Forcing party to undergo DNA test against will impinges on personal liberty and right to privacy

This article is written by Rithika Lal Thayat, who is a Final year law student at Government Law College Kozhikode. She is also the Chief Legal Advisor at EW Sells and Legal Book Keeper of Expectation Walkers (NGO). The author also works as Co-ordinator (Editorial Board) at The Legal Boffin, Placement Cell Committee member at Government Law College, Kozhikode as well as Editor trainee at ljrfvoice.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The concept of Privacy and Personal Liberty has been a bone of contention for eons. The contention being what constitutes a violation of privacy or restriction of liberty and what doesn’t. The judiciary is well equipped in laying out concrete and absolute directions when it comes to Article 21 of the Indian Constitution that embodies the fundamental right of “Right to Life and Personal Liberty” and brings within its ambit Right to Privacy. But does forcing a party to undergo a DNA test against their will impinge on personal liberty and right to privacy?

DNA – Deoxyribonucleic Acid analysis also known as DNA Profiling/ Genetic is a method used by Agencies to determine one’s lineage, ancestry, medical history, etc.¹ Despite having the chances of being misused or used improperly that can cause serious harm to individuals and society as a whole, DNA analysis is one of the most reliable sources of evidence.

When it comes to the question of whether forcing a person to undergo DNA Test against their will constitutes a violation of their Right to Privacy, we must refer to the stellar and remarkable judgment of the Supreme Court in the case of Ashok Kumar vs. Raj Gupta², wherein the apex court held that where the plaintiff is unwilling to undergo a DNA Test, coercing him otherwise amounts to violation of his right to privacy and infringes upon his personal liberty. Under the circumstances when there is an availability of alternate evidence to prove or dispute the relationship, the Court should refrain from ordering the blood test.

Citing a plethora of case laws, the apex court drew attention to various facets involving the sensitive nature of requesting a DNA test that can lead to inevitable consequences of confidential information falling into the wrong hands. Until and unless there is a prima facie case and a careful analysis of the interests of both parties it needs to be checked if such a direction will be in the interest of justice to satisfy the imminent need and the quest for truth³ involving the social and cultural implications involved therein.

The bench held that the question as to whether a person can be impelled to undergo a DNA test can be done by considering the test of proportionality laid down in the case of Justice K S Puttaswamy vs. Union of India⁴, where Right to Privacy was held to be a fundamental right under Article 21 of the Indian Constitution. The court should therefore check whether the claim in asking the party to undergo such a test is legitimate and not arbitrary or prejudicial owing to the impact it may have on the party upon encroachment of their privacy.

In the present case of Ashok Kumar vs. Raj Gupta⁵, however, the claim was not legitimate as the 5 defendants requested this as a last resort in the form of a declaratory suit and by then the plaintiff had presented more than sufficient documents as evidence with regards to the proof of his relationship with the deceased parents and sworn affidavits that negated the need for a DNA test.

In cases where DNA profiling becomes a pertinent evidence integral to proving or disproving a particular fact it must be done so with proper care in a methodological way that ensures that except for confirming the identity of the individual, it is stored safely away from prying eyes.

The DNA Technology (Use and Application) Regulation Bill 2019 is supposed to regulate the collection and storage of case sensitive data all the while protecting the privacy of the individual by establishing a DNA Regulatory Board, acquiring written consent along with a method for removal of DNA Profiles.

To conclude, the prerequisite of needing a DNA Test to prove or disprove a fact has to be dealt with careful hands and needs to be solicited as a last resort in the absence of any other evidence, not only because of the sensitive information that’s revealed as a part of this test, but also owing to the fact that it would be a gross violation of a person’s right to privacy, which is why it is pertinent that the strict guidelines issued by the DNA Commission constituted by the International Society for Forensic Genetics (IFSG) is followed.

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