​Just truths: On DNA evidence and rights

To protect children from the stigma of illegitimacy, the erstwhile Indian Evidence Act 1872 and the Bharatiya Sakshya Adhiniyam 2023 place the burden of proof on the party denying paternity rather than the party seeking confirmation. The Supreme Court of India first considered the challenges posed by DNA evidence in this regard, in Goutam Kundu (1993), where it held that DNA tests could not be ordered as a matter of routine and that courts must first assess whether a strong prima facie case had been made out. It reiterated this position in Shri Banarsi Dass (2005); both cases also reinforced the protection of legitimacy over any interest in forensic curiosity. Then, in the litigation mooted by Rohit Shekhar alleging that veteran politician N.D. Tiwari was his father, the Delhi High Court and the top court called for the test despite Mr. Tiwari insisting that his right to privacy was being violated. In Nandlal Wasudeo Badwaik (2014), the Court said that when reliable scientific proof confronts legal fiction, the former may prevail in the interest of justice; in Dipanwita Roy (2014), it acknowledged that refusing testing can lead to adverse inference. Both orders also confirmed the legitimacy of DNA tests based on need.