Report No. 28
28. Arguments in favour of special oaths.-One important argument in favour of the retention of the provisions with respect to special oaths is that the special oath is an institution of Iong standing; it was recognized in ancient Hindu texts and commentaries1; it was recognised in the Old Regulations2-3, it has been recognised in the Indian Oaths Act, 1873; and it is still in existence. An institution of such long standing, it is contended, should not, therefore, be abolished.
The argument is prima facie, attractive. But if it can be shown that special oaths-and particularly the binding and conclusive nature of the evidence given on special oaths-are intrinsically opposed to sound juristic principles, and, instead of subserving any common good, have an inherent tendency, having regard to the frailties of man, to do harm and mischief, then, the mere ancient origin of special oaths cannot be a strong ground for their retention.
1. Kane History of Dluirmashastras, (1946), Vol. 3, p. 357 bottom pp. 358-360.
2. Before the Indian Oaths Act, 1873 was passed, provisions regarding special oaths were contained in Madras Regulations No. 3 of 1802, No. 4 of 1816 and No. 6 of 1816, which were in force in certain parts of the country. Sub-section (3) of section 14 of Madras Regulation 4 of 1816 (so far as it related to special oaths) was in the following term:-
"If either party is willing to let the cause be settled by the path of another, the village rnunsif shall give his decision according to such oath."
3. The relevant portion of section 27 of Madras Regulation 6 of 1816 was as follows:-
"If either party agrees in writing to let the cause to be settled by the oath of the other, without appeal, the District Munsif shall give his decision according to such oath."
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