Quest for Truth in the Post-Colonial Justice System

Quest for Truth in the Post-Colonial Justice System
Umer Akram Chaudhry takes a look at the problem of perjury in Indian subcontinent and its roots lying in imposition of an 'alien' justice system, 'notorious for its corruption, incompetence, and abuse'.

For over two hundred years, the architects of the colonial justice system engaged in an elusive pursuit of truth in India, a land replete with lies and deceit in the colonial imagination. Indian natives were either, as per the distrustful Governor General Cornwallis, invariably corrupt or merely imaginative or prone to error, according to other patronising commentators.

George Orwell in Shooting the Elephant (1936) encapsulated the colonial mind-set in the story of a sub-divisional police officer trying to find an elephant ravaging a bazaar: “We began questioning the people as to where the elephant had gone and, as usual, failed to get any definite information. That is invariably the case in the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes.”

From the Court of Directors of the East India Company to Thomas Macaulay, from barristers in Calcutta to the High Court of Chancery in England and the judges of the Bombay High Court, the colonisers deplored the frightful amount of perjury committed by the natives of India. The colonial policymakers devised various reforms to deal with the problem of distrustful Indians.

In 1872, Justice L. H. Bayley of the Bombay High Court even suggested that “... I doubt if anything short of knowledge that the Judges could then and there order his imprisonment or the administration of fifty lashes or more with the cat-o’-nine-tails would deter a dishonest witness.”

Till the very end of the British Raj, the colonial view about the deceitful nature of the natives of India remained consistent.

But was it just a racism problem?

But the problem presented by fake witnesses, false testimonies, and frivolous charges is a genuine one and has concerned judicial authorities till date. In the recent judgment of the Supreme Court regarding the Police Constable Khizar Hayat, Chief Justice Asif Saeed Khosa rightly observed that “truth is the foundation of justice… [and] any compromise on truth amounts to a compromise on a society’s future…” Chief Justice Khosa’s commitment towards eradicating the problem of false testimonies is well-known.

Addressing the full court reference for the retiring Chief Justice Saqib Nisar on 17 January 2019, Chief Justice Khosa stated that the focus of his tenure would be on building “a dam against frivolous litigation and a dam against fake witnesses and false testimonies”.

In the case of Khizar Hayat, the Supreme Court censured the colossal wrong resulting from deviation from truth, held that the principle that falsus in uno, falsus in omnibus would be an integral part of the criminal jurisprudence of Pakistan, and ordered proceedings against Khizar Hayat for committing perjury under the Pakistan Penal Code.

Truth is, as noted by the Supreme Court, of critical importance in criminal jurisprudence where the consequence may have an impact on the life and liberty of the accused. At the same time, one may raise a very simple (and a rather problematic) question: why do witnesses lie in our part of the world? From the colonial perspective, the problem was exaggerated and racially defined to serve the colonial project of civilizing the infantile natives. David H. Bayley noted in Police and Political Development in India (1969) that a majority of English colonisers in India had no experience with the courts in their homeland. When they discovered the situation in India, they were so appalled that they could not believe the situation could be so bad at home. Cultural pride stood for facts. The view that Indians were habitual liars, therefore, underpin the article of Thakur Prasad Dubey written in 1945 and the judgment of Bakhshish Singh v Emperor AIR 1925 Lahore 549, which have both been referred to in the Khizar Hayat judgment.

“Speak the truth, you are not standing in a court of law”

But, unlike the officers of the British India, we cannot substitute our national pride for facts and ignore the perennial problem of false testimonies in South Asia.

We are in a better position, however, if we do not characterise it as a racial problem. As T C Arthur wrote in Reminiscences of an Indian Police Officer (1894), the English agricultural classes were “as much, if not more, addicted to lying as my old friend Bhow Patel or Bappoo Kunbi in India”.

The only point that has to be made is that the problem of false testimonies before judicial forums is not a purely legal problem. On the other hand, one may argue, it is an issue that arises in the interaction between the natives and an alien legal system. What else may be the reason for the Indian saying: “Speak the truth, you are not standing in a court of law”.David H. Bayley argued that the truth-telling in Indian courts is a complicated matter. According to him, the Indians, finding themselves in an alien system and procedure, did not consider themselves bound by the same sense of moral values that they would otherwise observe.

Trust and loyalty towards a foreign, confusing, and unresponsive legal system was conveniently displaced by inducements of caste and kinship or forces of threats and intimidation.

Why Indians believed that truth was never enough?

Professor Bernard S. Cohen also noted that the Indians in the nineteenth and early twentieth century considered courts as engines of revenge and punishment rather than as legal forums essential for justice, fairness, and civilised society. In order to get back at their rivals and to use the system to their advantage, the local population of India brought a very different set of morality to the formal setting of the courtroom that is seemingly based on the principle that truth was never enough. When confronted with a system notorious for its corruption, incompetence, and abuse, the local population considered embellishment and falsification to be the only way that the system could ever respond. During the colonial rule, the colonial authorities devised a number of means to overcome the problem posed by perjuring Indian.

Elizabeth Kolsky in Colonial Justice in British India: White Violence and the Rule of Law (2010) has noted that the laws of oaths and evidence and medico-legal legislation in India has its roots in the inherent distrust of the English administrators towards the truth-telling ability of Indian witnesses.

But what we understand from the more recent scholarship is that the problem of falsehood in the South Asian courtrooms is an issue that, like many others, arises from the tensions created by a distant and alien legal system. Solution to this problem has to be grounded in its historical context and overall reform of our broader judicial system.

The writer is a lawyer based in Lahore. He is also adjunct faculty at Lahore University of Management Sciences.