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Report No. 28

40. Freedom of contract considered.-But, then, it is contended that the freedom of choice of a person should not be interfered with. If a person out of his own free will offers himself to be bound by the testimony of his adversary, then the law should not stand in his way. The argument is specious, and does not stand close scrutiny. It may, for the sake of argument, be conceded that a man may, out of his free will, agree to settle his dispute in any way he likes, so long as he does not bring his dispute within the seisin and cognizance of the court. The moment he does so, he is bound by the rules which govern and regulate all judicial process.

Even in the compromise or adjustment of a suit, it is expressly required by the Code of Civil Procedure1 that it must be proved to the satisfaction of the court that the suit has been adjusted wholly or in part by a lawful agreement or compromise, and it is only after the court has been so satisfied that the court can pass a decree in accordance with such agreement or compromise and not otherwise. And what is a "lawful" agreement is to be determined by reference to the provisions of the Indian Contract Act, 1872, specially those contained in Chapter II (sections 10 to 30) of that Act.

But in the case of a decision of a dispute by special oath, the court is a passive spectator, and the statement of the adversary is given the character of conclusive evidence as against the other party. It is not desirable that the court should become a powerless and silent spectator and be constrained to accept the evidence sworn to on special oath as conclusive, whatever may be its own view on such evidence. The court cannot be made to abdicate its own judicial functions in this way.

1. Order 23, rule 3, Code of Civil Procedure, 1908.

41. Then, the so-called freedom of choice or agreement or will may turn out on ultimate analysis to be a complete negation of freedom, because the parties to a dispute may not be in a position of real equality. One may be a simple, illiterate gullible person having implicit faith in his adversary, specially when he is making a statement in the name of religion or God or in the presence of some religious symbol. The adversary, on the other hand, may be a cunning person or a person having no moral scruples or religious fear or qualms of conscience. He may not hesitate to utter a downright and deliberate falsehood or to perpetrate any other dishonest or corrupt act for the achievement of his selfish ends. To him, the touching of a copy of the Gita or the Quran or a pot of water of the Ganga may mean no more than touching a few pages of paper or a pot containing some liquid substance.

42. It may, perhaps, be safely asserted that, by and large, man has not reached that stage of moral stature or spiritual illumination wherefrom he does not hesitate at all to give up and forsake his self-interest for the sake of truth and dharrna. When that stage will be reached among mankind, the necessity for law as an instrument of social control will perhaps no more be. But, as long as that stage is not reached, courts and laws are necessary for the settlement of antagonistic jural relations among the members of the society. The oft-quoted saying of Sir Henry Maine, that the movement of society has been from status to contract1 no longer holds good in its entirety.

The law now steps in to regulate human relations at every stage, and does not allow them to be governed by agreements and free will, because it has been found by bitter experience that freedom of contract and will in many fields of human relations instead of sub-serving the ends of social justice, brings about glaring injustice and unfairness in relations between man and man. Therefore, the central point in a modem developed system of law, specially in systems based upon the Anglo-Saxon jurisprudence and common law is not will, but relation.

1. Maine Ancient Law (Pollock's Edn.), p. 182. See Graveson Movement from Status to Contract, (1941) 4 MLR 261.

43. The law is not so much concerned with the agreements and stipulations which brought a relation into existence, as with the legal rights, duties and obligations, involved in that relation. This relational aspect of the law was noted by Brett. J. in the well-known case of Heaven v. Pender, (1883) 11 QBD 503 as early as the eighties of the last century. He observed-

"The questions which we have to solve in this case are-what is the proper definition of the relation between two persons other than the relation established by the contract or fraud which imposes on the one of them a duty towards the other to observe, with regard to the person, or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property."

44. Reference may be made in this connection also to the well-known observations of Lord Atkin in the famous case of Donoghue v. Stevenson, 1932 AC 562 (579-584). We need not dilate on this point. A glance at the modern statute book of any country will provide innumerable instances of statutory relations which have supplanted purely contractual relations. The doctrine of laissez faire or naked individualism of the eighteenth or early nineteenth century, is a far cry from the social and juristic philosophy of the second half of the twentieth century. The moment a person appears before the court as a plaintiff and drags the other party before the court as a defendant, that very moment the two stand to each other in the relation of plaintiff and defendant, and the court becomes the arbiter of their disputes. The court is bound, therefore, to decide the dispute according to known and well-established rules of judicial procedure. After that relationship has been established, the decision of the dispute should not be left to the mere statement of the person taking the special oath.

45. Recommendation for omitting special oaths.-In view of the above considerations1, we recommend that the provisions contained in sections 8 to 12 of the Indian Oaths Act, 1873, should be omitted.

1. Paras. 26-44, supra.

46. Sections examined.-Having made these general observations, we now proceed to deal with the important points that seem to arise on a study of the various sections of the Act.

47. Preamble.-A suggestion has been made that the Preamble should be amended so as to bring forth the impact of the Act in the ethical sense, to emphasise the correct concept of the oath and the consequences flowing from false swearing, and to lay down a uniform system of oath. We do not think that it is necessary to amend the Preamble for this purpose, particularly when it is not the usual practice in modern Acts of Parliament to have a preamble1.

1. The Bill proposed (App 1) has no preamble.

Indian Oaths Act, 1873 Back

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