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Section 95: Incriminating Questions and Certificate of Indemnity under the RP Act, 1951

Section 95 of the Representation of the People Act, 1951 governs the duty of witnesses to answer potentially incriminating questions during the trial of an election petition. It balances compulsory disclosure of relevant evidence with statutory safeguards against the use of that evidence in other proceedings and, where its conditions are met, a certificate of indemnity.

Section 95: Answering of criminating questions and certificate of indemnity

Sub-section (1): Duty to answer relevant questions

No witness may refuse to answer a question relevant to a matter in issue in an election-petition trial merely because the answer may incriminate the witness or expose the witness to a penalty or forfeiture. The protection is subject to two important provisos:

  1. Certificate of indemnity - proviso (a): A witness who truthfully answers all questions that the witness is required to answer is entitled to receive a certificate of indemnity from the High Court.
  2. Protection against use of answers - proviso (b): An answer given by a witness to a question put by or before the High Court is not admissible against that witness in a civil or criminal proceeding, except in a criminal proceeding for perjury in respect of that evidence.

Sub-section (2): Scope and limits of the certificate

Once granted, the certificate may be pleaded by the witness in any court. It is a complete defence to a charge under Chapter IXA of the Indian Penal Code, 1860, or Part VII of the Representation of the People Act, 1951, arising from the matter covered by the certificate. It does not remove any electoral disqualification imposed by the Act or any other law.

Meaning and practical effect

Incriminating question: A question whose truthful answer may suggest the witness committed an offence or engaged in conduct carrying a legal penalty. Section 95 prevents a witness from withholding relevant testimony solely on that ground.

Certificate of indemnity: A certificate issued by the High Court to a witness who meets the requirement of truthful answers. Its defence is limited to the specified election-related offences and the subject matter to which the certificate relates; it is not a general pardon.

Perjury exception: The bar against using the witness's answers in other proceedings does not protect false testimony from a criminal proceeding for perjury relating to that evidence.

Disqualification: Even where criminal liability is met with a certificate-based defence, the witness may still face an applicable disqualification from election or electoral office under relevant law.

How Section 95 operates in an election petition

  1. The High Court tries an election petition and examines a witness on a matter in issue.
  2. The witness must answer relevant questions even if the answers could be self-incriminating, subject to the statutory framework.
  3. A witness who truthfully answers all required questions is entitled to the certificate under Section 95(1)(a).
  4. The witness may invoke the certificate in a later proceeding only within the limits of Section 95(2).

Section 94 protects secrecy of voting (subject to its open-ballot exception). Section 96 deals with witnesses' expenses. These provisions address different aspects of evidence in election-petition trials.

Official legal resources

The references to Chapter IXA of the Indian Penal Code in Section 95 are part of the statutory wording. The operation of repeals, savings and subsequent criminal legislation must be considered where relevant to a particular matter.