Constitutional Privacy vs. State Surveillance: IRAC Analysis of Vinit Kumar v. Central Bureau of Investigation (2019)

 Issue

The primary issues before the Bombay High Court were:

• Whether the three interception orders issued by the Ministry of Home Affairs under Section 5(2) of the Indian Telegraph Act, 1885 violated the petitioner's fundamental right to privacy under Article 21 of the Constitution.

• Whether the Central Bureau of Investigation failed to follow due procedure established under Section 5(2) of the Telegraph Act and Rule 419A of the Telegraph Rules

• Whether evidence obtained through allegedly unlawful interception could be used in criminal proceeding.

Rule

The legal framework governing telephone interception includes:

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Supreme Court: Factors to be considered by the court while directing wife to undergo DNA test to determine paternity of a child

 In Indian matrimonial proceedings, when deciding an application for directing a wife to undergo a DNA or blood test to determine the issue of paternity, the court will consider various factors in accordance with the provisions of the Indian Evidence Act and other relevant legal principles. Here are some of the factors typically considered by the court:

• 1) Prima Facie Case: The party seeking the DNA or blood test must establish a prima facie case, meaning they must provide some initial evidence or circumstances that raise a reasonable doubt about the paternity of the child.

• 2) Welfare of the Child: The court's primary concern is the welfare and best interests of the child. It will consider the child's age, emotional well-being, and any potential harm that may result from the test or its consequences.

• 3) Voluntary Consent: Ideally, the parties involved, including the wife, should consent voluntarily to the paternity test. If the wife is unwilling to undergo the test, the court may weigh her right to bodily integrity against the interests of determining paternity.

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Whether the court can direct DNA test in Criminal case U/S 498A of IPC?

 iii. In Inayath Ali v. State of Telangana, MANU/SC/1538/2022, the question before this Court was whether a DNA test of two minor children could be ordered by a Court, with a view to facilitate proof of allegations Under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860. This Court speaking through Aniruddha Bose, J. at the outset took note of the fact that the dispute was essentially one relating to dowry related offences, and that paternity of the children of the complainant was not directly related to the allegations. The complainant therein sought for a direction to conduct DNA test of her two minor children, in order to establish that they were born as a result of her forced relationship with her brother-in-law. Rejecting the complainant's plea, this Court held as under as to the power of Courts to subject children to DNA testing, in proceedings in which their status is not required to be examined:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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What is the test of eminent need?

 ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child, is an extremely delicate and sensitive aspect. Therefore, such tests must be directed to be conducted only when the same are eminently needed. That DNA profiling in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption Under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. It was further declared that a Court may direct that a DNA test be conducted, to conclusively determine paternity, only when there is a strong prima-facie case in favour of the person seeking such a direction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Whether the court can order DNA test of child to prove adultery of wife?

 Use of DNA profiling technology as a means to prove adultery:

11. With the advancement of science, DNA profiling technology which is a tool of forensic science can, in case of disputed paternity of a child by mere comparison of DNA obtained from the body fluid or body tissues of the child with his parents, offer infallible evidence of biological parentage. But, it is not always necessary to conduct a DNA test to ascertain whether a particular child was born to a particular person, however, the burden of proof is on the husband who alleges illegitimacy. He has to establish the fact that he has not fathered the child born to his wife which is a negative plea by positive proof in accordance with Section 112 of the Evidence Act.

11.1. A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty Under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.

11.2. This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity. The following decisions of this Court are highly instructive in determining the circumstances under which a DNA test may be ordered by a Court in matters involving disputed questions of paternity:

26. From the above discussion it emerges:

(1) that courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising Under Section 112 of the Evidence Act.

(4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) no one can be compelled to give sample of blood for analysis.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Supreme Court: Children's Right Not To Have Their Legitimacy Questioned Frivolously is Part Of Their Privacy Right

 The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the Respondent No. 2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. {Para 7}

8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

9.  Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court's direction.

