Says that the right to privacy necessitates protecting people from intrusions into private domains
Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ruled that a DNA test without the consent of a person constitutes a clear violation of his fundamental rights to freedom and privacy as guaranteed in Sections 9 and 14 of the Constitution.
“The collection of DNA from an individual without due process of law fundamentally violates the right to privacy, autonomy and personal liberty as it involves extraction of extremely sensitive personal information,” said a 6-page judgment authored by Justice Muhammad Hasham Khan Kakar.
Through this order, an SC bench headed by Justice Kakar set aside a Lahore High Court (LHC) judgment which had upheld the decision of an anti-corruption court in Sahiwal.
The anti-corruption court had directed the petitioner to arrange his DNA to establish his parentage in a case related to forgery and corruption of educational documents with the aim of depriving him of his rightful inheritance.
The order noted with serious concern that the high court in the ruling upheld the directive for a DNA test without citing any specific statutory provision authorizing the compulsory performance of a DNA test on a person without their express consent, in connection with a private complaint.
“We are aware of certain provisions contained in Sections 53A, 164A and 164B of the Code of Criminal Procedure, 1898, which require the conduct of such DNA tests and other connected tests.
“But they are carried out only in cases of charges of committing an offense of rape, unnatural offense or sexual abuse or an attempt to commit rape, unnatural offense or sexual abuse under Sections 376, 377 and 377B of the Pakistan Penal Code, 1860 are in proportion to the facts and circumstances.”
The judgment observed that the parentage of the petitioner in the present case has been presumed to be contested by a special judge of an anti-corruption court without issuing process under Section 202 of the Code of Criminal Procedure (CrPC).
“We find that the order for a mandatory DNA test without consent under such circumstances constitutes a clear violation of the petitioner’s fundamental rights to liberty and privacy as expressly guaranteed by Articles 9 and 14 of the Constitution,” it said.
The judgment noted that the right to personal sanctuary, recognized as the right to privacy, necessitates that individuals be protected from undue intrusion into their private domains.
“This protection extends to personal data, communications, family life and all facets of the personal sphere against unjustified interference by governmental or private entities.
“Although the right to privacy is inextricably linked with the rights to existence and autonomy, the right to privacy has acquired the status of a separate and independent fundamental guarantee under Article 14 of our Constitution.
“Privacy signifies the ultimate honor of the human person, representing a zone of choice and individuality. It ensures determination and allows individuals to make intimate decisions without fear of surveillance or unauthorized disclosure.”
The judgment further states that interventions create the significant risk of misuse or unauthorized dissemination of the individual’s genetic plan, which could potentially have significant negative consequences for their personal and professional status.
“The right to liberty, enshrined in Article 9 of the Constitution, goes beyond mere immunity from physical detention; it guarantees freedom from all arbitrary or purposeless restrictions on individual autonomy that are incompatible with the public interest and legislative provisions.
“Requiring DNA testing of anyone at any time, particularly to determine parentage, interferes with these rights, as genetic information contains extensive data regarding parentage and physical characteristics.
“Furthermore, both fundamental rights protect bodily integrity, ensure a person’s power to govern their physical self and refuse unsolicited medical procedures.”
The court also said that the imposition of a court order for a DNA test, without legal backing and consent, constitutes an act that goes beyond mere procedural irregularity, inflicting far-reaching detrimental effects on the life and dignity of the individual.
“The unnecessary public challenge of a person’s paternity inherently results in societal embarrassment, humiliation and severe psychological stigmatization.
“The issue of contesting paternity can never be taken lightly, as the unnecessary compulsion to submit a person to a DNA test inherently raises serious allegations about the mother’s character and moral integrity that this Court finds impermissible.
“Such legal action, lacking the necessary legal basis, constitutes an unwarranted intrusion into the sanctity of family life and a woman’s reputation, which will never be tolerated under the guise of a legal process.
“Such an invasive procedure, especially when it lacks legal basis, directly contradicts the fundamental guarantee of the inviolability of a person’s dignity enshrined in Article 14 of the Constitution.
“By subjecting a person to public scrutiny of the intimate aspect of his parentage without due process, the courts effectively sanction an arbitrary restriction of his personal sphere, thereby violating his right to liberty under Article 9 of the Constitution and causing irreparable damage to his reputation and standing in society.”
The judgment held that the courts below erred while directing the petitioner’s DNA test. The SC ordered that the special judge of the anti-corruption court should proceed with the case strictly in accordance with the law without requiring such a DNA test.
