Q12.  Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference discuss the law relating to D.N.A. testing of a child in the womb to establish its paternity.

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Introduction

The right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution. This was firmly established by the Supreme Court of India in the landmark judgment of Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017). The court held that the right to privacy is a fundamental right, which is protected under the broader ambit of Article 21.

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Right to Privacy intrinsic in Article 21:

• Article 21 of the Indian Constitution states, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” 
• The Supreme Court of India has interpreted this Article to encompass the Right to Privacy, establishing it as intrinsic to personal liberty and dignity. 
• This right protects individuals from unwarranted intrusion into their personal lives, asserting that privacy is essential for the exercise of other fundamental rights, including those related to marriage, family, and procreation.
• For instance, the Court's ruling in Navtej Singh Johar vs. Union of India (2018) highlighted the importance of personal autonomy and privacy in the context of sexual orientation, reinforcing that every individual has the right to make decisions about their body and relationships.

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Law regarding DNA Testing and Right to Privacy:

• Legal Framework:
  • Indian Evidence Act, 1872: Section 112 of the Indian Evidence Act deals with the legitimacy of a child. It presumes that a child born during the continuance of a valid marriage is legitimate unless proven otherwise.
  • Code of Criminal Procedure, 1973: Section 53 and 54 allow for medical examination of the accused and the victim, which can include DNA testing.

• Supreme Court Rulings: The Supreme Court has, in various judgments, balanced the right to privacy with the need for DNA testing to establish paternity.
  • Goutam Kundu vs. State of West Bengal (1993): The Supreme Court held that DNA tests should not be directed as a matter of course and should only be done if it is in the interest of justice.
  • Sharda vs. Dharmpal (2003): The court ruled that a matrimonial court has the power to order a medical examination, including DNA tests, if it is in the interest of justice.
  • Bhabani Prasad Jena vs. Orissa State Commission for Women (2010): The court emphasized that DNA tests should be ordered only when there is a strong prima facie case and the test is indispensable.

‍Balancing Privacy and Justice:

• Consent: Generally, the consent of the individual is required for DNA testing. However, in cases where the paternity of a child is in question, the court may order a DNA test even without consent if it is in the best interest of the child and justice.
• Best Interest of the Child: The child's welfare is paramount. The court may order a DNA test to establish paternity to ensure the child's right to maintenance and inheritance.
• Confidentiality: The results of DNA tests are sensitive and should be kept confidential to protect the privacy of the individuals involved.

Conclusion

The right to privacy is a fundamental right under Article 21 of the Indian Constitution. However, this right is not absolute and can be subject to reasonable restrictions, especially in the interest of justice. DNA testing to establish paternity involves a delicate balance between the right to privacy and the need for justice. Courts have the discretion to order DNA tests in cases where it is necessary to resolve disputes related to paternity, provided it is done in a manner that respects the privacy and dignity of the individuals involved.

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