DNA test, order to give blood sample and law of evidence

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.)

Delhi High Court

Delhi High Court (Photo credit: ramesh_lalwani)

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

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Seven Sins by Honourable

New Delhi, Nov. 10: Former Supreme Court judge Ruma Pal today tore into the process of appointment of judges to the Supreme Court and the high courts and the lack of an embedded mechanism to ensure judicial accountability.

Pal, a widely respected jurist not known to mince words, chose to put a caveat to her words: she was speaking from the “safe haven of retirement”.

“The process of appointment of judges to the superior courts was possibly the best kept secret of the country,” she said. Judges’ appointments are now initiated and cleared by a collegium of the four senior-most judges and the Chief Justice of India for the Supreme Court and three senior judges and the chief justice for a high court. Since 1993, the executive’s role has been to dutifully appoint those cleared by the collegium. The executive can return the names but has to appoint the judges if the collegium clears the list again.

Seven Sins accounted by Gandhi Ji.

An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added.

Consensus in the collegium is often arrived at by “trade-offs”, she said, with “disastrous effects”. Pal also lamented the growing “sycophancy” and “lobbying” which colour these appointments.

Pal was delivering the fifth V.M. Tarkunde memorial lecture here. Tarkunde, considered the father of the human rights movement in the country, was a lawyer in the Bombay Bar. He became a high court judge but later gave up the post to don black robes again.

via http://telegraphindia.com/1111111/jsp/frontpage/story_14735972.jsp#

Extract of her speech is as under:

Judges are fierce in using the word [“independence”] as a sword to take action in contempt against critics. But the word is also used as a shield to cover a multitude of sins, some venial and others not so venial. Any lawyer practising before a court will, I am sure, have a rather long list of these. I have chosen seven.

The first is the sin of “brushing under the carpet”, or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned, and suppressed any public discussion on the issue, often through the great silencer — the law of contempt.

The second sin is that of “hypocrisy”. A favourite rather pompous phrase in judgments is “Be you ever so high, the law is above you”, or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations, and another regulation to which the “ordinary” citizen is subject. Some in fact get offended if their car is held up by the police at all while controlling the flow of traffic — the feeling of offence sometimes being translated into action, by issuance of a rule of contempt against the hapless police constable, all in the name of judicial independence.

The third sin is that of secrecy. The normal response of courts to any enquiry as to their functioning is to temporise, stonewall and prevaricate. As I have said elsewhere, the process by which a judge is appointed to the high court or elevated to the Supreme Court is one of the best-kept secrets in the country…

If “independence” is taken to mean “capable of thinking for oneself”, then the fourth sin is plagiarism and prolixity. I club the two together because the root cause is often the same, namely the prolific and often unnecessary use of passages from textbooks and decisions of other judges — without acknowledgement in the first case, and with acknowledgement in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue, with very little original reasoning in support of the conclusion.

Often judges misconstrue judicial independence as judicial and administrative indiscipline. Both of these in fact stem from judicial arrogance as to one’s intellectual ability and status…. Intellectual arrogance, or what some may call intellectual dishonesty, is manifest when judges decide without being bound by principles of stare decisis or precedent…

Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill will. Most importantly judges must be perceived as so deciding, or to use Lord Hewart’s classic dicta that “justice should not only be done, but should manifestly and undoubtedly be seen to be done,” because the belief of corruption is as damaging to the credibility in the independence of the judiciary as the act of corruption.

This brings me to the seventh and final sin of nepotism or what the oath of office calls “favour” and “affection”. What is required of a judge is a degree of aloofness and reclusiveness not only vis-à-vis litigants but also vis-à-vis lawyers. Litigants include the executive. Injudicious conduct includes known examples such as judges using a guesthouse of a private company or a public sector undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a chief minister. I can only emphasise again that nothing destroys a judge’s credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as “face value”.

…I will conclude with most important facet of judicial independence. Judicial independence cannot exist without accountability. At present the only disciplinary power over judges is vested in Parliament which provides for the extreme punishment of removal for acts of proven misbehaviour by or incapacity of a judge…

Deprivation of jurisdiction or the non-allocation of work to a dishonest judge was resorted to by Chief Justice Sabyasachi Mukherjee when the impeachment of Justice V. Ramaswamy failed for political reasons. Sometimes Chief Justices control a recalcitrant judge by ensuring that the judge concerned sits with the Chief Justice or with a “strong” judge until he or she retires. The situation becomes more difficult if the allegations are against the Chief Justice. Solutions evolved have proved inadequate and ad hoc. There is a need for an effective mechanism for enforcing judicial accountability…

via http://www.indianexpress.com/news/the-seven-deadly-sins-of-judges/874657/0


Contempt and Mens rea

Standard of proof required for Contempt

The standard of proof required to establish a charge of ‘criminal contempt’ is the same as in any other criminal proceeding. It is all the more necessary to insist upon strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a judicial officer.

Even if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner, if the act or omission complained of, was not willful.

(See S. Abdul Karim v. M.K. Prakash, 1976 CrLJ 641 : 1976 AIR (SC) 859 : 1976 CAR 124 : 1976 CrLR (SC) 102 : 1976 Ker LT 184 : 1976 SCC (Cr) 2170)

It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.

[Debabrata Bandopadhyay vs The State Of West Bengal,1969 AIR SC 189, 1969 SCR (1) 304 on 2 July, 1968]

However in English Law it is well settled that to prove contempt two ingredients must be established. First actus reus i.e. the relevant fact constituting contempt and mes rea i.e. the necessary intent or guilty mind.

Read more about contempt and mens rea here.