Answer

The right to privacy gained significant attention after the landmark Puttaswamy judgement in 2017, where the Supreme Court of India declared privacy as a fundamental right under Article 21. In the context of DNA testing for paternity determination, recent cases have sparked debates on balancing the right to privacy with the child’s right to know their biological parentage.

Right to Privacy as Intrinsic to Life and Personal Liberty under Article 21:

• Interconnected with Other Fundamental Rights: The right to privacy is essential for the enjoyment of various other fundamental rights such as freedom of speech and expression (Article 19) and freedom of religion (Article 25). Without privacy, individuals cannot exercise their choices regarding personal beliefs, relationships, and preferences
• Protection of Individual Autonomy: Privacy is central to individual autonomy, which includes decisions about family life, reproductive choices, and personal information. The right to privacy empowers individuals to make decisions regarding their body, health, and private life, free from unnecessary state intervention or public scrutiny, ensuring a dignified existence.
• Preventing Arbitrary State Action: It acts as a safeguard against arbitrary state actions, such as mass surveillance, unlawful data collection, or invasions into personal space. It compels the state to justify any encroachment upon personal privacy on reasonable grounds and ensures such actions follow principles of proportionality and legality.
• Constitutional Protection: The Supreme Court of India, in its Puttaswamy v. Union of India (2017) case, affirmed that the right to privacy is an intrinsic part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution.
• Reproductive Autonomy: Individuals have the right to make decisions regarding reproduction and family life, ensuring personal privacy and control over intimate matters.
• Evolution of Privacy in the Digital Age: In the modern digital world, the right to privacy has evolved to include the protection of personal data and digital information.

Law Relating to DNA Testing of Child in the Womb to Establish Paternity

• Section 112 of Indian Evidence Act: This provision presumes that a child born within a marriage is legitimate unless a DNA test becomes essential to disprove paternity, protecting the family’s privacy and reputation from unnecessary disputes.
  For example: In Goutam Kundu vs. State of West Bengal, the court stressed that DNA tests should be used sparingly.
• DNA Technology (Use and Application) Regulation Bill, 2019: This bill aims to regulate the use of DNA testing for legal and forensic purposes, ensuring that privacy concerns are addressed while allowing the establishment of paternity when legally required.
• Constitutional Security: Any form of DNA testing must comply with constitutional protections under Article 21, ensuring that the right to privacy is respected unless there is a compelling legal reason for testing.
• Preservation of Family Privacy: Courts protect family privacy by ensuring that DNA testing is only ordered when absolutely necessary to resolve legal disputes or paternity issues, preventing undue interference in family matters.
• Consent Requirement: The legal framework mandates informed consent from individuals before conducting a DNA test, ensuring respect for personal liberty and privacy, especially in cases of sensitive family disputes.

Conflict Between Right to Privacy and DNA Testing in Paternity Cases

• Personal Liberty vs. Truth: There is often a conflict between the individual’s right to privacy under Article 21 and the legal need to uncover the biological truth through DNA testing, particularly in paternity disputes.
  For example: The Rohit Shekhar vs. The Narayan Dutt Tiwari case illustrated this conflict, where DNA testing was crucial despite privacy concerns.
• Family Privacy: Ordering DNA tests can interfere with the sanctity of family life, potentially disrupting existing family relationships and creating public exposure, thus conflicting with the right to privacy.
• Right to Know Parentage: The child’s right to know their biological parent can clash with the parent’s right to privacy, leading to a complex balancing of competing rights.
  For example: In ABC vs. State (NCT of Delhi), the court balanced the child’s right with the mother’s privacy.
• Judicial Oversight: Courts must exercise caution in ordering DNA tests, ensuring they do not infringe on privacy rights unless absolutely necessary for legal purposes, such as establishing paternity.
  For example: Courts have often rejected DNA tests when privacy concerns outweigh the legal necessity, as in Banarsi Dass vs. Teeku Dutta.
• Voluntary Consent: Ensuring voluntary consent for DNA testing is crucial in upholding the right to privacy, as forcing a test without proper consent could lead to undue violations of personal liberty.

Balancing Right to Privacy with Other Interests

• Informed Consent: Informed consent is crucial for any DNA testing, as it ensures that the privacy of individuals is respected while addressing the legal need for paternity determination.
• Judicial Scrutiny: Courts must evaluate the necessity of DNA tests on a case-by-case basis, ensuring that privacy is only compromised when legally justified, particularly in sensitive family matters.
• Case-by-case Basis: Resolving conflicts between the right to privacy and paternity determination should be approached individually, ensuring that decisions are based on the specific facts of each case.
• Respect for Dignity: In all paternity disputes involving DNA testing, it is important to ensure that the dignity of all parties, especially the mother, is preserved. This involves avoiding unnecessary public disclosure of sensitive family matters.
• Alternative Dispute Resolution: Encouraging the use of mediation or alternative dispute resolution in family disputes can help resolve paternity issues without requiring DNA tests, thereby safeguarding privacy and maintaining familial harmony.

As Kerala High Court held, “Privacy is the ultimate expression of the sanctity of the individual.” This vision urges the creation of ethical and legal frameworks that uphold both privacy and the right to truth. In reconciling the right to privacy with the legal need for DNA testing in paternity cases, courts must adopt a careful, case-by-case approach

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