference in rates of prosecutions.

• The absence of perjury indictments is the difficulty in proving materiality of the false statement. In order to constitute perjury, a false statement must be material to an issue or point of inquiry. Materiality of the false statement must be alleged in the indictment and must be in order to convict.

In both civil and criminal cases, prosecutors may consider the individuals, interests and issues involved and choose nonenforcement of perjury statutes. Essentially, this involves a balancing test in which the benefits of a strict enforcement policy are weighed against the detriments of nonenforcements. The relative nonenforcement of perjury statues in civil cases may result from the attitude of some prosecutors and judges that the judicial machinery shouldn’t be expanded on civil actions where only a few individuals are involved. Prosecutors might have to devote a substantial amount of their limited time and resources in investigating the civil case and alleged false statement even before they decide to indict one of the parties.

In criminal trials, there may be a sense of frustration due to which the frequency of perjury that prevents prosecutors from filing charges in the case in which perjury occurs. Most prosecutors are faced with a multitude of different duties so that it will not be possible to examine every case for possible perjury. Further, prosecutors may accept that the defendants are expected to do anything possible, even to avoid conviction they themselves involve in perjury.

As in civil cases, the decision to prosecute for perjury after a criminal trial involves a balancing of the damage which the perjury caused and the benefit of a conviction for false testimony. Prosecutors may believe that in particular case the perjury resulted in only negligible damage since the defendant was convicted of the major offense alleged by the prosecution. Later proceedings for perjury may only be a collateral for the overall question of the case. In addition, the burden of another trial on the judicial system may outweigh the benefit of convicting the defendant of another crime. Economies of judicial administration may overweigh the benefit of the additional sentence which a perjury conviction may impose. Yet, it may be argued that administrative inconvenience should not prevent prosecution of perjury in a particular civil or criminal case. The first and most obvious reason is that perjuries should be punished for their offense. Secondly, a strict enforcement policy and the perception of this policy by the public may act as a deterrent to future perjury.

Perjury Laws in India

1. Section 191of the Indian Penal Code[5]explains that giving false evidence which means that a person who is bounded by oath or express provision of law, to tell the truth but makes a false statement or a statement which he believes to be false or doesn't believe to be true. False evidence or statement from a person may or may not be in written form. Under the English Perjury Act 1911, perjury also refers to section 191. Perjury is all about providing false evidence.

For the implementation of Section 191, the three basic conditions are:

• A legal obligation to state the truth,

• Making of a false statement or declaration,

• Belief in its falsity.

• Essential Ingredients of False Evidence False evidence made by a person who is:

• Bound by oath, or

• By an express provision of law, or

• A declaration which a person is bound by law to make on any subject, and

• By which the statement or declaration is false and which he either knows or believes to be false or does not believe it to be true.

Perjury has been kept at the position of criminal form under English Law of Perjury because a person is at the guilt by the statutory obligation of crime if lawfully sworn as a witness or as an interpreter in a judicial proceeding where he lawfully makes a statement material in that proceeding which is known to be false or does not believe it to be true.

2. Section 8 of the Oath Act[6] It describes it as an obligation to tell the truth.

Infringement of oath is a prerequisite. An express requirement to tell the truth under the Indian law needs the declaration against oath/declaration

Legally Bound by Oath:

• A Person is legally bound by oath if;

a) A Person should be bound by oath.

b) By an express provision of law to state the truth.

c) Or bound by law to make a declaration.

• Legal obligation to speak the truth in view of the oath administered.

• Express Provision of law which binds him to speak the truth.

• Irregularity of oath administration - Some irregularities exist in oath administration by officials, e.g. oaths are not correctly signed or procedural irregularities are found.

3. Section 192 of the Indian Penal Code[7]defines fabricating false evidence. Whoever causes circumstances to exist or makes false entries in a book or record, or makes electronic records or documents containing a false statement intended to make such circumstances and false entries or false statements in proceedings before a civil servant as such or before an arbitrator, or in proceedings taken in law, and which such a person may appear in evidence before an arbitrator.

4. Section 195 of the Indian Penal Code[8]deals with giving or fabricating false evidence with an intention/knowledge for an offence punishable with imprisonment for seven years or more or life imprisonment. He will be penalised as if someone convicted of the offense is punishable.

The false statement is a statement or declaration, under English Law, made in a judicial procedure falsely, but under Indian law false evidence is a declaration when a public servant is also classifiable as Perjury.

5. Section 195A of Indian Penal Code[9] is added by Amendment Act, 2006. The conduct must threaten another person with an injury to his person, to his reputation, to his property or to his or her personality or reputation of family, friends. The accused should have the goal of providing false evidence. Punishment will either be imprisonment of either description for a term which can also extend to seven years or with fine or both.

Conclusion

It is undenied by courts, prosecutors, and commentators that perjury is a frequent and substantial threat to the effective administration of justice. The offense prevents a fair and proper trial in the particular proceeding and interferes in the overall administration of the judicial system. Thus, the remedy to the problem of perjury in the courts may be the simple one of developing in a sterner sentiment which presently exists. If prosecutors and judges truly believe the perjury is a threat to the judicial system, then they should take positive steps to prevent its occurrence.

[1]Northwestern University Pritzker School of Law, “Perjury: The Forgotten Offense” The Journal of Criminal Law and Criminology 362 (1974). [2]Wendie Ellen Schneider, Engines of Truth 105 (Yale University Press). [3]Supra note 1 at 363. [4]Supra note 1 at 364. [5] Sec 191 of Indian Penal Code. [6] Sec 8 of the Oath Act. [7] Sec 192 of Indian Penal Code. [8] Sec 195 of Indian Penal Code. [9] Sec 195A of Indian Penal Code.