How Affidavit As A Procedural Tool Took The Spotlight In Pegasus Judgment

                                                                                        Supreme Court of India on 13 Sep. 2021^[1]

"If the Respondent-Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different."

                                                                                        Judgment in 'Manohar Lal Sharma v. Unionof India And Ors^[2].27 Oct. 2021]

"If you file an affidavit then we know where you stand"^[3], a more predicated response, in pursuance of truth – couldn't have come from the Chief Justice of India to the Solicitor General (SG). It is a memoriter, of a touchstone called "affidavit". This response was to the latter's submission in the month of September in 2021 before the Supreme Court Bench that the earlier "considered response" was a sufficient reply to the connected writ petitions on Pegasus. There is a sanctity and ethical character attributed to the thousands of affidavits filed in the courts of our country every day. With the Pegasus judgment [Manoharlal Sharma v. Union of India LL 2021 SC 600], where the Union Government raised apprehensions and did not file a second detailed affidavit, the spotlight has come to shine on this procedural legal tool- "affidavit".

For a brief mention on the Pegasus matter, these were a batch of Writ Petitions heard by the Supreme Court of India in 2021, in which the Respondent was Union of India (UoI). The petitions raised inaction on the part of Union Government where Pegasus- a spyware had infiltrated devices of private individuals in the country. They also raised added apprehension that "..certain agencies of the Respondent UoI are using the said software without following the due procedure established under law". In India any form of surveillance on citizens fall under The Telegraph Act, 1885 (concerning interception of telephone calls in view of a public emergency or public safety) and the Information Technology Act, 2000 (IT Act) (concerning Sec 69 allowing interception, monitoring and decryption of electronic data in the interest of sovereignty, integrity, defense, security, public order, precenting ant incitement to commission of any cognizable offence relating to these previous concerns and investigation of an offense). The Court significantly noted the burden itbrings upon the Court when a party as Union Government doesn't deny the averments specifically, especially in violations of fundamental rights of its citizens.

The Pegasus Judgment

Below is a paragraph-based approach, to help understand as to how an "affidavit" became the predicative procedural tool for the apex Court to hinge its decision on, in the Pegasus matter.

1.A "limited affidavit" filed by the Additional Secretary, Ministry of Electronics and Information Technology, Union of India was placed on record by the learned Solicitor General on 16^th August 2021 (Para 12)

2.Consequently, the judgment reads as follows (Para 13),

"On the next date of hearing on 17^th August, 2021, this Court indicated to the learned Solicitor General, issuing notice to Respondent-Union of India, that the limited affidavit filed by them was insufficient for the Court to come to any conclusion regarding the stand of the Respondent-Union of India, with respect to the allegations raised by the Petitioners."

The Court continued in the same paragraph on its willingness to grant further time for a more detailed affidavit.

"As the limited affidavit itself recorded that the detailed facts were not adverted due to a paucity of time, we indicated to the learned Solicitor General that we were willing to give them further time to enable the Respondent -Union of India to file a more detailed affidavit. The Learned Solicitor General indicated his apprehension that the disclosure of certain facts might affect the national security and defense of the nation."

3.The Court further provides that (Para 14) "…it was not interested in any information that may have a deleterious impact on the security of the country.", but that ".. the Respondent -Union of India could still place on record facts pertaining to the events highlighted by the petitioners, without disclosing information adjudged to be sensitive by the relevant authorities."

4.The Court records that (Para 17), "On 13^th Sep 2021, we were informed by the learned Solicitor General that placing the information sought by the Petitioners on affidavit would be detrimental to the security interests of the nation.". The SG further submitted "that such information could not be made matter of public debate as the same could be used by terror groups to hamper national security.

5.In the meanwhile, petitioners' counsels' responses to the non-submission of affidavit by the Respondent -Union of India were as follows:

            i. Senior Counsel appearing in WP© No.s 826 and 851 of 2021 submitted that the Respondent -UoI could have disclosed on the affidavit             action taken by the Govt, as "the then Minister of Law and Information Technology and Communication was had acknowledged the reports of             hacking in the Parliament."(Para 18)

            ii. Senior Counsel appearing in WP©No.849 of 2021 "relied on affidavits filed by two experts in the field of cyber security to buttress his             submission regarding the nature and function of the software ". The Court recorded also that the Counsel also pressed for the interim relief in             the same petition, "whereby a response was sought on affidavit from the Cabinet Secretary". (Para 19)

            iii. Senior Counsel in WP © No.853 of 2021 " …submitted that if the Respondent -Union of India had made a statement on affidavit that it had              not used a malware or spied on the Petitioners in an unauthorized manner, that would have been the end of the matter, Instead, the             Respondent- Union of India had not provided any information on affidavit."(Para 20)

 6.  The apex Court having heard the submissions, dealt with Right to Privacy (Para 27-36), the trade – off between right to privacy of an individual  and security interest of the State (Para 37), Privacy and Freedom of Press (Para 38), Protection of journalistic sources of information (Para 40        -41), Writ petitions particularly Public Interest Litigations based on newspaper reports (Para 42), petitions by individuals "who were purportedly  victims of the Pegasus spyware attack" (Para 44) etc.

