Nishka Kapoor, NALSAR University of Law, Hyderabad.
Recently, the Supreme Court ruled that a forced DNA test violates the right to privacy and personal liberty. The decision came in a property dispute case in which the Punjab & Haryana High Court in 2019 judgment ordered the plaintiff to undergo a DNA test to prove his claim of share in his biological parents’ property.
In 2019, a case was filed by Ashok Kumar against his sisters in Punjab & Haryana High Court related to a paternal property dispute, wherein sisters denied that the man was their brother and said that he was not the son of their parents. The man was directed by the court to undergo a DNA test to claim the rights over the property.
DNA is unique for every person and can be used to identify a person’s identity. DNA tests are done in criminal, civil, and medical matters. They are done around the world to majorly identify the susceptibility of a disease, to identify victims and perpetrators in legal cases, and to establish parentage of children relationship, and these tests are done with the use of technology.
The use of DNA technology has raised some of the major concerns related to consent for providing bodily substances privacy and data security. In India use of DNA technology was unregulated and so the government proposed DNA Technology (Use and Application) Regulation Bill, 2019
According to the DNA Technology (Use and Application) Regulation Bill, 2019, it is mandatory to obtain written consent before DNA samples of suspects under trial, crime victims, and missing or unidentified people are collected. While the law specifies safeguards for criminal cases, there are no equivalent safeguards for civil and medical cases, such as parentage disputes, medical negligence, establishing identity, and so on and these issues raise a major concern related to privacy.
The law makes no mention of an individual's consent is required when providing DNA samples in civil matters such as paternity cases. The main and most important reason for obtaining consent before collecting a sample is that DNA not only establishes a person's identity but also their genetic history, such as physical and medical characteristics, and collecting such information may jeopardize their privacy and data security, so obtaining consent is a way to protect against DNA misuse.
In March 2019, the plaintiff was forced by the Punjab and Haryana High Court to get a DNA test done in order to claim his share in his parent’s property, to which the petitioner opposed saying that he had provided adequate evidence to support his claim and approached the Supreme Court to invade in this matter.
Recently in Oct 2021, Supreme Court gave its verdict on the matter, a bench of Justices R Subhash Reddy and Hrishikesh Roy heard the matter and said that cases forcing an unwilling party to undergo a DNA test undermine its right to privacy and personal liberty. It said that DNA tests should be carried out only in special cases with the consent of the person affected. The bench further added that if other evidence is available to determine the relationship with cases, DNA tests should be avoided to prevent the personal liberty and privacy of the person as mentioned under Article 21 of the Indian Constitution.
Moreover, Supreme Court referred to the KS Puttaswamy v. Union of India case which recognized the right to privacy as a fundamental right under Article 21 of the Constitution of India and held that the proportionality test which was established in the case could be used to determine if a person can be forced to take a DNA test.
The Supreme Court further added that courts should examine the legitimacy of the proportionality tests such as whether it is arbitrary or discriminatory, and how it will affect the person, implying that DNA tests should be conducted on a justifiable basis.
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