Q. Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference discuss the law relating to D.N.A. testing of child in the womb to establish its paternity.

Model Answer:

Right to Privacy

The right to privacy is intrinsic to life and personal liberty, inherently protected under Article 21 of the Indian Constitution. This interpretation has evolved through judicial pronouncements:

• In R. Rajagopal v. State of Tamil Nadu (1994), the Supreme Court recognized the right to privacy as part of the right to “life” and “personal liberty” guaranteed under Article 21.

• The landmark judgment in Justice K.S. Puttaswamy v. Union of India (2017) conclusively established privacy as a fundamental right, deriving it from Article 21.

• The court held that privacy is essential for the exercise of personal liberty and the preservation of human dignity, thus intrinsically linked to the core of Article 21.

Regarding DNA testing of a child in the womb to establish paternity:

1. Legal Framework:
• No specific legislation governs prenatal paternity testing in India.
• The DNA Technology (Use and Application) Regulation Bill, if passed, may provide some guidelines.

2. Judicial Stance:
• In Bhabani Prasad Jena v. Orissa State Commission for Women (2010), the Supreme Court held that DNA tests should not be ordered routinely, but only when a strong prima facie case is made out.

3. Privacy Concerns:
• Prenatal paternity testing involves the privacy rights of the mother, the unborn child, and the alleged father.
• It raises ethical questions about the child’s right to privacy even before birth.

4. Balancing Rights:
• Courts must balance the right to privacy against the right to know one’s biological parentage.
• The child’s best interests are often given paramount importance in such decisions.

5. Consent and Counseling:
• Informed consent of the mother is crucial for prenatal testing.
• Proper counseling should be provided to all parties involved due to potential psychological impacts.

Conclusion: While privacy is fundamental under Article 21, its application in prenatal paternity testing requires careful legal and ethical consideration.