21st September 1998 has been a black hole in the judicial and human rights history of India. This day marked the judicial murder of the very basic natural and humanitarian rights of the persons suffering from HIV/AIDS. Their very right to marry, found a family and procreate was snatched away by the very "sentinel of Justice". This judicial murder did not stop here. It culminated with the snatching away of the right to privacy of the persons with HIV AIDS.

In the year 2003 the supreme court restored the right to marry of the persons with HIV AIDS. This was indeed a welcome step and was received with great appreciation. The supreme court restored the earlier position i.e the persons with HIV AIDS were granted the right to marry and found a family. However one pertinent question, which remains still unanswered- " The right to Privacy and confidentiality of the Persons with HIV AIDS.

In this case analysis mainly I have discussed about the facts of the case and the relevant legal provisions that are applied by the supreme court, and certain issues that are raised before the supreme court in this case and the other recent Judicial pronouncements.

Case Study Of Mr. "X" V Hospital "Z"
On September ,1998
Bench : S.Saghir Ahmad,B.N.Kirpal
In The Supreme Court Of India
Civil Original Jurisdiction
Appeal (Civil) No: 4641 Of 1998
Petitioner : Mr."X"
Respondent: Hospital "Z"
Date Of Judgment: 21/09/1998
Judgement: Saghir Ahmad

Introduction:
Mr. X was a doctor in government service from a well-known family in a North East state of India. He was asked to accompany an uncle of a minister of his state on official duty for surgical treatment to a well-known hospital in the southern part of India. During the surgery the uncle required blood. The complainant was requested to give blood. He was asked to be ready and his blood sample was taken.

However his blood was not used without assigning any reason. After the surgery was over they returned back. Later his marriage was proposed with one Ms .Y .Both families and the minister also approved the match. They were officially engaged. The hospital authorities had no knowledge of the proposed marriage. But without any reason they informed the minister that the Mr .X was HIV +ve. The minister told his sister that the marriage would have to be called off. When Mr .X came to know about it he volunteered for the confirmation test.

On getting the confirmation he returned and marriage was called off. However by this time everyone knew the sero status of Mr .X. He was severely ostracized and had to quit his job and his home state. Being Aggrieved he moved the consumer forum for the breach of duty by disclosure and consequent liability of the hospital. The National consumer Dispute Redressal Commission asked Mr .X to approach a civil court. However he preferred an appeal to the supreme court.

Facts Of The Case:
Infringement of 'Suspended Right to marry' cannot be legally compensated by damages either in Torts or common law, is our answer to the problem raised in this appeal which is based on the peculiar facts of its own.

1. The appellant; after obtaining the Degree of MBBS in 1987 from Jawaharlal Institute of Post Graduate Medical Education and Research. Chandigarh, completed his internship and junior residence at the same college. In June, 1990 he joined the Nagaland State Medical and Health Service as Assistant Surgeon Grade-I.
    
2. Thereafter, the appellant joined the MD Pharmacology Course though he continued in the Nagaland State Service on the condition that he would resume his duties after completing the MD Course. In September, 1991 the appellant joined the further Course of Diploma in Ophthalmology which completed in April, 1993, In August, 1993 he resumed his duties in the Nagaland State Health Service as Assistant Surgeon Grade-I.
    
3. One Itokhu Yepthomi who was ailing from a disease which was provisionally diagnosed as Aortic Annuerism was advised to go to the 'Z' Hospital at Madras and the appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment. For the treatment of the above disease, Itokhu Yepthomi was posted for surgery on May 31, 1995 which, however, was cancelled due to shortage of blood. On June 1, 1995 the appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the result showed that the appellant's blood group was A(+ve). On the next date, namely, on June 2, 1995, Itokhu Yepthomi was operated for Aortic Anuerism and remained in the Hospital till 10th June, 1995 when he was discharged.
    
4. In August, 1995 the appellant proposed marriage to one Ms, 'Y' which was accepted and the marriage was proposed to be held on December 12, 1995. But the marriage was called off on the ground of blood test conducted at the respondent's hospital in which the appellant was found to be HIV(+). The appellant went again to the respondent's hospital at Madras where several tests were conducted and he was found to be HIV(+), Since the marriage had been settled but was subsequently called off, several people including members of the appellant's family and persons belonging to his community became aware of the appellant's HIV(+) status: This resulted in severe criticism of the appellant and he was ostracized by the community. The appellant left Kohima (Nagaland) around November 26, 1995 and started working and residing at Madras.
    
