DNA Testing & Right to privacy :

In Indian Context, it is important to note that India is a signatory to International Covenant on Civil and
Political Rights, 1966, and right to privacy is derived from Article 21 of the Constitution and from
Directive Principles of State Policy and it was held in People's Union for Civil Liberties v. Union of
India,1 that right to privacy enshrined in Article 21 cannot be curtailed except according to procedure
established by law.

No one shall be subject to arbitrary or unlawful interference with his privacy, family and home, or
correspondence, nor to unlawful attacks on his honor and reputation; does everyone have the right to the
protection of the law against such interference or attacks.2

In the famous case in relation to DNA investigation Sharda v. Dharmpal, the Hon'ble Supreme Court
discussed the right to privacy in a systematic chronological order. The right to privacy has been
developed by the Supreme Court over a period of time. In M.P. Sharma v. Satish Chandra, A.I.R. 1954
S.C. 297 (306) in the context of search and seizure, the Court observed that:

"When the Constitution makers have thought fit not to subject such regulation to constitutional
limitation by recognition of a fundamental right to privacy, analogous to the American Fourth
Amendment, we have no justification to import it, into a totally different fundamental right, by some
process of strained construction."

Similarly in Kharak Singh v. State of Uttar Pradesh3, the majority judgment observed thus:

"The right of privacy is not a guaranteed right under our Constitution and, therefore, the attempt to
ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an
infringement of fundamental right guaranteed under Part III."

In Govind v. State of Madhya Pradesh4, it was held: "Assuming that the fundamental rights explicitly
guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right
that fundamental right must be subject to restriction on the basis of compelling public interest."

1
A.I.R. 1997 SC 568 (575).
2
Article 17, International Covenant on Civil and Political Rights, 1966.
3
A.I.R. 1963 S.C. 1295.
4
A.I.R. 1975 S.C. 1378.
The right to privacy will necessarily have to go through a process of a case by case development.
Therefore, even assuming that the right to personal liberty, the right to move freely throughout the
territory of India and the freedom of speech create an independent right of privacy as an emanation from
them which one can characterize as a fundamental right, we do not think the right is absolute.

Having outlined the law relating to right to privacy in India, it is relevant in this context to notice that
certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain
medical or other tests.

By way of example, we may refer to sections 185, 202, 203, 204 of the Motor Vehicle Act; sections 53
and 54 of the Code of Criminal Procedure and section 3 of the Identification of Prisoners Act,1920.
Reference in this connection may also be made to sections 269 and 270 of the Indian Penal Code.
Constitutionality of these laws, if challenge is thrown, may be upheld.

In M. Vijaya v. The Chairman, Singareni Collieries 5, the Court, upon a detailed discussion of the
competing rights of a private party and public right with reference to right to privacy of a person
suspected of suffering from AIDS, held: "There is an apparent conflict between the right to privacy of a
person suspected of HIV not to submit himself forcibly for medical examination and the power and duty
of the State to identity HIV infected persons for the purpose of stopping further transmission of the
virus. In the interests of the general public, it is necessary for the State to identity HIV positive cases and
any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the
Constitution, the State was under an obligation to take all steps for the improvement of the public health.
A law designed to achieve this object, if fair and reasonable, in our opinion will not be in breach of
Article 21 of the Constitution of India. It is well-settled that right to life guaranteed under Article 21 is
not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life
includes right to healthy life."

In Rohit Shekhar v. N.D. Tiwari, 2012 case, Rohit Shekhar had claimed to be the biological his son;
however, N.D. Tiwari denied undergoing such test and stated that it would be the violation of his right to
privacy and would cause him public humiliation. However, Supreme Court rejected this point stating
when the result of the test would not be revealed to anyone and it would under a sealed envelope, there

5
A.I.R. 2001 A.P. 502.
is no point of getting humiliated. Further, Supreme Court refused to dismiss the Delhi High court’s
decision and ordered Congress leader N.D. Tiwari to undergo the DNA test.

In Priyadarshini Mattoo, 2010 case, the DNA from seminal discharge of the accused which were found
on the undergarments of the victim and her private parts were compared with the DNA of the accused
and they matched conclusively.

The latest Nirbhaya rape case, the Delhi’s most horrifying sexual assault, gang rape, and murder; the
forensic and medical evidence including bloodstained clothes of the accused DNA samples matched
with that of Nirbhaya’s, thus along with other evidences helped solving the case.

Thus, it is clear from various decisions delivered by the Supreme Court from time to time that the Right
to Life and Personal Liberty which has been guaranteed under our Indian Constitutions are not absolute
ones and can be subject to some restriction. Based on this, the constitutionality of the laws affecting
Right to Life and Personal Liberty is upheld by the Supreme Court which includes medical examination
on the basis which various courts across the country have allowed DNA technology to be used in the
investigation and in producing evidence.

Statutory Recognitions :
The Identification of Prisoners Act, 1920 enables the Investigation Officers to collect finger print
impressions, foot-print impressions from the suspect. Sec. 5 of the Act empowers for magistrate to order
a person to be measured or photographed. Here measurement means and includes finger impressions and
footprint impressions. But this Act does not empower a Magistrate to order a person for collection of his
X-ray photography or ultra-sonography in case the suspect swallows an important material which may
be a property of theft or other material which is necessary for the purpose of investigation. This Act also
remains silent for collecting other body fluids from the body of the suspect such as blood, semen, urine
etc. for DNA analysis.

In this respect sections 53, 53A, 311A and 313 of the Code of Criminal Procedure, 1973, are relevant: