Look at a world where the assumptions are: All lawyers lie; auditors fudge accounts; civil contractors use substandard materials; corporate hospitals loot; doctors are negligent; politicians plunder; shopkeepers cheat. The boast however is, ’Only I am different. I do not do any wrong but others do.’ If we must limit our analysis to what pervades our courts in our search for truth and justice, we will come by a shocking revelation that very few believe truth is attainable. The judicial system is not engineered to securing truth at all times. The provisions for reviews before the same court and appeals and revisions in higher forums are attempts to substitute what the first court found as true or just to something of what you believe to be true or just. If the appellate court reverses the judgment on a question of fact, it, in effect, finds error in what the lower court found as true. If a further appeal restores the first court's finding, it means that the 1st appellate court has not properly appreciated the facts. What makes these quick reversals possible and how do we minimise them? What are the courts tasked with, is it to find truth and nothing but truth or truth by preponderance of probabilities or true beyond reasonable doubt? Even a person not legally trained will know that these expressions are not synonymous. Policy makers have set different goals for different types of proceedings through systems of law and evidence. We will examine now why there are different standards of proof and how do we acquire skills to get only at the truth and nothing but truth.
Truth is absolute; standards of proof are not
Truth is absolute. Honesty and integrity which are but its by-products are also absolute. If there is a component of untruth even to the minutest degree, it ceases to be true. We cannot measure the concept in relative terms. The human behaviour that brings conflicts are on account of disparate underlying interests and varying positions that we take and they are not necessarily on account of dialectics of what is true and untrue. What comes to a head in litigations are the assumed positions of what are right and wrong as perceived by the respective parties. The tussle between rights and wrongs in all their permutations, (such as right v right, right v wrong, wrong v right and wrong v wrong,) play themselves out in every litigation. The process of proving a right or wrong may however surely involve proving what is true. The standards of proof are set by law as a matter of policy or what the society accepts as just. While there cannot be different scales of truth, there could be assessment of how close to truth the incident sought to be proved is. You keep pushing the notch up towards absolute truth depending on the predetermined scale of what is feasible to obtain. At the lowest rung, where a civil liability for the effect of what is perceived as wrong is strict, the standard proof is minimal. Where there is liability for an act which is perceived as heinous, and the punishment ought, according to moral standards of society, stringent, there shall be exacting standards of proof.
Nature of liability determines standard of proof, three broad approaches
Strict liability situations
In all matters where liability is strict and where the person suffers a harm is more vulnerable or the person whose operations involve inherent risks that expose a large body of persons to physical or mental harm, the requirement of proof of events is minimal. Welfare legislation intended to relieve persons of economic deprivation cast strict liability on the person for whose benefit the victim was engaged in the action in the first place or whose operations caused the injury. The defendant may not be a wrong doer at all but made liable all the same. A passenger in a railway train who suffers an injury or meets with death in an 'untoward incident', a workman who suffers an injury in the work place during or in the course of employment, a person who is harmed by a chemical manufactured by a person whose trade is regulated by law by requirements of licensing are all compensated without raising a question of whether there was any negligence or wrong committed by the person. The Railways Act 1989 that compensates the injured victim or the deceased passenger expressly states through S 124 and 124A of the Railways Act that in any action for relief against the railway administration, it shall not be necessary to prove the negligence of the railways for the act that resulted in personal harm. Under the Employees' Compensation Act 1923, a workman who suffers a fatal injury in the course of or out of employment, notwithstanding that the employee did not observe the standards of safety laid down by the employer make the latter liable in term of section 3 of the Act. Here, it is the relationship of employee-employer that is fulcral to imposition of liability. Public Liability Insurance Act 1991 also makes the liability norm strict for victims of injury by the operations of the owner whose industry is notified under the Act. In all these cases, there are minimal requirements of proof of factual situations, such as bringing a nexus between the accident and injury. If there is any doubt, in a given set of circumstances, there shall be invariably presumption drawn in favour of the victim. The enquiry into the fact of the matter is under played.
