(1) This application under Art. 227 of the Constitution has been preferred questioning the legality and regularity of an order passed by the Election Court under the Madras Panchayats Act 1958, pending an Election petition under the Act at the instance of the first respondent herein. By the impugned proceeding, the Election Court has directed the petitioner herein to appear before the Medical Officer, Government Leprosy Subsidiary centre, Vridhachalam, and submit himself for medical examination, for the purpose of ascertaining the fact whether he was suffering from leprosy. The petitioner herein is the first respondent in the Election petition above referred to and the successful candidate as against the first respondent herein in the election held for one seat for the Srinushnam Town Panchayat, South Arcot Dt. The election of the petitioner is challenged inter alia on the ground that he was suffering from leprosy and therefore, disqualified under Section 25(2)(a) of the Panchayat Act. Under the rules Section 178(2) of the Act, the District Munsif having territorial jurisdiction over the place in which the office of the Panchayat is situated is the Election Court and Rule 3 specifically provides that the District Munsif exercising jurisdiction under the rules shall be deemed to exercise such jurisdiction as persona designata and not in his capacity as a munsif.
(2) In this case the first respondent herein, (hereinafter referred to as the respondent), the other party being only a pro forma party, filed before the Election Court an application purporting to be under Rule 6(2)(a) and (f) praying that the respondent may be directed to appear in Court in person on a given date for a personal inspection and discovery both by the Court and by the Medical Officer referred to in his affidavit. In his affidavit, the respondent stated that the order is necessary for examination of the blood by a medical officer and after necessary discovery and inspection the medical officer may be examined on his result about the inspection. The present petitioner, the successful candidate and the first respondent in the Election petition, denied that he was suffering from leprosy, averred that it is a false and vexatious plea, and contended inter alia that there was no provision of law or procedure under which he could be compelled to submit himself for medical examination and test. He, however, produced a medical certificate to show that he was not disqualified. The Election Court (District Munsif, Vridhachalam) took the view that "suffering from leprosy" was a statutory disability and by necessary implication the Court was clothed with such power to have it determined and it would be possible to so determine only by exercising the Court's jurisdiction in ordering the medical examination of the petitioner herein and test by the Government medical officer. Certain observations in George Swamidoss Joseph v. Sundari Edward (1954) 67 Mad LW 676, a case under the Indian Divorce Act, are relied upon for arriving at the conclusion that the Court could compel the petitioner to submit himself for medical examination and test.
(3) Mr. K. Gopalachari learned counsel appearing for the petitioner, contends that the election Court, which in this case had not even all the powers of an ordinary Court, the District Munsif functioning as Election authority only as persona designata, had absolutely no jurisdiction whatsoever to order compulsory medical examination of the respondent in an election petition. Learned counsel contends that such power had not been given to the election Court either by statute or by rules and that no other law warrants such interference with the liberty of the person and the sanctity of the human body. Neither the Evidence Act nor the Civil Procedure Code provide for such compulsory medical examination and against a party respondent at the instance of a petitioner. I shall immediately refer to three decisions bearing on the matter in consideration, which directly negative the existence of such power even in regularly constituted Courts.
(4) In Venkataswarlu v. Subbayya, the controversy in the suit related to the legitimacy of the plaintiff, the defendant--the alleged father disputing the same. The defendant applied, under Section 151 C.P.C. for a direction from the Court to the plaintiff and his mother who figured as the next friend of the plaintiff to appear in person before the Court in order to enable a medical expert to take samples of their blood. While negativing the existence of the power in the Court below to make the order as prayed for, Raghava Rao, J. observed:
"There is no provision either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case". Referring to Section 151, the learned Judge observed that it had been introduced into the Statute book to give effect to the inherent powers of Courts as expounded by Woodroffe J. in Hukum Chand Boid v. Kamalanand Singh, (1906) ILR 33 Cal 927.
(5) Again, in Ranganathan v. Lakshmi Achi, Rajagopala Aiyangar, J. denied the existence of any such power for compulsory medical test on a human being without his or her consent under Section 151, C.P.C. The learned Judge remarks:
"Apart from cases of lunacy, which stand on a special or peculiar footing, there is no decision placed before me in support of the position. Counsel invoked Section 151, C.P.C. as enabling the Court to allow such an order. I do not at all agree that Section 151, C.P.C. has any application to a case of this sort. To pass such an order is, in my opinion, tantamount to treating a human being as a material object, which the Court should do under its inherent power. The Court might draw any adverse inference against a party who refused to examine himself or herself. But I am unable to conceive of this Court having power to compel a medical test on a human being without his or her consent--apart from any statute which clothes the Court with such power."