The right of children not to have their legitimacy questioned frivolously in Courts of Law:

17. Further, children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023

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Kerala HC: The modern concept of access and non-access for drawing presumption of legitimacy of the child as per S 112 of Evidence Act

When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec. 112. All we intend to note now is that even in a case where the presumption under Sec. 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

45. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec. 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. 

46. That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec. 112 of the Evidence Act. "Access" in Sec. 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec. 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. 

50. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All ELR 356] cited by Sri C.S. Dias, the learned Amicus Curiae. We extract the same below:

When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.

51. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression 'access' in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

It is hence that we think that a realistic understanding of the expression 'access' would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility/opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse.If such access is contra indicated conclusively by the D.N.A test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

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Basic principles to be followed if there is conflict between two fundamental rights

 Be it stated, circumstances may emerge that may
necessitate for balancing between intra-fundamental rights.
It has been distinctly understood that the test that has to be
applied while balancing the two fundamental rights or inter
fundamental rights, the principles applied may be different
than the principle to be applied in intra-conflict between the
same fundamental right. To elaborate, as in this case, the
accused has a fundamental right to have a fair trial under
Article 21 of the Constitution. Similarly, the victims who
are directly affected and also form a part of the constituent
of the collective, have a fundamental right for a fair trial.
Thus, there can be two individuals both having legitimacy to
claim or assert the right. The factum of legitimacy is a
primary consideration. It has to be remembered that no
fundamental right is absolute and it can have limitations in

certain circumstances. Thus, permissible limitations are
imposed by the State. The said limitations are to be within
the bounds of law. However, when there is intra-conflict of
the right conferred under the same Article, like fair trial in
this case, the test that is required to be applied, we are
disposed to think, it would be “paramount collective
interest” or “sustenance of public confidence in the justice
dispensation system”. An example can be cited. A group of
persons in the name of “class honour”, as has been stated
in Vikas Yadav v. State of U.P. & Ors., cannot curtail or
throttle the choice of a woman. It is because choice of
woman in choosing her partner in life is a legitimate
constitutional right. It is founded on individual choice that
is recognized in the Constitution under Article 19, and such
a right is not expected to succumb to the concept of “class
honour” or “group thinking”. It is because the sense of
class honour has no legitimacy even if it is practised by the
collective under some kind of a notion. Therefore, if the
collective interest or the public interest that serves the
public cause and further has the legitimacy to claim or
assert a fundamental right, then only it can put forth that
35 (2016) 9 SCC 541

their right should be protected. There can be no denial of
the fact that the rights of the victims for a fair trial is an
inseparable aspect of Article 21 of the Constitution and
when they assert that right by themselves as well as the
part of the collective, the conception of public interest gets
galvanised. The accentuated public interest in such
circumstances has to be given primacy, for it furthers and
promotes “Rule of Law”. It may be clarified at once that the
test of primacy which is based on legitimacy and the public
interest has to be adjudged on the facts of each case and
cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate
perception of the balancing that would subserve the larger
public interest and serve the majesty of rule of law. 
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 132 OF 2016
Asha Ranjan 
V
State of Bihar & Ors.
Dated:FEBRUARY 15, 2017.
Citation: AIR 2017 SC 1079.

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Whether DNA test can be conducted to ascertain whether mother of child is living in adultery?

It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.

11. The question that has to be answered in this case, is in respect of the alleged infidelity of the Appellant-wife. The Respondent-husband has made clear and categorical assertions in the petition filed by him Under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the Appellant-wife. It is in the process of substantiating his allegation of infidelity, that the Respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the Appellant-wife. The Respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the Appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the Respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the Respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the Appellant-wife is right, she shall be proved to be so.

12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the Appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the Respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:

114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.

This course has been adopted to preserve the right of individual privacy to the extent possible. of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated Under Section112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.1

“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9744 OF 2014

(Arising out of SLP(C) No.5694 of 2013)

Dipanwita Roy V Ronobroto Roy

Jagdish Singh Khehar, J.

Dated;October 15, 2014.
Citation;AIR 2015SC418

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