Previously on this blog, we have discussed the constitutional right against self-incrimination in the context of intrusive interrogation techniques, such as narco-analysis, polygraph tests and brain-mapping, and how they impinge upon the citizens’ informational and mental privacy. In particular, we saw how the Supreme Court’s jurisprudence has tracked two distinct ideas, or purposes, that could underlie Article 20(3) of the Constitution, which guarantees the right against self-incrimination: a crime-control model, which takes the goal of the criminal law to be efficient and accurate fact-finding, and therefore tolerates only those procedural safeguards and limitations that can contribute to discovering the truth; and a due process model, which views procedural safeguards as essential to protect citizens’ basic rights against an increasingly ubiquitous and intrusive State.
Within this conceptual framework, consider S. 112 of the Evidence Act, which states:
“Birth during marriage, conclusive proof of legitimacy — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
Under S. 4 of the Evidence Act, conclusive proof of a fact precludes any evidence from being given for the purposes of disproving that fact. In other words, it is an irrebuttable legal presumption.
What might be the basis for creating such a presumption? Consider the following argument: the privacy of marriage and the family (as upheld by Gobind vs State of Madhya Pradesh to fall within Article 21) would preclude judicial cognisance of evidence for or against paternity, since that question is quintessentially within the domain of the family. But that, in itself, doesn’t explain why there is a presumption of legitimacy.
Perhaps, though, the underlying rationale of the Section isn’t about maintaining the privacy of family life, but the privacy of information that is deeply personal to the child. Cognisant of the social stigma that accompanies a declaration of illegitimacy, the Section states that whatever might be the actual state of affairs, in the absence of a narrowly circumscribed range of exceptions, the child will be presumed to be legitimate. Alternatively, consider still another justification: in 1872, when the Evidence Act was drafted, there was no way of proving paternity. Blood samples and DNA tests were unknown. Consequently, perhaps the Section acknowledges that fact, and fixed a presumption on the side of the more likely, and administratively more efficient, outcome – that of legitimacy.
As we can see, the former rationale closely approximates the due process model, with its focus on protecting individual rights. The latter, on the other hand, is closer to the crime-control model (albeit in a civil context), as it is motivated by concerns about the truth. This is not a theoretical debate because, as we shall see, the underlying purpose of S. 112 becomes relevant in contemporary times, when it has become possible to ascertain parentage and legitimacy by using scientific methods, such as DNA tests.
The first Supreme Court case to examine the issue in detail was Goutam Kundu vs State of West Bengal (decided in 1993). The appellant and the respondent were married. The respondent went to her parents’ house to study for her exams, during which time she conceived (despite pressures from her in-laws to have an abortion). She applied for – and was granted – maintenance. The Appellant filed a criminal miscellaneous petition asking for a blood test to prove paternity. He argued that if it was proved that he was not the father of the child, he would not be obliged to pay maintenance. His petition was rejected by the High Court and, consequently, he approached the Supreme Court.
The Supreme Court commenced by observing that unlike in the United Kingdom and the US, there was no statutory authorisation granted to the Courts, to direct the taking of blood samples. It then cited the 1975 Kerala High Court judgment of Vasu vs Santha, where the Court had provided two rationales for S. 112: first, for “considerations of public policy… there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court.” And secondly, “before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful… the maximum that can be done where a party refuses to have a blood test is to draw an adverse inference.” Both these reasons, very obviously, are located within the due process model, focusing on informational privacy (avoiding social stigma) and bodily privacy interests.
The Court then noted that a “rebuttable presumption” existed that a child born during wedlock was legitimate, and that “access occurred between parents” – a presumption that could be displaced only by a “strong preponderance of evidence.” Notice that this is not entirely correct: there is a rebuttable presumption of access, where the onus is upon the one challenging paternity to displace it, but in case he cannot do so, there is then an irrebuttable presumption of legitimacy.
In the present case, since there was no evidence showing non-access, the Court declined to order the blood test. In conclusion, it laid down five principles: first, that a court could not order a blood test “as a matter of course“; secondly, that a request for a blood test as part of a “roving enquiry” would not be entertained; thirdly, that there would have to be a “strong prima facie case“, i.e., the husband must establish non-access in order to displace the presumption; fourthly, the Court would examine the consequences of ordering the blood test, and whether “it will have the effect of branding a child as a bastard and the mother as an unchaste woman“; and lastly, nobody could be compelled to give a blood sample for analysis (based, as we have discussed above, upon the right to bodily liberty/privacy). Presumably though, as held in previous cases, an adverse inference could be drawn upon refusal.
While much of this sounds straightforward and sensible, there is a curious slip between the third and the fourth principles. In the third, the Court correctly holds that in order for the question of a blood test even to arise, the husband must establish non-access, so as to refute the irrebuttable presumption of legitimacy. But the Court then also holds that it would examine the consequences of passing such an order, based upon concerns relating to informational privacy. Yet consider this: if the purpose of the irrebuttable presumption of legitimacy was to preserve the informational privacy of the child and mother, and save them from social stigma, then the consequences of allowing any kind of evidence (including a blood test) to be led, had already been considered by the legislature while drafting S. 112. In other words, the balance between protecting individual privacy, and ascertaining legitimacy (with all its attendance adverse consequences for the wife and child) was already written into the text of the statute, through a two step procedure, the first of which required the husband to prove non-access, and the second of which barred any evidence from being led on the question of legitimacy, if he could not do so. But if that was the case, then the Court was not entitled to re-open a question that had already been settled by the legislature. By considering the “consequences” of ordering a blood test (in light of its impact upon privacy), the Court was balancing the same concerns that had already been balanced while drafting the statute.
Consequently, the only way to reconcile the Court’s dictum with statutory interpretation is to hold that the irrebuttable presumption of legitimacy speaks not to the protection of privacy, but to the ascertainment (or, in 1872, the inability of ascertaining) the truth. Under this interpretation, the Court was then adding an additional layer of judicially-evolved safeguards by holding that even in cases were non-access was proved, the consequences of allowing evidence to be led (in terms of their impact upon individual privacy) would be judicially assessed, before any order could be given. But as we shall see, the failure of the Court to lay out a clear conceptual foundation underlying the scheme of 112 would eventually lead to a conflicted jurisprudence.