In Sreeramamurthi v. Lakshmikantham, (S) the issue for determination was whether the plaintiff had become enceinte and given birth to a child at any time as contended by the opposite party to disentitle her in a claim for maintenance, her chastity being impugned. Umamaheswaram J. after referring to Art. 21 of the Constitution and certain observation of the Supreme Court in A. K. Gopalan v. State of Madras, observed:
"In the absence of any statutory provision compelling the medical examination of a party, and restricting the enjoyment of personal liberty of that person, it is not right to rely upon the general or inherent powers of the Court under Section 151, C.P.C. to achieve that purpose. The examination of a party as a witness is however warranted by the provisions of the Code of Civil Procedure. Medical examination is in certain cases specifically provided as under the terms of the Indian Lunacy Act."
The learned Judge followed the decision of Raghava Rao, J. in already referred to.
(6) It is surprising that in the face of the above decisions, particularly of the two decisions of this Court above referred to which had been placed before the learned District Munsif, who was functioning as the Election Court, it should have proceeded to order the compulsory examination of the petitioner in its view that the Court ought not to sacrifice justice to notions of delicacy of its own. When placing reliance upon the observations in (1954) 67 Mad LW 676 the District Munsif has failed to notice that the Matrimonial Causes Rules in England provide for medical inspection in proceedings for nullity of marriage on the ground of impotence or incapacity of the petitioner. But even there, a party could not be compelled to undergo medical inspection. At page 679 this is noticed, Ramaswami J. observing :
"The rules provide for a medical inspection of the parties in the case of nullity for impotence or wilful refusal to consummate, but the Court may grant a decree though the respondent refuses to submit to the inspection."
Again, in invoking the observation that:
"In this country it may be held that by necessary implication the court is armed with all the usual powers which in England are deemed requisite to ascertain the fact of incapacity and without which it would be impossible for any court to exercise jurisdiction......."
The learned District Munsif overlooks S. 7 of the Indian Divorce Act, which provides that the courts in India shall, in suits and proceedings under the Act, and give relief on principles and rules which in the opinion of the courts, are as nearly as may be conformable to the principles and rules on which the court for divorce and matrimonial causes in England for the time being acts and gives relief. It is in that context the Courts in this country are, by necessary implication, held as armed with the powers of Courts in England. The powers are only in relation to the matrimonial causes, the subject of consideration in that decision.
(7) Mr. K. V. Venkataseshadri Sastri, learned counsel appearing for the respondent referred in extenso to passages from Wigmore on Evidence, Volume VIII, 3rd Edn. The learned author, after discussing how the common law privilege of the opponent not to bear testimony had been broken down by statutes, expresses his views as to corporeal exhibition, that is, duty to exhibit and power to compel thus, at page 184:
"The duty to dear witness to the truth, by whatever mode of expression may be appropriate, includes necessarily the duty to exhibit the physical body, so far as the ascertainment of the truth requires it. When a civil party's privilege at common law is abolished, why does he not come within this application also of the general testimonial duty, and become compellable to disclose to the tribunal such facts as are ascertainable by inspection of his body? There is no logical escape from this consequence. The only objection on principle could be that, since that statutory charges affected in terms only the party's oral testimony and the documents possessed by him, his privilege remained as to other forms of testimony."
The learned author then proceeds to discuss whether a privilege at all existed in respect of a corporal exhibition. But it would be seen that the two or three classes of instances wherefrom the absence of privilege is gathered are cases where it is found special procedure is available for demanding corporeal exhibition. The first instance referred to is the writ "de ventre inspiciendo" available to facilitate the proof of heirship, whenever a supposititious birth is to be feared. The other instance given is with respect to the appeal of mayhem, the historical predecessor of the modern action for personal injury, while inspection of the plaintiff's body could be demanded by the defendant. Here it must be appreciated that the burden is upon the plaintiff to establish his case and would fail if he keeps back the best evidence that he could produce. The third instance referred to is the bill for divorce or nullity, alleging impotency or like fact, and the fourth instance is whether a person sought to be restrained an insane is subject to medical inspection by order of Court. It will be found that in all these cases, the procedure for inspection has been recognised and provided for. At page 138 the learned author observes:
"The principle has received further extension, by modern public health statutes, to persons believed to be suffering from contagious diseases--in particular, leprosy and venereal disease".
