The High Court of Jammu & Kashmir and Ladakh has held that affidavits filed in judicial proceedings are not procedural formalities but sworn statements that take the place of oral evidence in writ adjudication. The Court emphasised that constitutional courts are duty-bound to examine not only the contents of affidavits but also whether the oath or affirmation has been administered by a person legally authorised to do so.
The issue arose in a writ petition where the Deputy Commissioner, Kathua was directed to file an affidavit clarifying whether delineation of water bodies had been carried out. On examination of the Affidavit it reflected that it had been attested by a Naib Tehsildar described as Executive Magistrate First Class and Personal Assistant to the Deputy Commissioner.
This discrepancy led the Court to examine whether the document placed before it could be treated as an affidavit in law. Justice Rahul Bharti observed that writ courts act on sworn pleadings as substitutes for evidence and that any defect in the administration of oath directly affects the legitimacy of judicial proceedings. The Court clarified that such scrutiny is not dependent on objections raised by parties but flows from the Court’s own constitutional responsibility.
Reiterating settled law, the Court held that an affidavit is a declaration of facts sworn on oath or affirmation before a person authorised by law and is required only where factual assertions are made. Once facts are sworn, the deponent is legally bound to state the truth and is exposed to consequences in the event of falsehood. An affidavit, the Court observed, therefore carries an evidentiary character and cannot be reduced to a mere formality.
In a detailed examination of the statutory scheme, the Court traced the law governing affidavits from the Indian Oaths Act, 1873 to the Oaths Act, 1969, holding that the latter constitutes a complete code governing the administration of oaths and affirmations. The Court noted that the statute draws a clear and deliberate distinction between affidavits used in judicial proceedings and affidavits meant for non-judicial purposes.
The Court held that affidavits filed in judicial proceedings may be sworn only before a Court, Judge, Magistrate, a duly appointed Oath Commissioner, or a Notary Public, subject to lawful empowerment. Affidavits for non-judicial purposes, it held, require express authorisation by the State Government. It was further clarified that proceedings under Article 226 of the Constitution are judicial proceedings in the strict sense and therefore require strict compliance with statutory mandates.
Clarifying the position regarding Executive Magistrates, the Court held that while Executive Magistrates are competent to administer oaths for judicial affidavits, such authority cannot be presumed. The power to function as an Executive Magistrate must be traceable to a valid government order. The Court specifically observed that a designation mentioned in the attestation clause, without proof of lawful conferment, does not satisfy statutory requirements.
Applying this principle, the Court noted that no material had been placed on record to show that the Naib Tehsildar who attested the affidavit had been vested with executive magisterial powers. Executive authority, the Court held, flows only from express statutory or governmental conferment and not from administrative designation, convenience, or proximity to the deponent.
The Court also examined the propriety of affidavits being attested by officers functioning directly under the deponent. It observed that affidavits filed on behalf of the State must be attested by authorities whose competence is beyond doubt, particularly when such affidavits are relied upon by constitutional courts for adjudication.
Addressing prevailing administrative practices, the Court cautioned against mechanical or stamp-based attestations. It held that administration of oath is a conscious legal act requiring personal application of mind and satisfaction that the deponent has sworn to the contents of the affidavit. Any departure from this requirement undermines the legal character of the affidavit.
The Court reiterated that affidavits sworn before an incompetent authority or lacking proper attestation are not defective affidavits capable of correction but are liable to be treated as non-existent in law. Such affidavits, the Court held, cannot be relied upon by courts and must be ignored altogether.
Taking note of a systemic issue, the Court observed that the absence of State-appointed Oath Commissioners for non-judicial affidavits in the Union Territories of Jammu & Kashmir and Ladakh results in Judicial Magistrates being burdened with routine attestations unrelated to adjudicatory functions. The Law Secretaries of both Union Territory of Jammu and Kashmir and Union Territory of Ladakh were directed to examine the issue and place a status report on record.