Therefore, if in a railway incident of a fall from train results in injury or death, it is immaterial that the death arose by a fall while boarding a train or while de-boarding it. Again, if there is a dispute whether he was a passenger with a ticket or not and if there is a minimal prospect of a loss of ticket in the manner of how the accident took place, possession of a ticket and lawful authority for travel will be presumed. Under the Employees' Compensation Act 1923, if an employee was in the course of duty as a driver of vehicle suffered a heart attack, the presumption will be that the death was on account of pressures of work and in the course of employment. If a member of public suffers skin irritation by the chemical substance manufactured by an industry, even the causation will be presumed unless proof is adduced that the infection cannot be caused by such a chemical. In all these above examples, the fact that is required to be proved is presumed, the liability to prove negligence of the defendant is dispensed with and the truth is taken as self evident. A situation that speaks for itself may arise in any situation of strict liability that is referred to above or by the given set of circumstances, even if there is a higher standard of proof necessary such as when the negligence of the defendant has to be established, For example, the vehicle which had caused the accident had admittedly a brake failure or when the driver of a vehicle drove against a pedestrian was walking on the kerb or the vehicle involved was driven by a person that did not have a licence to drive. In all these situations, the fact that is required to be established shall be taken as res ipsa loquitur.
Proof by preponderance of probability
Push the notch a little higher from situations where there are no presumptions drawn and the plaintiff who seeks for a relief in a civil court shall have to bring evidence regarding circumstances and conduct of parties that comport with the inference probablising the existence of the fact. For instance, In a dispute relating to property where there are rival claims under two wills of the same person by two parties pitted as plaintiff and defendant, the court that finds both wills to be true may find nothing false about the case of the plaintiff or the defendant but if the will of the defendant is later in point of time to the plaintiff's, the defendant's will shall prevail. However, if the court finds that one of the contesting parties knows that the will propounded by him was later modified or cancelled by a later will but still propounds the will as the last will, he has adduced false evidence. The same shall be the conclusion if the court finds that one of the wills was not executed by the person whose property is the subject of bequest. The normal disposition of the court is decree or dismissal depending on which of the wills propounded by the parties is accepted or rejected. The court sifts evidence and the opinions swing from one to another, when it weighs the probabilities of whose version among the two carries more weight for coming to a particular conclusion. The court may have its moments of prevarication but it picks the side that seems more plausible. Truth is not discarded but even if not self evident, the court believes something to be true on preponderance of probabilities.
Proof beyond reasonable doubt
In criminal cases, the standard of proof is high because, if the offence which a person charged with is proved, it will, in most cases, result in loss of personal liberty by confinement in prison which is perceived as more stringent than a liability that a person suffers by payment of damages or fine. The presumption of innocence is to ensure that the prosecuting agency shall always prove the guilt of the accused with no doubt lurking in the mind of the court that the accused alone had committed the offence. The focus suddenly is not proving a set of facts by positive evidence but creating doubts about the facts proved. The defence need not disclose its own defence, though in some cases, they are attempted to be done. It is sufficient that the case as presented by the prosecution is doubtful in some key aspects, such as say, the presence of witnesses produced at the place of occurrence to be eligible to be cited as a witness in the first place, the time of occurrence, the prior enmity of the witnesses to the accused, etc. The existence of doubts themselves shall lead to the benefit of doubt to the given to the accused. Here the truth is not unravelled. Doubts dominate to cloud the perception and the court gives up truth as not possible to be elicited with certainty.
