Compulsory production of evidence vs. Adverse inference:
A civil dispute is an adversary litigation. It differs from criminal prosecution. In a criminal prosecution, there is a law which authorizes prosecution agency to collect blood sample from accused and it is not treated as self-incrimination. In civil litigation the law is up-side down. If a party refuses to produce evidence, the court at best can do two things: 1) Draw adverse inference and/or 2) Strike off his defence. The reason given is that court will not act at a behest of a party to collect evidence on its behalf and also that a plaintiff must stand on its own legs. But that was yesterday. There is new law in a paternity suit. A person (Plaintiff) filed a suit claiming declaration that one Mr. N.D.Tiwari is his father and that Mr. Tiwari had an a fling with the mother of Plaintiff, 32 years back. High Court directed the Tiwari to give his blood sample for DNA profiling with plaintiff. Devision Bench affirmed the decision and justified its direction for compulsory blood test with this reasoning:
Supreme Court also in Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271 held that it is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue and the Court ought to take an active role in the proceedings in finding the truth and administering justice. Recently in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) 2012 (3) SCALE 550 it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimized was noticed. We are therefore of the opinion that adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak adverse inference. (Full judgement is here.)
This is certainly one of those judgements which, if upheld by superior court, would certainly change the trial of suits, especially the manner in which evidence is produced or rather concealed by parties.
Post Script: (added on 24th May 2012)
The Supreme Court of India has affirmed this decision by refusing to interfere but with the direction that full confidentiality of blood test may be maintained.
Tiwari’s last hope in getting any relief in not giving blood sample was dashed as the apex court dismissed Tiwari’s appeal against the Delhi High Court order which had ordered him to undergo the DNA test saying that police force can be used to compel the 86-year-old leader to give the sample. …… A bench of justices Deepak Verma and S J Mukhopadhaya asked him to make himself available at his home before a group of people comprising district judge, civil surgeon of Dehradun, joint registrar of the Delhi High Court and a pathologist. (Source: http://www.firstpost.com/ideas/no-relief-for-nd-tiwari-sc-tells-him-to-give-blood-sample-320331.html)
So now, the law has finally flipped in favour of collecting the evidence, from defendant by force and not to remain satisfied with adverse inference alone.
© Sandeep Bhalla