Report No. 28
19. Form of oath according to conscience.- In the case of Omychund v. Barker, (1744) 1 Atk 21: Willes 538: 1 Wills KB 84: 26 ER 15,1 Lord Hardwicke, L.C. observed-
"The next thing .................is the form of oath. It is laid down by all writers that the outward act is not essential to the oath All that is necessary appears in the present case; an external act was done to make it a corporal act.................. This falls in exactly with what Lord Stair, Puffendorf, etc., say that it has been the wisdom of all nations to administer such oaths, as are agreeable to the notion of the person taking, and does not at all affect the conscience of the person administering, nor does it in any respect adopt such religion."
1. see Cockle Cases and Statutes on Evidence, (1963), pp. 280-281.
20. According to Halsbury1-
"At common law, the form of the oath is immaterial, provided that it is binding on the witness's conscience, whether he is of the Christian religion or not."
In an American case2, Reynolds C.J. said:
"The pure principle of the common law is that oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences."
1. Halsbury Laws of England, (3rd Edn.), Vol. 15, p. 436.
2. Gill v. Caldwell, (1822) 1 Illinois 53, referred to by Wigmore Evidence, (1923), p. 862, para. 1818.
21. A suggestion has been made that in order that the oath shall bind the conscience of the people, it should be based on religion. In other words, the oath should be taken on the appropriate religious scripture. It appears that the practice adopted by Muhammadan judges before the advent of the British rule required that Muhammadans were to be sworn on the Quran and Hindus on the water of the Ganga1. This practice was, however, altered by section 5 of Act 5 of 1840, which was in the following terms:
"Whereas obstruction to justice and other inconveniences have arisen in consequence of persons of the Hindu and Muhammadan persuasion being compelled to swear by the water of the Ganges, or upon the Quran, or according to other forms which are repugnant to their consciences or feelings: It is hereby enacted, that except as hereinafter provided, instead of any oath or declaration now authorised or required by law, every individual of the classes aforesaid within the territories of the East India Company shall make an affirmation to the following effect:
"I solemnly affirm, in the presence of Almighty God, that what I shall state shall be the truth, the whole truth, and nothing but the truth."
1. See Q.E. v. Maru, 1888 ILR 10 All 207 (214) (Mahmood J.)
22. Thus, the practice of taking the oath upon a holy book or upon the water of Ganga was abandoned1 as far back as 1840. It is not likely to succeed if it is revived now. Since 1840, society has become more sophisticated. In our opinion, there should be a uniform form of oath which should apply to all persons alike.2Any person may, however, with the permission of the Court, swear an oath in any other form3-4.
1. Para. 21, supra.
2. App 1, Schedule.
3. App I, clause 6.
4. See para. 61, infra.
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