SC: DNA Tests Have Potential to Violate Privacy Rights, Can’t be Directed as Matter of Course


Bhuvana Marni

Published on: October 27, 2022 at 15:45 IST

The Supreme Court recently overturned a High Court decision permitting DNA testing to determine the paternity of two kids to support the mother of the children’s claims that she was “forced to cohabit and develop a physical relationship” with her brother-in-law.

This appeal resulted from a dowry harassment case in which the plaintiff had filed a first information report under Sections 498A, 323, and 354 of the Indian Penal Code, 1860, against her husband and his brother.

The Division Bench found that the trial court had “mechanically” granted the complainant’s motion after giving the accused’s appeal.

The trial court had directed the appellants and the children to “give blood samples to a specified hospital for obtaining an expert opinion on DNA fingerprint test” by this order, which ultimately came under the scrutiny of the supreme court.

The Supreme Court’s bench, which was made up of Justices Aniruddha Bose and Vikram Nath, concluded as follows:

“Merely because something is permissible under the law cannot be directed as a matter, of course, to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person.”

“The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion but encompasses the right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests.”

“It could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction. We, accordingly, allow the appeal and set aside the judgment of the High Court.”

Before the appeal goes to the top court, the revisional jurisdiction of the High Court had been invoked.

The High Court upheld the impugned order, holding that the DNA test was legal and did not constitute testimonial compulsion under Sections 53, 53A, and 54 of the Criminal Procedure Code, 1973. Two considerations led the Supreme Court to take two factors:

First, neither the children whose blood samples were ordered to be taken were parties to the proceeding or obliged to have their status examined in the complaint.

The Court observed that this raised doubt on “their legitimacy of being borne to legally wedded parents” and such directions if carried out, had the potential of “exposing them to inheritance-related complication”.

Furthermore, it was noted that the Evidence Act of 1872’s Section 112 protected allegations of this sort.

Second, the proceedings did not raise any issues regarding the children’s paternity.

The Court noted that the paternity of the two children was simply incidental to the charges on which the criminal case was otherwise based and that the core issue was whether the offences under the aforementioned articles had been committed.

These factors, the Court remarked, had been completely ignored by the trial court and the revisional court, who proceeded “as if the children were material objects who could be sent for forensic analysis.”

In coming to this conclusion, the Court heavily relied on Ashok Kumar vs. Raj Gupta and Ors., in which the Supreme Court’s Coordinate Bench approved the “sparing usage” of the DNA fingering test.

Case Title: Inayath Ali & Anr. vs. State of Telangana & Anr. [SLP (Crl) No. 4946/2017]

Related Post