Such being the position and the powers if inspection of the human body being traceable to statutes or establish rules of practice, I fail to see how the passages apart as views of a great jurist can help the respondent in this case.
(8) Learned counsel for the respondent referred to the inherent powers of a Court under Section 151. To start with, the election Court is not a Court as it generally understood. Its powers are circumscribed by its constitution. Secondly, assuming it may have inherent powers in procedure, the exercise of any inherent power must be consistent with sound general principles of law and it consistent with sound general principles of law and it cannot override the rights of parties. As observed in Padamsen v. State of U. P. :
The inherent power of the Court are in addition to the power specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. It is also with recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
In that case, the court, under its inherent powers, purported to appoint a Commissioner to seize the account books in the possession of the plaintiff on the ground of defendant's apprehension that they would be tampered with. Pronouncing the invalidity of such an order, the Supreme Court observed:
"The inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights as of a party. Such powers cannot come within the scope of inherent powers of the court in the matters of procedure, which powers have their source in the court possessing all the essential powers to regulate its practice and procedure."
In the present case, the respondent has invoked the provisions under the rules providing for discovery and inspection as if the respondent's person is a thing or chattel, some dry document which could be the subject of discovery and inspection. But it is the birth-right of a man to claim that there shall be no trespass to his person, unless provided by law and is justifiable, and it is that that is sought to be violated in the present case. Das J. in , remarks:
"Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things i.e., property (jus rerum). Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e. the right that one's life shall not be taken away except under authority of law. Next to the freedom of life comes the freedom of the person, which means that one's body shall not be touched, violated, arrested or imprisoned and one's limbs shall not be injured or maimed except under authority of law. The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person".
Learned counsel for the respondent referred to the decisions of the Supreme Court in Jagannath v. Jaswant Singh, and
Harischandra v. Triloki Singh, (S) . I do not find
what assistance the respondent can derive from those decisions. It is not the contention on behalf of the petitioner that if the application in question could be maintained under the Civil Procedure Code, the respondent could not have the benefit of the procedure. Rule 6(1) of the rules framed with reference to decision on election disputes relating to Panchayats provide for the election petition to be enquired into by the election court as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code, 1908 to the trial of suits. There is a proviso that it shall only be necessary for the election court to make a memorandum of the substance of evidence of any witness examined by it. Sub-clause (2) of S. 6 particularises certain powers which the election court shall have. The Supreme Court, in the latter case, only points out when referring to similar provisions in the Representation of the Peoples Act, that the particularisation only puts the power in respect of the specified matters on a higher pedestal, as the irreducible minimum which the Tribunal is to possess. The other case, in fact, emphasises that the election court cannot claim any general power. Mahajan C. J. observes therein a page 212:
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power".
It should not however be understood that there could be no medical examination of a party and could not be claimed at all. What has to be noticed is that a party could not, against his wish be compelled to undergo a medical inspection. The Evidence Act contemplates the consideration by court of expert evidence. It will be open to the parties to examine medical witnesses in support of their respective contentions. In this case, the respondent himself, it is stated, has filed a medical certificate, I shall not refer to the contents of the same as it would be a matter for consideration at the trial. The court may refuse to attach any weight to it without the respondent making available the medical officer who has given the certificate for examination on his report. The opposite party may then cross-examine the expert on his opinion and report. It will be open to the parties, where there is no opposition, to secure medical inspection of a party under the aegis of the court and suitable orders as to how and by whom the inspection is to be carried out could then be obtained. Parties may claim that more than one expert should examine. Only there should be no compulsory direction for medical examination. The court will not stultify itself by passing an order when an individual cannot be compelled by law (the penalty may be withdrawal of certain procedural facilities) to undergo medical examination against his wish. In this connection, I may refer to a passage in Phipson on Evidence. 10th Edn at page 13, where it is stated:
"An inspection of a lady's mouth by a dentist was, however, refused under these rules (O. 19 and O. 23 R. 14 County Court Rules 1936) as not being 'any property or thing the subject-matter of the action. Irrespective of the above, however, medical inspection of a party may be ordered in various cases, e.g. in Chancery to determine pregnancy, in nullity suits on the ground of impotence, and refusal to submit is evidence against the party; and in actions for railway accidents (Regulation of Railways Act, 1868, S. 26); though bankrupts cannot be compulsorily examined with a view to their life insurance; nor can parties be ordered to exchange medical reports"
