On Oath taking in Indian courts | religious inscription atop the Supreme Court building

From: The Telegraph, 2 January 2011

A myth about Gita in court
- Witnesses in India no longer take oath by holy book
SAMANWAYA RAUTRAY

New Delhi, Jan. 1: The Bhagvad Gita may have been at the centre of a court case in Russia but the holy book has long ceased to be part of judicial proceedings in the land of its conception.

In India, courts have done away with the practice of having witnesses take oath by the Gita or any other sacred text before giving evidence, contrary to what is depicted in movies.

“That’s all Bollywood,” says lawyer Santosh Paul who began his practice in Bombay High Court before shifting to Delhi High Court. “I haven’t seen this happening in my lifetime.”

A Siberian court had last week rejected a petition to ban a commentary on the Gita in the Russian Federation. In India, there was a time when witnesses did have to swear by the sacred book of his or her religion. It was supposed to make them speak nothing but the whole truth.

The practice had later formalised into a system in the Mughal era, with Hindus swearing by the holy water of the Ganga or the Bhagvad Gita, and Muslims by the Quran.

The tradition continued well into the British era as India’s colonial rulers were cautious about disrupting established traditions. “It’s an old, imperial thing. It was assumed that a person who swore by the Gita or the Quran would speak the truth,” senior advocate Rajeev Dhavan said.

But that ended in 1840, when the imperial rulers tried to introduce a more uniform system of taking oath in the name of God.

A law was enacted to abolish these forms of oath in trial courts and enabled Hindus and Muslims to give evidence on “solemn affirmation”. This act was extended in 1863 to the high courts. The Indian Oaths Act, 1873, consolidated this position.

Some imperial-era courts, such as Bombay High Court, however, had rules that permitted non-Hindus and non-Muslims to take oath by their own religious books till 1957.

A Christian had to swear by the New Testament, a Jew by the Hebrew Testament and a Parsi by the open Zend-Avesta with his shoes on. A Hindu or a Muslim could just solemnly affirm their statements in the presence of Almighty God.

This practice of non-Hindus and non-Muslims swearing by the religious books of their religion, however, ended in 1969. After the Law Commission, in its 28th report, suggested a revamp in the Indian Oaths Act, 1873, a law was passed introducing a uniform system of taking oath all over the country.

Under the 1969 law, which is still in force, witnesses can swear by a universal god without referring in any way to any particular religious denomination.

“I do swear in the name of God/solemnly affirm that what I shall state shall be the truth, the whole truth and nothing but the truth,” was the format prescribed.

No child under 12 needed to take such an oath. The only possible remnant of the Gita now in Indian courts is a Sanskrit inscription atop the Supreme Court building inaugurated in 1952.

It says “Yato Dharmahstato Jayah”, which loosely translated means victory lies with those on the side of dharma, the lines attributed to Gandhari in the Mahabharata.

In the epic, Duryodhana and her other sons were so desperate to win the war against the Pandavas that they sought Gandhari’s blessings on every single day of the 18-day war.

But Gandhari was careful to hedge her blessings with: “Let victory lie with dharma.” The Pandavas won the war.

“Now, inside courts, the Constitution is the only holy book,” a senior lawyer said.