7. The Court in Para 45 "re-emphasize" that the court had provided "ample opportunity to the Respondent -Union of India to clarify its stand        regarding allegations raised", "to provide information to assist the Court ….". The paragraph continues thus,

    "However, despite the repeated assurances and opportunities given, ultimately the Respondent-Union of India has placed on record      what they call a "limited affidavit", which does not shed any light on their stand or provide any clarity as to the facts of the matter at     hand. If the Respondent-Union of India had made their stand clear it would have been a different situation, and the burden on us would     have been different."

8.The apex Court further has extracted elaborately (Para 46) from Ram Jethmalani v. Union of India (2011), 8 SCC 1; on responsibilities of parties in placing all relevant information before the Court, the burden of protection of Fundamental Rights being the primary duty of the state where in such a case the State cannot be an adversary. Further the Court also referred to Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (Para 47) on the need for "free flow of information from Petitioner and State" – "an important step towards Governmental Transparency and openness, which are celebrated values under our Constitution..".

9.With regards to the non-filing of an affidavit, the Supreme Court makes a very strong observation holding the State to its responsibility to this Court of last resort yet again invoking the power of the affidavit, (Para 50)

"However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Respondent- Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect the national security concerns....The mere invocation of national security by the State does not render the Court a mute spectator."

10.The Court concluded that it has no option but to accept the prima facie case made out by the Petitioners and to examine the allegations made", as the "limited affidavit" "has only been only an omnibus and vague denial" and "cannot be sufficient"; in the absence of "specific denial" (which could have been placed before the Court through an affidavit),"...of any of the facts averred by the Petitioners" (Para 51)

11.Consequently the Court has recommended the setting up of an Expert Committee headed by a Judge under the Court's own supervision and with a specific terms of reference. The independence of judiciary yet again found assertion while it declined the plea of the Respondent Union of India to set up an Expert Committee, as the Court found the "compelling circumstances" weighed in included "allegations that the Union or State Governments are party to the rights' deprivations of the citizens'

What Is An Affidavit? What Makes It A Powerful Tool For The Courts?

'Affidavit'^[4] is a term or a document most are familiar with, notarized by government designated notaries for submission to government organizations, public institutions etc.; drawn up for various uses in public life by citizens. Affidavits also form an integral part of legal mechanism where the procedural law of the country- the Code of Civil Procedure (CPC) - enlists "affidavits" under Order 19. While the term per se is not defined in the Code, it is a "sworn statement in writing especially made under oath or on affirmation before an authorized office or Magistrate"^[5][M.Veerbhadra Rao v. Tek Chand AIR 1985 SC 28]. Essentially, it is a declaration made by a person, relating to facts; in writing, in first person, sworn or affirmed before a Magistrate or officer of authority. A person filing an affidavit is called an "affiant".

Order 19, Code of Civil Procedure (CPC), 1903 And Order 11, Supreme Court Rules, 2013

Order 19 of the CPC (1903) and Order 11 of Supreme Court Rules, 2013 deal with affidavits. The courts require affidavits to accompany various applications/ complaints – including dishonor of cheques to applications for summary procedure to matrimonial to maintenance petitions; miscellaneous petitions etc.; to state the relevant facts. CPC Order19 Rules 1,2 and 3 correspond to Supreme Court Rules, 2013 Order 11 Rules 1, 2 and 5. Rule 1 in both provides that the court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. Now it is this aspect of the rule that has become operative whereby the apex Court asked the Government to file an affidavit on the matter.

"Suppression of material facts in an affidavit or a petition and speaking only half truths mislead the Court and therefore are liable to be summarily rejected. …All the relevant facts must be stated correctly and candidly."

Bhuth Nath v. State of West Bengal (1974) 1 SCC 645

If a party desires to controvert the averments contained in the affidavit of the opposite party, one can file an affidavit-in-reply or cross-examine the deponent [State of J&K v. Bakshi Gulam Mohammed AIR 1967 SC 122]. This provision for cross-examination clearly is provided for under Rule 2 of Order 19 of CPC and Order 11 of Supreme Court Rules, 2013 dealing with the power of the court to order attendance of deponent for cross-examination- (1) where any application of evidence may be given by the affidavit, but the Court may, at the instance of the party, order attendance for cross-examination of the deponent and (2) such attendance shall be in Court, unless the deponent is exempted from personal appearance or as otherwise directed by the Court.

"The counter-affidavits by the opposite party should also be clear and meet squarely the averments in the petitioner's affidavit. The counter-affidavit is as much a solemn document and should be sworn to by one who could vouchsafe personally for the details in the affidavit."^[6]

Rule 3 of Order 19 of CPC (1903) reads akin to Rule 5 of Order 11 of the Supreme Court Rules(2013). Both provide that affidavit shall remain confined to such facts as the deponents is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. In Sanjay K Sinha-II v State of Bihar, (2004) 10 SCC 734 where an affidavit was filed by an officer on the basis of Government record and the facts stated therein was reiterated in the counter-affidavit, plea that the affidavit filed by an officer of Government did not represent the Government's view was held to be untenable.