5. The appellant then approached the National Consumer Disputes Redressal Commission for damages against the respondent, on the ground that the information which was required to be kept secret under Medical ethics was disclosed illegally and, therefore, the respondent was liable to pay damages. The Commission dismissed the Petition as also the application for interim relief summarily by order dated 3rd July, 1998 on the ground that the appellant may seek his remedy in the civil Court.

Learned counsel for the appellant has vehemently contended that the principle of "duty of care" as applicable to persons in medical profession includes the duty to maintain confidentiality and since this duty was violated by the respondents, they are liable in damages to the appellant.

Applicability Of The Legal Provisions In This Case:

(i) Duty To Maintain Confidentiality:

• Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an ethical code attributed to the ancient Greek physician Hippocrates, adopted as a guide to conduct by the medical profession throughout the ages and still used in the graduation ceremonies of many medical schools and colleges: Hippocrates lived and practiced as a Physician between the third and first Century B.C. He has been referred to by Plato as a famous Asclepiad who had a philosophical approach to medicine. His manuscripts, the Hippocratic Collection (Corpus Hippocratism), contained the Hippocratic Oath.
• The Hippocratic Oath consists of two parts. The first, or covenant, is the solemn agreement concerning the relationship of apprentice to the teacher and the obligations enjoined on the pupil. The second part constitutes the ethical code.
• It is on the basis of the above that the International Code of Medical Ethics has laid down as under:

  "A physician shall preserve absolute confidentiality on all he knows about his patient even after his patient has died."

(ii) Legal provisions related to this case:

1. Section 33(m) in The Indian Medical Council Act, 1956
2. Article 21 in the Constitution of India, 1949
3. Section 20 A in the Indian Medical Act, 1956
4. Section 269 in the Indian Penal Code
5. Section 270 in the Indian Penal Code

1. Section 20 A in the Indian Medical Act,1956:
There is the Indian Medical Council Act, which controls the medical education and regulates the professional conduct. Section 20A which was inserted by the Indian Medical Council (Amendment) Act 1964 provides as under :

Professional Conduct:

1. The Council may prescribe the standards of professional con-duct and etiquette and a code of ethics for medical practitioners,
2. Regulations made by the Council under sub-section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that it is to say, professional misconduct, and such provision shall have effect notwithstanding anything Contained in any law for the time being in' force."

2. Section 33(m) in the Indian Medical council Act,1956:
At the same time, that is, by the same Amending Act; clause (m) was also introduced in Section 33 and this clause provides as under :

33. Power to make regulations:
The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for

a) xxx xxx xxx

(m) the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners,"

It is under these provisions that the Code of Medical Ethics has been made by the Indian Medical Council which, inter alia, provides as under :

"Do not disclose the secrets of a patient that have been learnt in the exercise of your profession. Those may be disclosed only in a Court of Law under orders of the presiding judge."

(iii) Doctor-Patient Relationship:
It is true that in the doctor-patient relationship, the most important aspect is the doctor's duty of maintaining secrecy. A doctor cannot disclose to a person any information regarding his patient which he has gathered in the course of treatment nor can the doctor disclose to anyone else the mode of treatment or the advice given by him to the patient.

It is contended that the doctor's duty to maintain secrecy has a corelative right vested in the patient that whatever has come to the knowledge of the Doctor would not be divulged and it is this right which is being enforced through these proceedings.

It is the basic principle of Jurisprudence that every Right has a co- relative Duty and every Duty has a co-relative Right. But the rule is not absolute. It is subject to certain exceptions in the sense that a person may have a Right but there may not be co- relative Duty. The instant case, as we shall presently see, falls within the exceptions.

'RIGHT is an interest recognized arid protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition, the elements of a "LEGAL RIGHT" are that the 'right' is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right, If, therefore, there is & legal right vested in a .person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right.

Hippocratic Oath as such is not enforceable in a court of law as it has no statutory force. Medical information about a person is protected by the Code of Professional Conduct made by the Medical Council of India under Section 33(m) read with Section 20A of the Act.

Circumstances in which the public interest would override the duty of confidentiality could, for example, be the investigation and prosecution of serious crime or where there is an immediate or future (but not a past and remote) health risk to others.

The General Medical Council of Great Britain in its guidance on HIV infection and AIDS has provided as under :

"When diagnosis has been made by a specialist and the patient after appropriate counseling, still refuses permission for the General Practitioner to be informed of the result, that request for privacy should be respected. The only exception would be when failure to disclose would put the health of the health- care team at serious risk. All people receiving such information much consider themselves to be under the same obligations of confidentiality as the doctor principally responsible for the patient's care.

Occasionally the doctor may wish to disclose a diagnosis to a third party other than a health-care professional. The Council think that the only grounds for this are when there is a serious and identifiable, risk to a specific person. who, if not so informed would be exposed to infection..,.. A doctor may consider it a duty to ensure that any sexual partner is informed regardless of the patient's own wishes".

Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure. in the circumstances enumerated above under which public interest, would override. the duty of confidentiality, particularly where there, is an immediate or future health risk to others.

3. Article 21 of the Indian constitution of 1949
Learned counsel for the appellant then contended that the appellant's right of privacy has been infringed by the respondents by disclosing the appellant was HIV(+) and, therefore, they are liable in damages.

Right to privacy has been culled out of the provisions of Article 21 arid other provisions of the Constitution relating to Fundamental Rights read with Directive Principles of State Policy. It was in this context that it was held by this Court in Kharuk Singh v.. Stale of Uttar Pradesh[1], that police surveillance of a person by domiciliary visits would be violative of. Article 21 of the Constitution, This decision was considered by Mathew, J. in his classic judgment in Gobind v. State of Madhya Pradesh & Anr[2]., in which the origin of "right to privacy" was traced and a number of American decisions, including Munn v.. Illinois[3], ; Wolf v. Colorado[4], and various Articles were considered arid it was laid down ultimately, as under :

"Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. 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."

Kharak Singh v. State of Punjab and Gobind v, State of Madhya Pradesh came to be considered again by this Court in Malak Singh & Ors v. State of Punjab & Ors.[5], and the view taken earlier on the right of privacy was reiterated.

In another classic judgment rendered by Jeevan Reddy, J., in R. Rajagopal @ RR Gopal & Anr. v. State of Tamil Nadu & Ors.[6], , the right of privacy vis-a-vis the tight of the Press under Article 19 of the Constitution were considered and in the research-oriented judgment, it Was laid down, inter alia, as under :

"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone:" A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful of otherwise and whether laudatory or critical.

If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however; be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy,"

In an American decision, Jane Roe v. Henry Wade[7], , the Supreme Court of United States said that : "Although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and that the roots of that right may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment and that the "right to privacy is not absolute."

Reference may, at this stage, be made to Article 8 of the European Convention on Human Right which defines this right us follows:

1. Every one has the. right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority With the exercise of this right except such as is in accordance with the law and is necessary in democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, Doctor-patient relationship, though basically commercial, is, professionally, a matter of confidence: and, there-fore, Doctors are morally and ethically bound to maintain confidentiality.

In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of one person's "right to be let alone" with another person's right to be informed. Disclosure of even true private facts has the tenancy to disturb a person's tranquility. It may generate many complexes in him and may even lead to psychological problems.

He may, thereafter, have a disturbed life all through. In the face of these potentialities and as already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Article .21, The 'right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

Having regard to the fact that the appellant was found to be HIV(+); its disclosure would not be violative of either the rule of confidentiality or the appellant's Right of Privacy as Ms. 'Y' with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken place and consummated.

(iv) Right Based On The Confidentiality Of The Context Of Marriage:
Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on this planet.

Mental and physical health is-of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally healthy children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce. Reference, for instance, may be made to Section 13(i)(v) of the Hindu Marriage Act, 1955 which provides as under :

13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) xxx xxx xxx

(v) Has Been Suffering From Venereal Disease In A Communicable Form
So also Section 2 of the Dissolution of Muslim Marriages Act, 1939 sets but that if the husband is suffering: from a virulent venereal disease, a Woman marriage under Muslim Law to such person shall be entitled to obtain a decree for dissolution of her marriage.

Under the Parsi Marriage and Divorce Act, 1936, one of the grounds for divorce set Out in Section 32 is that the defendant has, since the marriage, infected the plaintiff with venereal disease.

Under the Indian Divorce Act, 1869, the grounds for dissolution of a marriage have been set out in Section 10 which provides that a wife may petition for dissolution if her husband was guilty of incestuous adultery, bigamy with adultery or of rape, sodomy or bestiality, Under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married was suffering front venereal disease in a communicable form.

The emphasis, therefore, in practically all systems of marriage is on a healthy body with moral ethics. Once the law provides the "venereal disease" as a ground for divorce to either husband or wife, such a person who was suffering from that disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of the disease.

If the disease, with which he was suffering, would constitute a valid ground for divorce, was concealed by him and he entered into marital ties with a woman who did not know that the person with whom she was being married was suffering from a virulent venereal disease, that person must be injuncted from entering into marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman.

In this situation, the right to marry and duty to inform about his ailment are vested in the same person. It is a right in respect of which a corresponding duty cannot be claimed as against some other person. Such a right, for these reasons also, would be an exception to the general rule that every "RIGHT" has a co relative "Duty". Moreover, so long as the person is not Cured of the communicable venereal disease or impotency, the RIGHT to marry cannot be enforced through a court of law and shall be treated to be a "SUSPENDED RIGHT".

4. Section 269 and 270 of the Indian Penal code, 1860

Sections 269 and 270 of the Indian Penal Code provide as under :

269. Negligent act likely to spread infection of disease dangerous to life
Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description or a term which may extend to six months, or with fine, or with both.

270. Malignant act likely to spread infection of disease dangerous to life
Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

These two Sections spell out two separate and distinct offences by providing that if a person, negligently or unlawfully, does an act which he knew was likely to spread the infection of a disease, dangerous to life, :to another person, then the former would be guilty of an offence, punishable with imprisonment for the term indicated therein.

Therefore, if a person suffering from the dreadful disease "AIDS", knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of the Indian Penal Code.

The above statutory provisions thus impose a duty upon the appellant not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, to the woman whom he marries apart from being an offence.

The Issues Before The Supreme Court Were As Follows:

1. Whether the Respondents were guilty of violating the Appellants right to privacy guaranteed under Article 21 of the Constitution?
2. Whether the Respondents were guilty of violating their duty to maintain secrecy under medical Ethics?

Judgment Of The Supreme Court Of India:

1. In deciding the first issue, the court held that in the event of a conflict between the Appellants' fundamental right to privacy and the fundamental right to be informed about any threat to her life/health of the latter, the latter's right to be informed will override the Appellants' right to privacy. Hence, the court held that the Respondents are not guilty on the first count.
2. In deciding the second issue, the court held that the duty to maintain secrecy in every Doctor-patient Relationship was also not absolute and such duty could be broken and hence secret divulged where compelling public interest requires. Hence, the court held that the respondents are not guilty on the second count as well.
3. The court further held that in the event the Appellant decides to marry while suffering from such a dreadful disease, he shall be punishable under Section 269 and 270 of The Indian Penal Code.
4. The court further held that the Appellants' right to marry was suspended until complete cure of the Appellant's dreadful disease. The court based this decision on various statutes which give the right to a spouse to seek divorce on the ground of the other suffering from a communicable venereal disease such as AIDS.
5. The court held that AIDS is the product of undisciplined sexual impulse. This impulse, being a notorious human failing if not disciplined, can afflict and overtake anyone, however high or low he may be in the social strata. The court cannot assist that person to achieve that object.
6. The court held that the Hippocratic Oath taken by medical men at the time of entering the profession is not enforceable in the court of law as it lacks statutory force.

Conclusion & Suggestions:
Can the appellant, in the face of these statutory provisions, contend that the respondents, in this situation, should have maintained strict secrecy. Then, respondent's silence would have made them particeps criminis.

Ms. 'Y', with whom the marriage of the appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+). The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage.

As a human being, Ms. 'Y' must also enjoy, as she, obviously, is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees "Right to Life" to every citizen of this country.

This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable.

Since "Right to Life" includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy.

Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, "in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day" (See : Legal Duties : Allen) "AIDS" is the product of in disciplined sexual impulse.

This impulse, being the notorious human failing if not disciplined, cart afflict and overtake anyone how high so ever or, for that matter, how low he may be in the social strata. The patients suffering from the dreadful disease "AIDS'1 deserve full sympathy. They are entitled to all respects as human beings.

Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation- Government jobs or service cannot be denied to them as has been laid down in some American decisions. (See-.School Board of Nassau Country, Florida v. Airline,[8] ; Chalk v, USDC CD [9]of Col., 9th Circuit ; Shuttleworth v, Broward Ct y.[10]; Raytheon v. Fair Employment and Housing Commission, Estate of Chadbourne,[11] . But, "sex" with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object.

"Live In The Hope Of A World That Will Be Free, If Not Free Of Disease, Free Of Fear And Discrimination"

Bibliography:

1. Marc Galanter& Jayanth Krishnan, Personal Law And Human Rights In India and Israel Ref 101,109 (2000)discussing personal law in India.
2. Grover,Right to Marry, note 96
3. The penultimate paragraph of the court's opinion uses these words repeatedly. See Mr. X V Hospital Z,A.I.R 1999 S.C.503

End-Notes:

• AIR (1963)SC 1295
• (1975)2 SGC 148)
• (1877)94 US 113
• (1949)338 US 25
• (1981)1SCC 420
• (1994)6 SC 632
• 410 US 113
• (1987)107S.C T.1123
• (1988)840 2F 2D 701
• SDA FLA(1986)639 F.SUPP.654
• (1989)261 CAL.REPORTER 197

Award Winning Article Is Written By: Ms.A.Jonah Elisa Shiny

Authentication No: SP362204227451-13-0923