A test case

The Kerala High Court has recently laid down detailed guidelines on the very limited scope of cases where DNA test of children born to rape can be carried out. This is to protect the child in the future, said the Court

By Sujit Bhar

The Kerala High Court recently made it clear that the Court will not entertain pleas for DNA tests of children born to rape and then given for adoption, unless some very stringent requirements are met. Concerned about critical privacy issues in this, the Court issued some guidelines that prevent the violation of the rape victim’s and the child’s right to privacy and also does not cause any emotional imbalance.

The commendable verdict was issued by Justice K Babu. He said in his order that a DNA examination of (the antecedents) of such an adopted child would also defeat the sanctity of adoption. His order makes a lot of sense, so do his guidelines, which are as follows:

“(i) The Courts shall not entertain applications seeking DNA examination of children given in adoption.

“(ii) The Child Welfare Committee shall see that the DNA samples of children given in adoption are taken before the completion of the process of adoption.

“(iii) All agencies or authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.

“(iv) Even in cases where the children were not given in adoption, the Court shall consider the request for a DNA test of the children of the victim only after assessing the principle of ‘eminent need’ and doctrine of proportionality.”

The order came off a special report published by the Victim Rights Centre under the Kerala State Legal Services Authority and the High Court had taken suo motu cognisance of the report to start a case. The report stated that various courts have been directing the collection of blood samples of children given in adoption. It also said that this would violate their right to privacy and also the confidentiality clause in adoption.

The report had also said that these were not normal orders (from the lower courts), but that the courts had issued such orders when the prosecution had pleaded that such was necessary to strengthen their case of rape and penetrative sexual assault. This is an interesting conundrum, in which you are probably damned if you don’t and damned if you do.

The prosecution appeals had resulted in court orders, on the strength of which DNA samples were taken from children born to rape victims who were given in adoption. The report said that these orders of lower courts were contrary to Regulation 48 of the Adoption Regulations, 2022, which deals with the confidentiality of adoption records.

The High Court found a lot of substance in this report and took it up, resulting in this order. The Court appointed advocate Parvathi Menon as the amicus curiae.

What was the High Court’s decision based on? According to the Court, Regulation 48 of the Adoption Regulations issued under the Juvenile Justice (Care and Protection of Children) Act, 2015, aims to protect the confidentiality of the adoption records. The Court also referred to the Juvenile Justice Act, the purpose of which was to ensure the “welfare of adopted children and to maintain the divine concept of adoption”.

The critical concept handled by the Court was that in many cases (this should be in most cases, in real life) adopted children aren’t aware that their biological mother was a rape victim. Against this backdrop, if the bombshell of the truth lands on the child through a DNA test, it could lead to such mental imbalance of the child that his/her life could be over.

That is the dangerous outcome that the Court wanted to protect the child from. 

In this order, the Court referred to Bhabani Prasad Jena vs Orissa State Commi­ssion for Women (2010) in which the Supreme Court had laid down the “eminent need” test before ordering DNA tests of children. Then, there was also the famous privacy case of KS Puttaswamy vs Union of India (2017), in which the top court had stated that the right to privacy was protected as a fundamental right under Article 21 of the Constitution of India. A three-part test of reasonableness and principles of proportionality was laid down by the Court.

Other precedents were also referred to by the High Court in its order. The Court maintained that a paternity test of a child born out of rape was not required to prove an offence of rape and penetrative sexual assault. The  Court made it clear that courts “must exercise their discretion to order DNA tests only if it was essentially needed after due consideration of balancing the interest of all the concerned parties”.

An additional order was issued, which said that adoption orders shall not be displayed on any public portal to ensure the confidentiality of adoption records as per law.

The ban on DNA tests was also applicable for POCSO cases, unless they fulfil the “eminent need” criteria.

That is the sum and substance of this commendable order. It makes sense on many parameters, except for one, which is personal liberty. A child in adoption is always told that he or she has been adopted. There is no law in India which tells the adoptive parents to do that, but every agency, including the official Central Adoption Resource Authority, suggests that the child be told of the adoption as soon as possible. This is to avoid major problems in the future.

However, once the child is a major (18 and above in India), he/she has the right to decide if he or she wants to know the identity of his/her real (biological) father (and mother). No court can prevent him/her from doing that.

That means, the new adult now has the right to have a DNA test conducted. That could lead to problems, especially if there is any way he/she can access prison records where the rapist has been put away. This, anyway, could lead to major mental problems for the kid who has now turned 18.

These are other problems that are bound to happen, and while this current order of the High Court is commendable, there is need for other guidelines to come through, either from courts or from other agencies, that can truly and finally protect the adopted child.