IPC Section 178 and BNS Section 213: Refusing an Oath or Affirmation
A guide to the offence of refusing to make an oath or affirmation when lawfully required by a competent public servant, including its ingredients, punishment, procedure and the transition from the Indian Penal Code to the Bharatiya Nyaya Sanhita.
What does IPC Section 178 mean?
IPC Section 178 addressed a person's refusal to bind themselves by an oath or affirmation to state the truth when a public servant legally competent to require it duly demanded that oath or affirmation. It was not a general offence of disagreeing with an official: the demand had to be authorised by law.
The original IPC punishment was simple imprisonment for up to six months, a fine of up to Rs. 1,000, or both. The substance of the prohibition is carried forward in BNS Section 213, with an increased maximum fine.
BNS Section 213: Current provision and punishment
Section 213 of the Bharatiya Nyaya Sanhita concerns a person who refuses to undertake, by oath or affirmation, to state the truth when a legally competent public servant requires that undertaking.
| Present provision | Section 213, Bharatiya Nyaya Sanhita, 2023 |
|---|---|
| Earlier provision | Section 178, Indian Penal Code, 1860 |
| Nature of conduct | Refusal to take an oath or make an affirmation to state the truth when lawfully required |
| Maximum imprisonment | Simple imprisonment up to six months |
| Maximum fine | Rs. 5,000 under BNS Section 213 |
| Alternative sentence | Imprisonment, fine, or both |
| General classification | Non-cognizable and bailable under the BNSS First Schedule |
Essential ingredients of the offence
- A public servant made the requirement: The direction must come from an official acting in that official capacity.
- Legal competence: The public servant must have legal authority to require an oath or affirmation in the circumstances.
- Requirement to state the truth: The person must be required to bind themselves by an oath or affirmation for truthful testimony or a legally authorised statement.
- Refusal: The person must refuse that lawful requirement. Whether a refusal is established depends on the evidence and surrounding facts.
A request from an official who lacks statutory power to administer or demand the oath does not, merely by being made, establish this offence. Likewise, whether a person is legally entitled to decline to answer a particular question is a separate issue from refusing a valid oath.
Key legal terms explained
Oath
A solemn undertaking to speak the truth, administered in a legally recognised form. The applicable procedure depends on the governing statute and forum.
Affirmation
A legally recognised solemn declaration to speak the truth without a religious oath. An affirmation ordinarily serves the same truth-binding function as an oath where permitted by law.
Public servant legally competent
A public servant who is empowered under the relevant law to demand an oath or affirmation in the particular proceeding. Official status alone does not establish competence for every purpose.
Simple imprisonment
A form of imprisonment that does not entail the hard labour associated with rigorous imprisonment.
Practical illustrations
- Lawful refusal example: A witness appearing in a proceeding is lawfully required by a competent authority to make an oath or affirmation before giving evidence. If the witness refuses without a legally recognised justification, Section 213 may be attracted.
- No legal authority: An official with no legal power to require an oath demands one during an informal conversation. Refusing that demand does not by itself satisfy the legal-competence element.
- Affirmation instead of religious oath: A person who is entitled to affirm rather than take a religious oath should not be treated as refusing merely because they request the legally permitted affirmation.
Cognizance and procedural safeguards
The offence is classified as non-cognizable and bailable. Non-cognizable ordinarily means the police cannot investigate without the requisite Magistrate's order; bailable means bail is available as a matter of right subject to applicable procedure.
For offences involving contempt of the lawful authority of public servants, Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contains restrictions on a court taking cognizance of specified offences without the prescribed written complaint by the concerned public servant or another public servant to whom that person is administratively subordinate. The exact procedural requirements should be examined in the context of the case.
IPC Section 178 compared with BNS Section 213
| Feature | IPC Section 178 | BNS Section 213 |
|---|---|---|
| Offence | Refusal of a lawfully required oath or affirmation | Substantially the same conduct |
| Imprisonment | Simple imprisonment up to six months | Simple imprisonment up to six months |
| Maximum fine | Rs. 1,000 | Rs. 5,000 |
| Commencement | Historical IPC framework | Applicable under the new criminal-law framework from 1 July 2024, subject to savings |
Frequently asked questions
Is refusing to take an oath always a criminal offence?
No. Section 213 requires a lawful demand by a public servant legally competent to make it. The facts, governing law and any applicable protections matter.
Can a person choose affirmation instead of an oath?
Where the law allows affirmation, choosing that form instead of a religious oath is not the same as refusing to be bound to tell the truth.
What is the punishment under BNS Section 213?
Simple imprisonment up to six months, a fine up to Rs. 5,000, or both.
Is this offence cognizable or bailable?
It is generally classified as non-cognizable and bailable under the BNSS First Schedule.
Does IPC Section 178 still matter?
Yes. It remains relevant to historical conduct, older case records and proceedings governed by transitional or savings provisions. The correct statute should be determined with reference to the alleged offence date.
Official legislation and reference materials
- Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023) - India Code
- India Code - Central Acts and updated legislation
- BNS text and IPC correspondence - Bureau of Police Research and Development
- BNS offence classification handbook - Delhi Police
Disclaimer: This article is general legal information, not a substitute for case-specific legal advice. Check the latest legislation, rules and binding court decisions before relying on it in proceedings.