Order 11 Rule 13 of the Supreme Court Rules brings in a petition or other document required to be sworn or verified; and where 'sworn' includes affirmed – all under the ambit of the term "affidavit". It also provides that in the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent is to disclose the source of his information, including official records.

Significance of Affidavits And Verification – Observations In Judgments

The prevalence of rules with regards to the nature and essential characteristics of an affidavit although has been dealt with in the earlier part, it is imperative to understand the implication of filing an affidavit true to one's knowledge.

Incidentally on matter of phone interception, one of the most scathing observations of Supreme Court on the responsibility and accountability required to be effected in an affidavit by the affiant was in Amar Singh v. Union of India WPC NO.39 OF 2006. The Court had expressed its displeasure that the extraordinary jurisdiction of the Court under Art.32 was invoked on the basis of an affidavit slipshod in nature, non-compliant with Rule 3 of Order 19 of CPC. The affidavit was 'perfunctory, defective and lacking the mandate of law" and which enabled the party to get an interim order that remained in force for a period of 4 years.

Some of the critical pointers while filing an affidavit highlighted through judgments over the years are:

        a.Responsibility of advocates while drawing up an Affidavit - Sounding a strict warning note to the advocates, who are also the officers of the         court,     the Madras High Court Bench of Mani Kumar J. and Subramaniam Prasad J., in Tamil Nadu Health Employees v. The Chief Election         Commissioner WPC No.6357 of 2019, has held that while assisting the parties to draw up affidavits, the advocates are expected to know of         their  responsibilities. The court observed that the affidavit in the instant case was drafted in a cavalier manner.

        b.Compliance to Order 19 Rule 3 CPC (similar to Order 9 Rule 5 of Supreme Court Rules) The earliest reference to the need for compliance to         Order 19, especially Rule 3 was made in Padmabati Dasi v. Rasik Lal Dhar [(1910) ILR 37 Cal 259] by Chief Justice Lawrence H. Jenkins and         Woodroffe, J.; where the Bench pointed out the need to expressly differentiate between the statements on deponent's knowledge and         deponent's belief and grounds for belief enabling the Court to examine each with the particularity required.

"We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order19, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent's belief."

       c.Need for proper verification of affidavit -The genuineness and authenticity of any form of allegations or truth in any statement by a deponent         can be gauged only through proper verification of the affidavit. Delhi High Court in Ranjit Construction Ltd., v. National Highways Authority         of India AIR 2004 Delhi 64 held

". … In a matter where allegations of mala fide are made against a person or party, it is all the more necessary that the person filing affidavit in this regard must take care to verify the facts stated."

Stressing the verification Aspect in A. K Nambiar v. Union of India AIR 1970 SC 652, the apex Court observed,

"Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence".

Justice Vivian Bose in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 endorsing Padmabati(supra), observed that the language in verification of affidavits has to be modelled after Order 19, Rule 3. Where on the body of the affidavit the Secretary, Govt. of Bombay, Home Dept. disclosed that certain matters were known to him personally while the verification stated that "everything was true to the best of his information and belief", the Court categorically stated that such slipshod verification can very well lead to the rejection of an affidavit. Here this shift providing a different import is particularly relevant. Regarding this the Court was of the view that when the information disclosed is not based on personal knowledge, it is necessary that the source of information be disclosed by the deponent. The aspect was followed yet again by the Constitution Bench in Barium Chemicals and Another v Company Law Board and Others AIR 1967 SC 295.

The Solemn Document

Affidavits play a crucial role in deciding disputed questions before a court of law. Their primacy as a solemn document in proceedings is revealed by the fact that the Court retains the discretion to allow cross examination of a person who has sworn by an affidavit [Barium(supra)]. Further, it is necessary that an averment made in a petition is specifically denied.

An averment made in the petition and not controverted in the counter-affidavit will be taken to have been admitted (Rowjee v.State of A.P AIR 1964 SC 962).

The recent Pegasus decision of the Supreme court is a reinforcement to the authority exuded by this document.

Several leading judgments were referred here. Most were observations of fundamental nature involving procedural laxities in "filing an affidavit". However, in the Pegasus judgment issues of larger dimension emerge - 1) that the Respondent not filing an affidavit was Union of India; 2) the issues raised pertain to fundamental rights of citizens of the country; and 3) by the non -filing of an affidavit by the party - the Union Government in this case, there is an admitted shift of burden on to the apex Court. It is telling how the Supreme Court observed how the burden befell upon the Court in the absence of a detailed affidavit from the Respondent -Union of India (UoI) in response to the petitioners' averments. But to this 'different situation' the court again brings upon the Union of India, an accountability for the reasons of national security cited, to be justified by pleading the same in an affidavit placed before the Court.

Alas! There is no getting away from an 'affidavit' in the judicial system. Clearly the sanctity and accountability this procedural tool accords to the statement of a deponent is unmatched.