Court's responses to the situations
If the court finds the witnesses on the one side have not spoken the truth, it says so on appreciation of the quality of the witness’ version and records a finding that it does not believe the version of the witness. This belief is not at all times on objective factors, when there are no documents to contradict a version. If the witness says that he saw a particular incident and it turns out that there is documentary proof against such version where he was proved through photographs that he was in some other place, there was hotel booking in his name, there was airline booking showing the time of arrival in that city, then the preponderance of probability is against the version that he saw the event. In the same set of circumstances brought before court, each one of the documentary pieces of evidence could be proved to be false and fabricated. Or if there were no documents but a merely a version by another that he had seen him in another place, we have one version against another; oath vs oath, as it is said. It is anybody's guess how the judge will decide. Documentary evidence is invariably stronger only because, manufacturing a false document is more difficult than uttering a lie. Spoken word has less value than the written instrument. The assumption always is that a person could be lying under oath but there are less chances that he manufactures a false document and puts it across as genuine evidence. The standards of proof in civil and criminal cases vary because, the outcome in both the types of cases are also different; the way that the cases are presented are different. The nature of reliefs are different. The tools of investigation are however the same. The Evidence Act allows the same procedure for letting in evidence. Witnesses are brought to state on oath truth and nothing but truth. The effect of untruth as far as the witness is concerned is the same in that perjury knows no distinction between civil or criminal cases.
Tools for arriving at truth
Casting the burden of proof
In all civil matters, the manner of how the trial process pans out is well structured by the Code of Civil Procedure which will declare how the issues are required to be framed. Summoning witnesses follows soon after the issues are settled depending on how the burden of proof is cast. In the criminal cases, framing of charge brings a focus at the trial on what is required to be proved and nature of burden of proof shall depend on some statutory presumptions.
The Evidence Act places the burden on the person who wants a judgment on the existence of certain fact or on proof of certain right of plaintiff or certain liability of defendant (s 101). Unlike the onus, the burden never shifts. Its relevance in its judicial context is that it lets you know how to pilot the trial; It helps determine issues of rebuttal; lays down rules as to how the issue shall be framed as regards civil case; how charge sheet has to be framed in a criminal case; helps in appreciation of evidence; prescribes tests for identifying on whom the burden rests by raising the right questions; lets you decide the necessity of proving the existence of certain facts; makes inferences from certain relationships and raises certain presumptions in law that guide the test, where but for such presumptions, the burden would be differently cast.
In the manner of raising presumptions, sections 79 to 85 B of the Evidence Act lay down certain rules: In matters of proof of certain documents, the expression used is 'shall presume'. Certified copy of a document issued by Registering officer, for instance, shall be presumed to be true to the original. Gazette copy shall be presumed to be correct. A person accused of certain offences under Ss 121 A,122 & 123 IPC, where the presence of the accused in disturbed area is proved, court shall presume the commission of offence. Dowry death under s 113B shall be presumed, if the death has occurred within 7 years of marriage. Absence of consent in cases of charge against sexual offence shall be presumed. In the category of cases where the presumption may be presumed, a 30 year old document under s 90 may be presumed to be duly executed and attested; Electronic records more than 5 years old may be presumed to be genuine. Abetment to suicide under s 113A may be presumed if the attempt was within 7 years of marriage. All of s 114 presumptions come within category of ‘may presume’. For instance, presumption as to official acts to have been duly done; presumption of certified copy (s 79); record of evidence in judicial proceeding (s 80); gazette notification; maps; legal decisions and reports; POA duly notarised or attested by Magistrate or consul are other situations when presumption may be raised. The presumptions are not universal. It may change from country to country and from time to time. A situation that carried no presumption may change to a case when there shall be a presumption that is dictated by peculiar circumstances, to secure certain results, such as the recurrent instances of sexual violence that set a presumption of lack of consent of woman for sex whenever there is a complaint of sexual violence by a woman by a change in law. Here, the truth of situations are to be trashed to what the statute presumes. It is the predominance of what the statute wants to achieve by putting an end to sexual violence by making the fact as established that is important. If the complaint is of a woman in custody, evidence regarding the woman willingly having sex with a person in authority as impermissible, even if true.
