Model Answer
0 min readIntroduction
The Right to Privacy, once considered a mere common law right, has been firmly established as an intrinsic and inalienable part of the Right to Life and Personal Liberty under Article 21 of the Indian Constitution. This landmark recognition came with the Supreme Court’s judgment in *K.S. Puttaswamy v. Union of India* (2017), which declared privacy a fundamental right. This right encompasses not only physical space but also informational privacy – the right to control one’s own narrative and personal data. The question of balancing this right with legitimate state interests, such as establishing paternity, becomes particularly sensitive when it involves pre-natal DNA testing, raising complex legal and ethical dilemmas.
The Right to Privacy and Article 21
Article 21 of the Constitution guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court in *Puttaswamy* held that privacy is not merely a negative right to be left alone, but also a positive right to control one’s own life and make autonomous decisions. This includes the right to bodily integrity, informational privacy, and decisional autonomy. The judgment recognized that privacy is a multifaceted right, essential for human dignity and the exercise of other fundamental rights.
Legal Framework for DNA Testing
In India, the legal framework governing DNA testing is fragmented. There isn’t a single comprehensive law. Key provisions are found in:
- Code of Criminal Procedure (CrPC): Section 53 and 53A allow for the collection of bodily samples, including DNA, for forensic purposes with the permission of a magistrate.
- Civil Procedure Code (CPC): Courts can order DNA tests in civil matters like paternity disputes, but the power is exercised cautiously.
- The Biological Diversity Act, 2002: Addresses the regulation of access to biological resources and associated knowledge, which has implications for genetic information.
- Draft DNA Technology (Use and Application) Regulation Bill, 2019 (currently not law): Aims to establish a national DNA database and regulate the use of DNA technology for identification purposes.
DNA Testing of a Child in the Womb: Paternity Disputes
The issue of DNA testing of a child in the womb to establish paternity is highly contentious. While courts have, in certain cases, permitted such tests, the practice raises significant privacy concerns.
Arguments in Favor of Prenatal Paternity Testing:
- Child’s Right to Know Parentage: Some argue that a child has a right to know their biological father, which can be crucial for inheritance, medical history, and emotional well-being.
- Avoiding Future Disputes: Establishing paternity early can prevent protracted legal battles and emotional distress for all parties involved.
- Maintenance and Support: Determining paternity allows for the establishment of legal obligations for financial support and maintenance.
Privacy Concerns and Legal Challenges:
- Violation of Bodily Integrity: Prenatal DNA testing involves invasive procedures (like amniocentesis or chorionic villus sampling) that carry risks to the fetus and the mother, potentially violating their bodily integrity.
- Informational Privacy: The genetic information obtained is highly sensitive and personal. Its misuse or unauthorized disclosure could have serious consequences.
- Right to Reproductive Autonomy: Forcing a woman to undergo prenatal paternity testing can infringe upon her reproductive autonomy and right to make decisions about her body.
- Potential for Sex-Selective Abortion: The knowledge of the child’s sex obtained during prenatal testing could lead to sex-selective abortion, which is illegal in India.
Balancing Competing Interests
Courts have generally adopted a cautious approach, allowing prenatal paternity tests only in exceptional circumstances where compelling reasons exist, and the mother’s consent is freely given. The principle of proportionality is crucial – the benefits of the test must outweigh the risks and potential violations of privacy. The Supreme Court has emphasized that such tests should be ordered only as a last resort, after exhausting all other available means of establishing paternity.
The absence of a comprehensive DNA regulation law adds to the complexity. The proposed DNA Technology (Use and Application) Regulation Bill, 2019, if enacted, could provide a clearer legal framework for regulating DNA testing and protecting privacy, but its provisions regarding data storage and access need careful scrutiny.
Conclusion
The Right to Privacy, as enshrined under Article 21, is a cornerstone of individual liberty in India. While establishing paternity is a legitimate state interest, it must be balanced against the fundamental right to privacy, particularly in the sensitive context of prenatal DNA testing. Courts must continue to exercise caution, ensuring that such tests are ordered only in exceptional circumstances, with informed consent, and with due regard for the potential risks and ethical implications. A robust legal framework, like the proposed DNA Technology Bill, is crucial to safeguard privacy and prevent the misuse of genetic information.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.