ISLAMABAD: The Supreme Court held that conducting the DNA test of a person, without his consent, infringes his fundamental rights to liberty and privacy guaranteed by Articles 9 and 14 of the Constitution.
The respondents asserting themselves to be the legal heirs of the deceased Muhammad Hussain, being his nephews, instituted a suit to challenge a gift mutation, purportedly got sanctioned by Muhammad Hussain in favour of the petitioner, wherein, the petitioner (Muhammad Nawaz) was mentioned as the son of Muhammad Hussain.
The respondents asserted in the plaint that their uncle, Muhammad Hussain, died issueless and the petitioner was not his son and the petitioner had got sanctioned gift mutation fraudulently.
The respondents had filed a plaint before the Additional District and Sessions for the DNA test of one, Taj Din and his wife Zubaida Bibi, as well as, of the petitioner to determine the parentage of the petitioner. The Lahore High Court (LHC) has maintained the Sessions Judge order.
The judgment authored by Justice Syed Mansoor Ali Shah noted that neither the petitioner nor the said Taj Din and his wife Zubaida Bibi have given consent for their DNA test. “It is astonishing that the revisional court ordered the DNA test of two persons, namely, Taj Din and his wife Zubaida Bibi, who are not privy to the proceedings of the suit either as a party or witness; who were not heard in the matter; and no law was referred under which such an order could have been made, without their consent,” said the judgment.
“We find that both the revisional court and the High Court have failed to consider that the conducting of the DNA test of a person, without his consent, infringes his fundamental rights to liberty and privacy guaranteed by Articles 9 and 14 of the Constitution.”
The right to privacy involves the protection of individuals from unwarranted intrusion into their personal lives. It safeguards an individual’s personal information, communications, family life, and other aspects of their private sphere from unjustified interference by the government, organisations, or other individuals.
The unauthorised collection of someone’s DNA can be considered a violation of their privacy, autonomy and freedom because it involves the collection of sensitive personal information without their knowledge or consent. This intrusion can lead to potential misuse or unauthorised disclosure of the individual’s genetic information, which may have significant implications for their personal and professional lives.
DNA testing has raised significant concerns regarding the right to liberty and privacy. As DNA contains a wealth of personal information about an individual, such as their genetic predispositions, familial relationships, and ethnicity, its collection, storage, and use have implications for privacy rights. DNA testing is sometimes used to establish paternity or other family relationships. While this can provide important information for legal and personal reasons, it can also raise privacy concerns when individuals are tested without their knowledge or consent.
Bodily autonomy is protected by both fundamental rights; the right to liberty and the right to privacy. Individuals have the right to control their own bodies, make decisions about their healthcare, and refuse unwanted medical interventions. Unauthorized DNA collection could be seen as violating this principle, as it involves taking a sample of an individual’s biological material without their permission.
The court noted that there are certain provisions of criminal law which permit the DNA test of an accused person without his consent, but no civil law has been brought to our notice which allows this test in civil cases without the consent of the person concerned.
The judgment said in a civil case, if the person upon whom the onus to prove his genetic relationship with another person lies, does not give consent for his DNA test, and thus, withholds such evidence, the court may draw an adverse presumption against the claim of such person and presume that such evidence, if produced, would be unfavourable to him, as per Article 129(g) of the Qanun-e-Shahadat, 1984.
“But the court cannot draw such an adverse presumption if a person, who is not a party to the proceedings before it, does not give his consent and present him for his DNA test. Further, the presumption under Article 129(g) of the Qanun-e-Shahadat 1984 being permissive, not obligatory, in nature, the court may or may not draw such presumption in the peculiar facts and circumstances of a case,” noted the judgment.
Copyright Business Recorder, 2023
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