Whether and what adverse inference can be drawn in case a party refused to get himself examined by a medical expert under orders of court it is not for me to state at this stage. In this connection one has to bear in mind that any presumption from refusal must be consistent with the surrounding circumstances and be a natural inference. But in this case the petitioner himself is placing reliance on a medical opinion. However the caution sounded in S. 114 of the Evidence Act with reference to illustrations (g) and (h) has to be borne in mind when drawing inference in any particular case. On this aspect it is desirable to advert to the decision of the Judicial Committee in Sardar Gurbakhsh v. Gurdial Singh, AIR 1927 PC 230 which pay be relied on. The question therein "elated to the succession to a jaghirdar who died leaving two widows, the elder childless and the younger with only a daughter and was, whether a posthumous son was born to the younger. According to the law relating to the jaghir, failing a son, the estate would fall to a collateral male relative. Gulbaksh, who claimed the estate, apprehensive of any spurious son being put forward, lodged a petition before the Collector that the younger widow may be medically examined by a doctor as a false report of pregnancy had been made in the mutation register and advanced pregnancy had been claimed for her. But she disappeared from the scene and could not be traced and ultimately went outside British territory. When the investigation before the Collector proceeded a report was being circulated that a son had been born. The attempt of Gurbaksh for a high officer to be sent and enquiry made failed as the authorities could not use force beyond the British frontier. Long afterwards the junior widow appeared with a boy as the heir to the estate. It will be noticed that the enquiry that was being proceeded with till then was either administrative or in the revenue Courts. With reference to this, the Judicial Committee remarked at page 233:
"It appears clear to their Lordships that she was purposely keeping out of the way, not only from August 1915, when she disappeared, but from October, when her alleged son was born. This further delay from October to March about five months was also deliberate. It was for the purpose of preventing the possibility of any mredical examination of her after such a long period throwing light upon the question of birth of a child by her in October."
When referring to the conclusions of the Subordinate Judge in the civil suit that followed the proceedings on the administrative side, the Privy Council observes at page 209:
"The disappearance of Bhagwan (junior widow) and the manifest approval of the co-widow, the refusal by her to come to the Court to submit to a medical examination, or even to remain for a reasonable period in her, own old home, but in preference to go outside the jurisdiction of the Court and inside the native state, would in any view have thrown the greatest doubt upon the story of her having given birth to a son as alleged; and then the second feature of the case--her continued absence for a long period after the alleged birth--the whole of this appears to their Lordships to be but part of a transaction which was simply a nefarious plot"
At the trial the junior widow did not go into the box, though present in Court, and referring to this certain observations are made.
"Bhagwan's case had been the subject of prolonged investigation in the revenue Courts, and had been pronounced by them a bogus case. She had appeared and told a story there, and it had not been believed. She was however, also present in this civil suit, the issue in which was the legitimacy of the boy that she was putting forward as the jaghir of the estate. Her non-appearance in answer to the challenge, that is to say, to disclose the actual fact as to her condition shortly after her husband Jawala's death her disappearance into a foreign State, and all the other circumstances mentioned, had been established. If her story were, notwithstanding all this, a true story, it was her bounden duty to give evidence in the suit, telling the whole facts in support of her and her alleged son's case; but she did not. It under advice she did not do so that advice was of the worst description, and worthy of the animadversion above made. But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case."
It must be noticed that the reference to her non-submission to any medical examination is at a stage preceding the civil suit and not before the Civil Court. It is difficult to draw from this that the Judicial Committee have in any way approved compulsory medical examination on the orders of a Civil Court nor do their Lordships of the Judicial Committee indicate that an adverse inference could be made under all circumstances solely on a refusal to be medically examined. Their Lordships were only dealing with the inference to be drawn from all the surrounding circumstances and they do point out that by going into the witness box she could have explained the facts that tell against her. This decision cannot, therefore, be the basis for any conclusion that there could be an order for compulsory medical examination and that an adverse inference should be drawn against the party disobeying the order in every case solely from the disobedience to the order.
(9) I must therefore hold that there is no warrant in the procedure now obtaining in the Civil Courts under the Code for an order for compulsory medical examination of a party against the wish of the party. Of course, the dismissal of the petition filed by the respondent, in the circumstances will not preclude the parties later applying to the Court for appropriate orders as indicated earlier if so advised. However, the order in the present form cannot stand and has to be discharged as beyond the powers of the Election Court, under the Panchayat Act.
(10) The revision is therefore, allowed, and the order in I. A. 219 of 1965 set aside. The parties will bear their respective costs here and in the Court below.
(11) Revision allowed.