Even apart from presumptions as an issue for matters of evidence under the Evidence Act, there are some special enactments that set different rules of presumptions and intervene in the normal understanding of burden of proof. TADA s 5 (possession of arms in notified area that it is for terrorist activity); IT Act, s 278E (presumption of criminal intent); NDPS Act (s 35); PC Act Ss 4, 20; Customs Act 138A; NI Act s139; IPC s 80 proviso (general exception); CrPC 200 (a) (bona fides of complaint of govt servant); Specific Relief Act s 10 expln (i) (sp performance of contract to sell immovable ppty); HAMA s 16 ( validity of adoption registered); TP Act s 3 expln II (effect of person in possession); General Clauses Act s 27 (presumption regarding postal service); NI Act s 118 (presumption regarding consideration); State enactments providing for presumption regarding transport from controlled area/ market/ mandi (UP Krishi Utpadan Mandi Adhiniym, AP (Agri produce & livestock) Markets Act, 1966; Manipur Food grains Dealers Licensing Order s 3 (presumption regarding storage of more than 100 maunds of food grains as intended for sale). All these have relevance for the quality of evidence that has to be brought to court, when statutory prescriptions overrule any inference to the contrary.
Cross examination by on or on behalf of party as witness
The art of cross-examination is the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness. While the predominant purpose shall be to secure the truth and call the bluff of the witness of what he asserts, sometimes, even if truth of the version is not successfully tested to the contrary, cross examination may fetch something favourable in answer by way of admission. There could be some statement that could weaken the opponent's case. The outstanding example of how truth was brought to light by the sheer brilliance of cross examination is the defamation case initiated by Oscar Wilde when he caused the prosecution to be launched against Lord Queenberry and how the revelations in the effective cross examination by Carson became the basis for successful prosecution against Oscar Wilde that drove him to incarceration, penury and death. The excerpts are available (http://www.famous-trials.com/wilde/330-libel) and they are truly a lesson of the kind of preparation that is necessary to get at the truth. Such skill that could be acquired only by closely following trials by eminent persons, by arduous study and contemplation. In India, it is a dying art not because there is lack of talent but because continuous examination of witnesses has become a rarity. Conclusion of trials takes a long time and when cases are adjourned as part heard, there is a long gap before the next date is fixed for continuation. The continuity is lost and with it also the spontaneity that is so essential for effective cross examination. The proliferation of writ jurisdictions in the High Courts, where cases are decided only the basis of documents leave no scope for cross examination and if the courts find that the factual details would require a trial court approach, they may also relegate them to civil courts for full fledged adjudication. However, this process is seldom resorted to and the cases meander to further forums upwards with half baked truths and poorly drawn affidavits. Gradually the most potent tool of bringing out truth in courts is slowly losing ground.
Further factors that dilute the prospect to secure truth
Fundamental right against self incrimination
It is a constitutional guarantee as a fundamental right under Art 20(3) that “No person accused of any offence shall be compelled to be a witness against himself.” This principle is espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means “No man is bound to accuse himself”. It makes possible an accused to remain silent without fear of inviting adverse inference. The law has changed in USA, Australia, Canada, UK and China. Apprehending that India may be tempted to go the same way, the Law Commission took suo motu notice and presented its 180th Report pleading for its retention on the ground that the right is otherwise also guaranteed under Art 21 of the Constitution and under sections 161(2) 312(3) and 315 of the Code of Criminal Procedure. It is a brazen reality that we live in a country where the custodial violence is rampant and the police machinery has still not come of age with technical expertise to interrogate without adopting third degree methods. A day when the police is itself not seen as an oppressive authority but a friendly person in uniform to assure safety to citizens, a confession to the police may obtain probative value but however compulsive the retention of this right is, it cannot be denied that if even a truthful statement has no value, it diminishes the effect of voluntary disclosure of a truthful statement and robs the chance for atonement. Even a confession to the magistrate could be retracted and in any event, when the accused comes into contact with legal counsel, chances of persisting with truth become remote.
