SC rules forced DNA testing unlawful

Says right to privacy necessitates shielding people from encroachment into private domains

ISLAMABAD:

The Supreme Court has ruled that a DNA test without consent of an individual constitutes a clear violation of his fundamental rights to liberty and privacy as guaranteed in Articles 9 and 14 of the Constitution.

"The collection of DNA of an individual without due process of law fundamentally violates rights to privacy, autonomy, and personal liberty, as it entails the extraction of extremely sensitive personal information," said a 6-page judgement authored by Justice Muhammad Hasham Khan Kakar.

Through this order, an SC division bench led by Justice Kakar set aside a judgement of the Lahore High Court (LHC) which had upheld the decision of an anti corruption court in Sahiwal.

The anti-corruption court had directed the petitioner to arrange his DNA in order to determine his parentage in a matter related to forgery and corruption of educational documents with the intent to deprive him of his rightful inheritance.

The order noted with serious concern that the high court, in the order, maintained the directive for a DNA test without citing any specific legal provision authorizing the compulsory execution of a DNA test upon an individual without his express consent, in the context of a private complaint proceeding.

"We are mindful of certain provisions contained in sections 53A, 164A and 164B of the Code of Criminal Procedure, 1898 requiring conduct of such DNA tests and other connected tests.

"However, they are conducted only in cases of charges of committing an offence of rape, unnatural offence or sexual abuse or an attempt to commit rape, unnatural offence or sexual abuse under sections 376, 377 and 377B of the Pakistan Penal Code, 1860 and the facts and circumstances in the instant case are entirely different."

The judgement noted that in the instant case, the parentage of the petitioner has been presumed to be disputed by an anti-corruption court's special judge without issuing process under Section 202 of Code of Criminal Procedure (CrPC).

"We find that the order directing a compulsory DNA test without consent in such circumstances constitutes a clear infringement upon the fundamental rights of the petitioner to liberty and privacy, as explicitly guaranteed by Articles 9 and 14 of the Constitution," it said.

The judgement noted that the entitlement to personal sanctuary, recognized as the right to privacy, necessitates shielding individuals from undue encroachment into their private domains.

"This protection extends to personal data, communications, family life, and all facets of the personal sphere against unwarranted interference by state or private entities.

"While intrinsically linked to the rights of existence and autonomy, the right to privacy has attained the status of a distinct and autonomous fundamental guarantee under Article 14 of our Constitution.

"Privacy signifies the ultimate honour of the human person, representing a zone of choice and individuality. It secures determination, allowing individuals to make intimate decisions without apprehension of surveillance or unauthorized disclosure."

The judgement further states that encroachment creates the significant hazard of misapplication or unauthorized dissemination of the individual's genetic blueprint, potentially yielding substantial negative ramifications for their personal and professional standing.

"The right to liberty, anchored in Article 9 of the Constitution, surpasses mere immunity from corporeal detention; it guarantees freedom from all arbitrary or purposeless restraints on individual autonomy which are inconsistent with public interest and legislative enactments.

"The demand of DNA testing by anyone at any stage, particularly to ascertain parentage, encroaches upon these rights, as genetic information contains comprehensive data concerning lineage and physical characteristics.

"Furthermore, both fundamental rights safeguard bodily integrity, securing an individual's power to manage their physical self and reject unsolicited medical procedures."

The court also said that the imposition of a judicial order for a DNA test, without legal backing and consent, constitutes an act that extends beyond a mere procedural irregularity, inflicting far-reaching detrimental impacts on the life and dignity of the individual.

"The unnecessary public challenge to the paternity of a person inherently results in societal embarrassment, humiliation, and severe psychological stigma.

"The matter of challenge to paternity can never be taken lightly as the needless compulsion to submit an individual to a DNA test inherently raises serious allegations concerning the character and moral integrity of the mother, which this court holds to be impermissible.

"Such a judicial act, lacking the requisite legal foundation, constitutes an unwarranted intrusion into the sanctity of family life and the reputation of a woman, which shall never be tolerated under the guise of legal process.

"Such an invasive procedure, particularly when lacking legal foundation, directly contravenes the fundamental guarantee of the inviolability of the dignity of a person enshrined in Article 14 of the Constitution.

"By subjecting an individual to public scrutiny over the intimate aspect of his parentage without due process, the courts effectively sanction an arbitrary restraint on his personal sphere, thereby violating his right to liberty under Article 9 of the Constitution and causing irreparable harm to his reputation and standing within the community."

The judgement held that the courts below have erred while directing DNA tests of the petitioner. The SC ordered that the special judge of the anti-corruption court proceed further with the matter strictly in accordance with the law without requiring such a DNA test.