Pakistan’s Supreme Court has held that the DNA test for identifying genetic relationships in civil cases was not permissible without the consent of the persons concerned since such procedures interfere with their right to privacy.
“We are aware of certain provisions of the criminal law, which permit DNA test of an accused person without his consent, but no civil law allows this test in civil cases without the consent of the persons concerned,” emphasised Justice Syed Mansoor Ali Shah in a judgement.
The judgement came in an appeal of Muhammad Nawaz against a Sept 2, 2019, Lahore High Court judgement which had upheld a decision of a revision court allowing the DNA test of Taj Din and his wife Zubaida Bibi as well as of the petitioner to determine parentage.
The controversy at hand revolves around sanctioning of a gift mutation by Muhammad Hussain, now deceased, in favour of petitioner Muhammad Nawaz but the former’s nephew challenged the gift citing reasons that their uncle died issueless and that the petitioner was not his son but rather got sanctioned the gift fraudulently.
During the trial, the respondent (nephew) made an application requesting a DNA test after accusing the petitioner as the son of Taj Din and Zubaida Bibi.
The trial court dismissed the application on Feb 3, 2010, but the revisional court on a petition of the respondents allowed the application which was also upheld by the high court.
A two-judge bench consisting of Justice Shah and Justice Jamal Khan Mandokhail took up the appeal and observed that DNA testing had raised significant concerns regarding the right to liberty and privacy.
“As DNA contains a wealth of personal information about an individual, such as their genetic predispositions, familial relationships and ethnicity, its collection, storage, and use have implications for privacy rights.”
‘RIGHT TO PRIVACY’
The privacy of the home used in Article 14 is not restricted to the physical house of a person but covers the entire treasure of his personal life, as the privacy attaches to the person, not to the place where it is associated, Justice Shah emphasised.
He added that the unauthorised collection of someone’s DNA can be considered a violation of their privacy, autonomy, and freedom because it involves collecting sensitive personal information without their knowledge or consent.
This intrusion can lead to potential misuse or unauthorised disclosure of the individual’s genetic information, which may have significant implications for their personal and professional lives.
While DNA testing can provide vital information for legal and personal reasons, it can also raise privacy concerns when individuals are tested without their knowledge or consent, the judgement explained.
Justice Shah observed that bodily autonomy was protected by fundamental rights and the right to privacy. “Individuals have the right to control their own bodies, make decisions about their healthcare, and refuse unwanted medical interventions,” the ruling said, adding that unauthorised DNA collection could be seen as violating this principle, as it involves taking a sample of an individual’s biological material without their permission.
“These fundamental rights, are subject to the law and can only be interfered with if so regulated by law made by the legislature,” Justice Shah observed.
Further, as per the constitutional command of Article 4 of the constitution, no action detrimental to the liberty, body, or reputation of a person could be taken except in accordance with the law, nor can a person be compelled to do that which the law does not require him to do, it added.
“This being the constitutional mandate, any executive or judicial act taken in respect of the rights to liberty, privacy, body or reputation of a person must be backed by some law,” Justice Shah observed.
In the present case, Justice Shah explained that neither the petitioner nor Taj Din and Zubaida Bibi have given consent for their DNA test. The petitioner has preferred to prove his relationship with the deceased Muhammad Hussain on the basis of other evidence produced by him.
While dismissing the application of the respondents for the DNA test of the petitioner, the trial court had observed that “the matter can easily be ascertained with the evidence available on record”, the judgement said.
The revisional court was thus not legally justified to order a DNA test of the petitioner as well as of Taj Din and his wife Zubaida Bibi, without their consent, Justice Shah observed, adding the high court also committed a legal error that requires correction by this court.
In the end, the Supreme Court held the order of the revisional court lawful and of no legal effect, consequentially restoring the order of the trial court.