It says that the right to privacy requires protecting people from the invasion of private domains
Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ruled that a DNA test without the consent of an individual constitutes a clear violation of his fundamental rights to liberty and privacy guaranteed under Articles 9 and 14 of the Constitution.
“Collection of an individual’s DNA without due process of law fundamentally violates the rights to privacy, autonomy and personal freedom as it involves the extraction of extremely sensitive personal information,” said a six-page judgment written by Justice Muhammad Hasham Khan Kakar.
Through this order, an SC division bench headed by Justice Kakar set aside a judgment of the Lahore High Court (LHC) that had upheld the decision of an anti-graft court in Sahiwal.
The anti-graft court had ordered the petitioner to arrange his DNA to determine his parentage in a matter related to forgery and corruption of educational documents with the intention of depriving him of his rightful inheritance.
The order noted with serious concern that the high court, in the order, upheld the directive for a DNA test without citing any specific legal provision authorizing the compulsory execution of a DNA test on an individual without his express consent, in the context of a private complaint procedure.
“We are aware of certain provisions contained in sections 53A, 164A and 164B of the Code of Criminal Procedure, 1898 requiring the conduct of such DNA tests and other related tests.
“However, they are carried out only in cases of charges of commission of the 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 and the facts and circumstances in the present case are completely different.”
The judgment noted that in the present case, the paternity of the petitioner is presumed to have been questioned by a special judge of an anti-graft court without issuing proceedings under section 202 of the Code of Criminal Procedure (CrPC).
“We consider that the order mandating mandatory DNA testing without consent in such circumstances constitutes a clear infringement of the petitioner’s fundamental rights to liberty and privacy, explicitly guaranteed by Articles 9 and 14 of the Constitution,” it said.
The ruling noted that the right to personal sanctuary, recognized as the right to privacy, requires protecting people from improper invasion of their private domains.
“This protection extends to personal data, communications, family life and all facets of the personal sphere against unjustified interference by state or private entities.
“While intrinsically linked to the rights of existence and autonomy, the right to privacy has achieved the status of a distinct and autonomous fundamental guarantee under Article 14 of our Constitution.
“Privacy means the supreme honor of the human person and represents a zone of choice and individuality. It guarantees determination and allows people to make intimate decisions without fear of surveillance or unauthorized disclosure.”
The ruling further states that the invasion creates a significant risk of misapplication or unauthorized dissemination of the individual’s genetic blueprint, which could produce substantial negative ramifications for his or her personal and professional standing.
“The right to liberty, enshrined in Article 9 of the Constitution, goes beyond mere immunity from physical detention; it guarantees liberty from all arbitrary or useless restrictions on individual autonomy that are incompatible with the public interest and legislative provisions.
“The demand for DNA testing by anyone at any stage, particularly to determine paternity, invades these rights, since genetic information contains complete data on lineage and physical characteristics.
“Furthermore, both fundamental rights safeguard bodily integrity, ensuring the power of the individual to manage his or her physical self and refuse unsolicited medical procedures.”
The court also said that the imposition of a court order for a DNA test, without legal support or consent, constitutes an act that goes beyond a mere procedural irregularity, and inflicts far-reaching detrimental impacts on the life and dignity of the individual.
“Unnecessary public challenge to a person’s paternity inherently results in social shame, humiliation and severe psychological stigma.
“The issue of challenging paternity can never be taken lightly, as the unnecessary compulsion to subject an individual to DNA testing inherently raises serious allegations about the character and moral integrity of the mother, which this court finds inadmissible.
“Such a judicial act, which lacks the necessary legal basis, constitutes an unjustified intrusion into the sanctity of family life and a woman’s reputation, which should never be tolerated under the guise of a legal process.
“Such an invasive procedure, especially when it lacks a legal basis, directly contravenes the fundamental guarantee of the inviolability of the dignity of the person enshrined in article 14 of the Constitution.
“By subjecting an individual to public scrutiny over the intimate aspect of his kinship 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 harm to his reputation and standing within the community.”
The ruling held that the lower courts erred in ordering DNA testing of the petitioner. The SC ordered the special judge of the anti-graft court to pursue the matter strictly in accordance with the law without demanding such DNA test.
