Affidavit

What is ‘Affidavit’

An affidavit is a sworn statement of facts made by someone who is aware that certain facts and circumstances have occurred. The one who signs and makes such a declaration is called as a deponent. An affidavit is a written document that the deponent signs attesting to the accuracy and truthfulness of its contents to the best of his knowledge and attesting to the fact that he has withheld nothing material therefrom.

The following are the essential features of an affidavit:

1. An affidavit must be in writing.
2. It needs to be a declaration by the deponent.
3. The facts mentioned in an affidavit must be true to the best knowledge of the deponent.
4. In order to make it valid, it needs to be sworn in under oath before an authorized officer or magistrate.
5. An affidavit is never made on behalf of some other person.

Official Definition of ‘Affidavit’

‘Affidavit’ as defined in legislation(s)

Section 3(3) of the General Clauses Act, 1897 defines an affidavit as including any affirmation and declaration made by a person allowed by law to affirm or declare instead of swearing.

In the Code of Civil Procedure, affidavit means not the oath or affirmation itself but the document which is on oath or affirmation.

‘Affidavit’ as defined in official government report(s)

The Law Commission of India, in its 16th report, criticised the General Clauses Act’s definition of affidavit as an inaccurate one. This was because the definition seemed to equate ‘affidavit’ and ‘oath’, as even ‘oath’ under Section 3(37) of the Act. The LCI thus recommended changing its definition to: “a statement in writing purporting to be a statement of facts, signed by the person making it and confirmed by him by oath”.

‘Affidavit’ as defined in case law(s)

The Supreme Court in the case of M Veerbhadra Rao v Tek Chand defined an affidavit as a sworn statement in writing made especially under oath or on affirmation before an authorized Magistrate or officer. It further held that the essential ingredients of an affidavit are (1) the statements or declarations made by the deponent relevant to the subject matter and to add sanctity to it, (2) he swears or affirms the truth of the statements made in the presence of a person who in law is authorized either to administer an oath or to accept the affirmation.

Legal provision(s) relating to ‘Affidavit’

Section 139 of the Civil Procedure Code, 1908, provides that oath on an affidavit can be administered by (a) any court or Magistrate, (aa) any notary, (b) any officer or other person appointed by a High Court or, (c) any officer appointed by any other court which the State government has empowered in this behalf. Further, Order XIX deals with affidavits.

Rule 1 provides that courts have the power to order any fact to be proved by affidavit and allow the reading of an affidavit as evidence during a hearing, provided it's reasonable. However, if a party genuinely wants to cross-examine a witness and the witness can be produced, the court will not authorize the evidence by affidavit.

Rule 2 provides that evidence may be given by affidavit on any application, but either party can request the court to order the deponent's attendance for cross-examination. The attendance will be in court unless the deponent is exempt from personal appearance or the court directs otherwise.

Rule 3 provides that affidavits must contain facts within the deponent's knowledge, except on interlocutory applications where statements of belief are admitted if the grounds are stated. Costs for affidavits filed with unnecessary hearsay, argumentative matter, or document extracts shall be charged to the party filing the same unless directed otherwise by the court.

Order IX of the Supreme Court Rules, 2013 is also relevant. It allows the Court to order that any particular fact or facts may be proved by affidavit. This means that the Court can, for sufficient reason, permit the affidavit of any witness to be read at the hearing, under conditions it deems reasonable. This provision is designed to streamline the process of fact-finding in legal proceedings by allowing certain facts to be established through written statements sworn to be true by the signatories, thus potentially saving time during court hearings.

Anyone filing a false affidavit can be punished under Section 193 of the Indian Penal Code which provides for punishment for anyone intentionally giving or creating false evidence in any judicial proceeding or in other case. Similarly, under Section 177 of the IPC if anyone who is required to provide information to a public servant and knowingly provides false information, they can be penalized. So, there is a punishment for persons providing false non-judicial affidavits.

Types of ‘Affidavit’

There are two types of affidavits. Judicial and non-judicial.

Judicial Affidavit

Judicial affidavits are written on judicial paper and appropriately stamped with court fees. Judicial affidavits need to be presented for various purposes, including but not limited to proof and application support. A judicial affidavit requires the Oath Commissioner's attestation to be declared valid.

Non Judicial Affidavit

Affidavits that are not legally binding are written on non-judicial stamp paper. They are commonly utilized in administrative or business contexts. To be regarded as valid, the affidavit must be attested by a Notary Public who holds a valid license. The notary must sign the attestation with both his seal and a notary stamp, and it shall be registered in the Notarial Registration Book.

International Variations

United Kingdom: In the UK, an affidavit is a formal written statement setting out the facts of a case for use as evidence in legal proceedings. There is a prescribed general form of affidavit. The form needs to be sworn on oath or affirmed. An affirmation means a non-religious statement that has the same legal effect as an oath sworn on a religious text. A solicitor, notary, commissioner for oaths (for a charge), or an authorized court employee may swear or affirm the affidavit.

One will be required to pay a fee if the affidavit is related to High Court proceedings and is sworn or affirmed by a court officer. Only affidavits pertaining to court proceedings may be sworn or affirmed by court employees.

Australia: In the Federal Court of Australia Act 1976, there is no explicit definition available for affidavits. They are akin to evidence presented in written sworn statements outside of courts. The evidence is presented through affidavits in court proceedings, not just by submitting them, but by verbally presenting them to the court. An affidavit submitted to the court doesn't become officially part of the proceedings until it's read aloud in court, as established in the case of Manson v Ponninghaus [1911] VLR 239. As per reading of Section 47 of Federal Court of Australia Act, in civil proceedings other than trials, testimony is provided through affidavits or as directed by the Court. During civil trials, proof may be given by affidavit for certain matters, with the Court having discretion to allow affidavit evidence based on justice's interests, and parties may cross-examine affidavit makers if desired.

United States: An affidavit is a sworn statement made outside of court, typically before a notary or court official, asserting certain facts as true to the best of the person's knowledge. Both plaintiff/prosecution and defense witnesses usually provide affidavits in preparation for a trial. If a witness's testimony contradicts their affidavit, the affidavit can be used to challenge their credibility under Federal Rule of Evidence 607. So, the affidavit can be used as evidence unlike in India where the affidavit is not admissible as evidence until a law specifically permits the same. Such impeachment could result in perjury charges if the contradiction was knowingly and intentionally made on a significant matter.

Research that engages with ‘Affidavit’

Reforming Public Service Delivery Systems in India: Rationalization of Affidavits: Affidavits burden citizens with costs including stamp paper, deed writers, and notary fees, despite lacking legal sanctity. In Punjab alone, it's projected that around half of the households submit affidavits each year for various services. Expanding this estimation to India, the total could exceed 200 million citizens or affidavits. With an assumed cost of Rs. 400 per affidavit (inclusive of wages, stamps, fees, and charges), citizens' expenses in India could reach approximately Rs. 8,000 crores. Affidavits, therefore, need to be replaced by Self-Declarations for all services in the public utilities/agencies.

Present position in Punjab: The State Government accepted the PGRC recommendations to replace affidavits with self-declarations for administrative purposes. Around 50 services, including administrative and utility-related ones, have transitioned to this new process. Affidavits are now only necessary for specific matters like obtaining arms licenses, vehicle transactions, and vital certificates. The impact of this change is evident in the statistics: in 2009-10, affidavits comprised 65.60% of services at District Suwidha Centres, but from April 2012 to March 2013, this dropped to 9.81%. This shift has led to improved service delivery and a fourfold increase in services rendered by these centers.