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. Then, in K.S. Puttaswamy (2017), as it encoded the right to privacy — including of genetic data — as a fundamental right under Article 21, the Court introduced a constraint that prior paternity jurisprudence did not have to reckon with. The threefold test it set up, of legality, legitimate aims, and proportionality, was brought to bear in Aparna Ajinkya Firodia (2023), which concluded that DNA tests should be ordered only where they are necessary and proportionate, and not if a dispute could be resolved based on other evidence. In Ivan Rathinam (2025), the Court said neither privacy nor knowledge were absolute and that the judiciary also has to negotiate stigma and necessity. Its order in CP vs AP (2026) tied all these contentions together as it upheld a trial court’s direction for a DNA test on the grounds that the disputed question of paternity could not be resolved by the existing material record and required a scientific determination, by applying necessity and proportionality considerations. In the post-Puttaswamy era, then, the Constitution protects bodily autonomy and restricts compelled genetic disclosure — but courts could order a DNA test if paternity is directly in issue, there is no other evidence on record capable of resolving the question, and the test would serve the interest of justice. Thus, by positioning DNA testing as a last resort, the courts have to ensure that while science may be infallible, the pursuit of truth is only just when it respects a person’s rights. Published - June 22, 2026 12:15 am IST Read Comments Copy link Email Facebook Twitter Telegram LinkedIn WhatsApp Reddit READ LATER SEE ALL Remove Related Topics parent and child / children / social issue / court / human rights / Right to Privacy / science (general) / genetics
- 1The evolution of DNA paternity jurisprudence directly intersects with fundamental rights under the Indian Constitution, particularly Article 21's right to personal liberty and privacy. The Supreme Court in K.S. Puttaswamy (2017) — a nine-judge bench — unanimously held that privacy is a fundamental right, explicitly including the privacy of genetic data. This landmark ruling restructured how courts must approach any state-compelled bodily intrusion, including DNA sampling, by requiring legality, a legitimate state aim, and proportionality — a constitutional tripwire that lower courts must now consciously navigate in paternity proceedings.
- 2The paternity dispute litigation in India often carries significant inheritance and succession law consequences, governed by personal law statutes such as the Hindu Succession Act 1956 and the Muslim Personal Law (Shariat) Application Act 1937. A finding of illegitimacy can extinguish rights to ancestral property and maintenance. International law provides a parallel framework: the United Nations Convention on the Rights of the Child (UNCRC), ratified by India, guarantees every child the right to know and be cared for by their parents (Article 7), creating a tension between privacy rights of adults and identity rights of children that courts must balance.
- 3The Bharatiya Sakshya Adhiniyam 2023 (BSA), which replaced the Indian Evidence Act 1872 from July 1, 2023, retains the presumption of legitimacy (Section 112 IEA equivalent) while modernising evidentiary standards. The Supreme Court's progressive case law — from Goutam Kundu (1993) through CP vs AP (2026) — has operationalised this presumption alongside scientific evidence. The Personal Data Protection Act framework (now the Digital Personal Data Protection Act 2023) may further regulate how genetic data obtained through court-ordered tests is stored, shared, and destroyed, adding a new regulatory layer to paternity litigation.
- 4Scientifically, DNA paternity testing uses short tandem repeat (STR) analysis to achieve accuracy levels above 99.99% in affirmative tests, making it arguably the most reliable evidence type in civil litigation. India's forensic science infrastructure is expanding: the National Forensic Sciences University (NFSU), established by Parliament in 2020, is building national capacity. Yet court backlogs and the cost of accredited testing remain barriers. The Supreme Court's insistence on necessity and proportionality partly reflects practical concerns — not all family courts have access to accredited laboratories, and rushed or poorly supervised tests have led to chain-of-custody challenges in the past.