Deoxyribonucleic Acid (DNA) was first described by scientists Francis HC Crick and James D Watson in 1953. It is a genetic blueprint determining the biological characteristics of a person. It is a hereditary material in humans which is located in the cell nucleus of a human body. DNA testing is a laboratory process where DNA is extracted from a human (such as hair, semen, blood) and is matched against the DNA in question. This test is even used for paternity tests. The overview of DNA technology is being alleged to pose a severe challenge to some lawful rights of an individual, such as 'Right to privacy' and 'Right against Self-incrimination.' And this is the most crucial reason why courts sometimes are unwilling to accept the evidence-based on DNA technology.
Section 112 of the Act deals with the presumption of the legitimacy of a child. The necessary conditions for the presumption to arise are:
Though the section nowhere mentions the DNA testing, the question arises whether DNA testing is a conclusive test for the determination of paternity. It was stated in the case of Kamti Devi v. Poshi Ram that conclusive presumption under the section cannot be thrown out by DNA test, and further, non-access between the mother and the man has to be proved.
The right to privacy is derived from Article 21of the Indian Constitution. Yet, from time to time, the same question is raised whether ‘ Right to Privacy' is included in article 21 or not.
While in the case of MP Sharma v. Satish Chandra, right to privacy as a fundamental right has been denied by the Supreme Court where it was clearly stated,
…When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognizing a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification for importing it, into a different fundamental right, by some process of strained construction.
A similar judgment was held in Kharak Singh v. State of UP. However, there have been judicial pronouncements where the Court has stated that the right to privacy is an integral right of a human being and enshrined under article 21. But it may not be absolute and can be imposed with certain restrictions as the circumstances may be.
In the case of Sadashiv Mallikarjun Khedarkar v. Nandini Sadashiv Khedakar, the Court held that the testing of DNA should only be permissible in the direction of the Court no person shall be forced to undergo the same.
In reference to tests such as DNA, the Delhi High Court held that no party to a legal proceeding could be subjected, on the mere asking of the opposite party, to any such test against his or her will as it will infringe the fundamental right.
In Kamti Devi v. Poshi Ram, the prayer for DNA evidence was rejected, and the Court only relied on the non-access principle.
These tests, such as DNA, include high specificity, and hence, it becomes difficult for an individual to undergo these tests. The lack of knowledge about the process of the test and also the fear, anxiety are the main reasons for the non-cooperation and refusal of the test. The question regarding paternity arose in Gautam Kundu v. State of West Bengal , where the courts explicitly stated that no person should be compelled to give blood samples against his/her will. However, in Rohit Shekhar v. Narayan Dutt Tiwari & Ors., the Supreme Court held that "a person can be forced to undertake the test for the reason that the valuable right of the party cannot be taken away by asking the said party to be satisfied with comparatively week adverse inference."
In Naveen Krishna Bothireddy v. State of TelanganaThe accused was directed to undergo medical tests and stated that it does not violate Article 20(3) of the Constitution.
In a very recent case, the Court held that depending on the facts and circumstances of the case; it would be allowable for the Court to direct the DNA examination to determine the authenticity of the claim made in a case. The reason is that the legitimacy of the child should not be put to risk.
In the criminal administration of justice, a DNA test is an advantage, but it has been declared that this test against human dignity, especially of child and woman. It is a matter of the fact that this particular test should exist for the sake of justice, truth, and dignity of an innocent person and transparency of judicial administration. Therefore, it should be an essential part of the Indian judiciary. Hence, appropriate legislation in the name of The DNA Profiling Bill 2007 should come up, which covers the broad aspect of DNA regarding the criminal case.
The development has taken place in various fields in this century. One of them is in the field of medicine. Over recent years surrogacy has become the best and most viable option for couples and persons who wish to be single parents.
This article is an effort and aims to explore the different provisions in India between the contract of Indemnity and Guarantee.