Privileged communications cannot be used as evidence
The Evidence Act gives several situations that prevent certain persons from being cited as witnesses, even if they might know the truth. They could not be administered oath and compelled to stand testimony to reveal truth. Communication during coverture of one spouse to another is barred under s 122. Similar privilege is also extended to professional like a legal practitioner to disclose any communication made to him in the course and for the purpose of his engagement as counsel. Only a communication made in furtherance of illegal purpose or commission of offence in the course of his retention as a counsel which was directly observed by him do not enjoy immunity. If you see the attorney as the alter ego of the accused, this protection shall be seen as the necessary corollary for the right against self incrimination that is constitutionally protected.
Even apart from situations where a professional cannot be compelled to be a witness against his client in respect of communications, the legal fraternity feels itself not obliged to deny a brief on ethical ground that it shall not be party to falsehood. The justification at all times is ‘I only act as an agent for a client; sounding his surrogate voice and if he tells a lie, it is not my fault'. The ground could also be ‘I am bound to do what will secure to my client the best results, that is why I am engaged. I do not need to preach morals to him. Nobody prevents the judge from finding what is true. If the civil court judge finds the case false, he dismisses the case. If the criminal court judge finds the case to be false, he acquits the accused. My role ends where the judgement is pronounced'. They cite the Bar Council of India Rules of Conduct and Etiquette, where under Section II it states: “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.” No lawyer refers to the latter part of the Rule that allows a lawyer to deny the brief if there are special circumstances. There is no reason to suppose that a false case of the party and assessed as such by the lawyer himself should still claim that there is at all times a moral duty to represent his client even if he knew that the case is false. Why is it difficult to deny oneself the engagement by characterising the falsity of the case of his party to be a special circumstance to refuse to represent him, or his vow to preserve the purity of his practice shall not be sullied by a false version in court? What worth is the practice if the lawyer will wear blinkers and suffer a handicap that he places himself to elicit the truth or otherwise of the person who seeks his counsel?
Richard Dawkins, one of the most influential contemporary scientists observes, “A barrister who uses eloquence to make the best case he can, even if he doesn’t believe it, even if he selects favourable facts and slants the evidence, would be admired and rewarded for his success.” (Science in the soul',(Bentham Press) (2017). He recalls the incident when he was once talking to a barrister, a young woman of high ideals specialising in criminal law defence. She expressed satisfaction that a private investigator whom she had employed had found evidence exonerating her client, who was accused of murder. Dawkins congratulated her and asked the obvious question, what would she have done if he had found evidence proving unequivocally that her client was guilty. Without hesitation she said that she would have quietly suppressed the evidence. She said, “Let the prosecution find their own evidence.” If they failed, it was not her fault.
In all this, across the globe, we have reduced courts to be institutions where anything could be stated with impunity that has little semblance to truth. There is no incentive for any party to speak the truth. The very tools of extracting truth are not sharp enough to dig deep to unravel it. We need different tools, different formulations. By litigation, let us understand that it shall be through truth; it shall be for upholding justice. There is enough work for all the lawyers even if they stick to these ethical principles. It is wrong to assume that in order to be prosperous we need to generate false cases. The resolve must begin at the formative years even while readying oneself to be a lawyer.
Duty of lawyers
If our commitment to truth in human interactions is genuine, we need to believe that courts shall not be the places where any falsity is stated with impunity. A person who says for false prestige that he will fight up to Supreme Court knows that he has scumbag lawyers who will fight for him even worthless cases with no merit. He has no fear that a counsel will refuse his brief even if the case is brazenly false. He has no fear that the court will proceed against him for perjury even if the court finds his evidence to be false. He is confident that costs will not be imposed on him even if the case were to be dismissed, for dismissal with both parties to bear their own costs at appellate courts is the norm. Endless appeals and revisions up to Supreme Court for all matters are a bane and a clear invitation to try all the judicial tiers and abuse the judicial process. Unless the lawyers see themselves as torchbearers of justice and ethically vow to uphold only truth and not file false cases, the misuse by litigants cannot abate. It is impossible to make the whole population virtuous and practitioners of truth, but is it too much to ask of the practitioners of law, who are a small percentage of the entire population that they must abjure false and frivolous cases?