What did you say?

In the Jessica Lall case, the Delhi High Court has sou motu taken cognizance of the police/prosecution theory on 8216;8216;hostile witnesses8217;8217;.

Both cases are demonstrative of the fact that India is finally gearing up to strictly enforce laws relating to perjury and false witness, which could go a long way in deciding future criminal cases. This is because a person8217;s statement on oath, testimony, and/or in sworn affidavit is regarded as the truth8212;unless the contrary is established8212;and vital evidence on which judicial decisions are based.

Wheels of Justice
THE high rate of acquittals in criminal cases in India is mainly due to witnesses turning hostile. The criminality of 8216;8216;buying8217;8217; of witnesses by influential accused can be handled only by strictly enforcing the penal law on perjury. Now the allegation that Zaheera took money to retract her statement is open to judicial scrutiny.

Though Zaheera is not the lone example of perjury8212;in a majority of cases in Indian courts, false evidence or retraction of statements result in acquittal of the accused8212;the conviction has made it the most-discussed case in the country. As a judge put it, if all courts started taking action against falsehood, perjury cases would outnumber all other kinds of cases.

Under Section 191, the Indian Penal Code defines perjury as 8216;8216;giving false evidence8217;8217;. By interpretation, it includes retracted statements, as the person is presumed to have given a false statement at some point. But hardly anyone, including legal experts, can recall a single case before Best Bakery and the Jessica murder case in which a person was prosecuted for making a false statement before the court.

Under Section 191 of the IPC, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable by upto seven years8217; imprisonment.

However, action against making a false statement should be initiated during the trial itself and not after it has concluded. This may serve as a deterrent to persons who intentionally mislead the court or make false statements under oath or file tainted affidavits much against the public good and fair trial. Late initiation of action often causes perjury cases to go completely unnoticed; it becomes one more case dragging on for years.

Comparative Law
IN the US, perjury laws apply to all material statements or information provided under oath to 8216;8216;a competent tribunal, officer, or person, in any case in which a law of the United States authorises an oath to be administered.8217;8217;

The Indian position is similar: Section 191 IPC is clear that 8216;8216;whoever, being legally bound by an oath8217;8217; makes a statement which is false can be said to have given false evidence. But in application, it lies with the prosecution, which is not as effective in India as in the US.

Unlike in the US, which distinguishes perjury in three categories, in India perjury may be a statement, material and/or any other form of evidence.

In the UK, the Select Committee of the House of Commons has issued a detailed guide for written and oral evidence. Most witnesses give evidence to one of the Select Committees related to Government Departments, established under Standing Order No. 152, unlike in India, where witness accounts are first given to the police and then thrown open to cross-examination before the trial judge or magistrate. This is the juncture where many witnesses say that their previous statement, made before the police, was under duress.

Strong Words
FURTHER, in the UK, when a Committee has chosen an inquiry, it normally issues a press notice outlining the main themes of inquiry and inviting interested parties to submit written evidence. The Committee may also identify possible witnesses and issue specific invitations to them to submit written evidence. The Indian courts often fail to do this: identify 8216;8216;possible8217;8217; witnesses and issue specific notices to them.

The House gives almost all Select Committees the power to send for 8216;8216;persons, papers and records8217;8217;. They thus have powers to insist upon the attendance of witnesses and the production of papers and other material. All witnesses, even those a Committee expects to invite for oral evidence, are encouraged to submit written evidence lately, an e-mail attachment; this not only makes oral hearings more productive, but also means that if witnesses are not called to give oral evidence a Committee still has the benefit of their views.

If witnesses wish the whole, or part, of their evidence to be confidential, they can state this in their covering letter but it8217;s upto the Committee to accede to the request.

All written evidence which the Committee decides to publish is protected by absolute privilege, in accordance with the provisions of the Parliamentary Papers Act 1840. Committees also always take evidence in public, usually in the presence of the press. But witnesses have a privacy clause they can exercise.

Perjury is a crime because a witness swears or affirms to tell the truth and, for the credibility of the court, witness testimony must be relied on as being truthful. The rules for perjury also apply when a person has made a statement under penalty of perjury, even if the person has not been sworn or affirmed as a witness before an appropriate official.

For example: The US income tax returns, which, by law, must be signed as true and correct under penalty of perjury. Federal tax law provides criminal penalties of up to three years in prison for violation of the tax return perjury statute. In general, federal law provides for a prison sentence of up to five years.

Will of Law
IN some countries, such as France, suspects cannot be heard under oath and thus do not commit perjury, whatever they say during their trial.

In India, use of false material, and inconsistent declarations also fall under the category of 8216;perjury8217;. While Zaheera8217;s conviction was triggered by her inconsistent declarations and retractions, in the Jessica Lall case, the two-weapon theory could constitute false material.

Both the cases have underscored the need for using the existing law against perjury in all criminal trials. As Justice V N Khare, former Chief Justice of India put it, 8216;8216;If there is will, the country could be zero crime zone.8217;8217;

ALSO IN THE DOCK
Lirsquo;l Kim
The American rapper was found guilty of lying about her friendsrsquo; involvement in a shooting outside a Manhattan studio in March last year. Video footage went against her court statement. Kim is currently serving a year and a day in prison.
Jeffrey Archer
Best-selling novelist and sometime MP, he was sentenced to four years in prison in 2001 after it was proved in the British courts that he had fabricated an alibi in a 1987 libel case against a newspaper that alleged he had had sex with an Irish prostitute.
Jonathan Aitken
Minister of State for Defence Procurement in John Majorrsquo;s cabinet, he was sentenced to 18 months in prison in 1999 after the Guardian newspaper proved that his claim that he as against an Arab arms-dealer had paid for a stay at the Ritz, Paris, could not be true.
Alger Hiss
An official with the US State Department, he was accused of transmitting confidential papers to the Russians in 1948. Since he could not be tried for espionage under an US statute, he was tried and indicted for two counts of perjury. He was sentenced to five years in prison and served 44 months.

Among other celebrities who were accused but not convicted of perjury: former US President Bill Clinton, former advisor to George W Bush Lewis Libby and baseball star Rafael Palmeiro