i.

Issues Before The Supreme Court:The issues before the Supreme Court were as
follows:

Whether respondents are liable for breach of duty by not maintaining confidentiality,
thus should to pay damages?

Whether AIDS patients have right to marry as well as privacy not to disclose about
infection?

HIGHLIGHTS
Every human being is capable of making mistakes. The degree of mistake made by one as
compared to another may vary. But mistakes we all make. The Supreme Court of India-
an embodiment of justice, the highest court of the land is no exception.
In my humble opinion, the above Judgment was a mistake. My reason for holding such
an opinion is based on the following details discussed broadly below:
The issue before the Supreme Court was whether or not a breach of confidentiality and
privacy by the Hospital authorities had indeed taken place. However the judgment makes
out that the complainant was contesting his right to marry, which is factually incorrect. It
is an elementary principle of Jurisprudence that the Court will not decide on issue not
raised before it. Thus by deciding on an issue not before the court such as the Appellants
right to marry, such decision is in fact no decision in law.
Further more it may be noted that for the first time in the judicial history anywhere in the
world a Court has taken away the fundamental right of an individual to marry.
Even for the sake of argument if one was to believe that right to marry was an issue
before the Court in the present case, it cannot be take away as it is an absolute right. The
reason for the same is that the right to marry of an individual flows directly from his
right to life guaranteed under article 21 of the constitution of India. Article 21 extends to
citizens and aliens alike and a person suffering from AIDS is no exception. Prior to the
44th Amendment the constitution provided for the suspension of this right under article
359 on the Presidents order to that effect. However after the 44th Amendment things
have changed and now article 21 cannot be suspended at any point of time even on such
order of the President, thus making rights flowing under it
absolute.With reference to the Courts decision regarding the issue of conflict of the
Appellants right to privacy against Ms As right to be informed and that whos right would
override who's right. The Court failed to take notice of the following points:

The Court overlooked the fact that the Appellant in the present case was himself a
Doctor who could be reasonably expected to be aware of the dangers of the disease and
hence his consent should have at least been taken by the hospital authorities before
publicly declaring his disease which had the effect of making him a victim of gross
discrimination, and led him to being ostracized from the community.
Furthermore, the Court also failed to hear out one of the essential parties to the case- Ms
A who's right was in question if at all, or was made out to be by the Court.
With reference to the Courts decision on the second issue of whether the Respondents
were guilty of violating their duty to maintain secrecy, the Court held them not guilty as
such duty of maintaining secrecy could be broken in public interest. Here the Court filed
to take into account the fact that India has over 2 million reported AIDS infected patients
and maybe more unreported persons. By setting such a precedent whereby a Hospital
gets license to break their duty to secrecy in so called public interest leading to the
ostracizing of an entire community of AIDS infected persons, the Court erred to take
into account that compelling public interest lied in favour of the Appellant and the rest of
such community consisting of a sizable population of over 2 million. The court failed to
recognize the havoc such precedent would have over the entire community of such AIDS
patiens who were already dealing everymoment of their lives with certain death.
It is extremely disappointing to learn that the Court went on to hold that the Appellant
would be guilty under sections 269 and 270 if he decided to marry Ms A where marriage
was not even an issue before the Court. Such a decision defies logic and has an effect of
rubbing salt on a wounded person.It may further be noted that the Courts reason for
arriving at the decision of suspending the Appellants right to marry was based on
Statutes such as Hindu Marriage Act, Dissolution of Muslim Marriage Act, Parsi
Marriage and Divorce Act, Indian Divorce Act, Special Marriage Act. These Acts being
spoken of above all provide for a communicable venereal disease as a ground for
divorce, but none hold that a person cannot marry if he suffers from such disease. This
important distinction was clearly missed by the learned judges. Furthermore the Court
failed to recognize that by setting such a precedent whereby the doctor could break his
duty to maintain secrecy, such a precedent would only drive the disease underground,
which would defeat the very objective of prevention of transmission of such disease in
thefirstplace.

The Court held that the Hippocratic Oath taken by medical men at the time of entering
the medical profession could not be enforced as it lacked Statuary force. Here it is worth
noting that the Court applied failed to recognise the principle as to why such a
Hippocratic Oath was required to be taken by medical me in the first place. Here the
Court applied a very narrow minded approach and hence missed out on the larger
picture.It is extremely disappointing to learn that the Court went on to opine that AIDS is
the product of undisciplined sexual impulse and hence the Court could not assist the
Appellant to achieve such object. Such an opinion of the Court clearly underscores the
presumptuous nature and the narrow minded approach which the Court adopted in
solving the instant case. It was a clear case of forming a judgement and jumping to
conclusions without hearing the other side and digging facts. It is a common principle of
Jurisprudence that of Audi alteram partem- to hear to other side and that no man should
be condemned unheard. The same principle was ignored by the Court in principle and in
practice. The Court overlooked the fact that the Appellant had acquired the disease as a
result of blood transfusion and not undisciplined sexual impulse.
It is note worthy that there are many other forms of communicable disease that are in
fact easier to acquire that HIV like TB, Hepatitis B, yet no restrictions are placed on
persons suffering from these illness, then isnt it not discriminatory and arbitrary in nature
to place restrictions on people who are HIV+.In the present case the Court completely
ignored the fact that the Appellant had suffered damages as a result of such disclosure
which led him to being so severely criticised and ostracized from the community as a
result of which he was driven to leave his place of work and residence and shift to a new
city for some respite. The Court refused to grant compensation to the Appellant and
there by ended up setting a precedent which would not just discourage AIDS patient
from coming out in open but also encourage people to discriminate against such persons
who were already suffering fro such dreadful disease and pain. The decision of the
Supreme Court sent shock waves in the HIV community throughout the world. The
decision was most unfortunate and arrived at in haste without fully comprehending the
issues and being sensitive to them. The Court overlooked the larger picture while
deciding the current matter and failed to recognise that its decision would impact not just
the Appellant but the entire AIDS struck community at large.During my Law School
days this case had come up for much discussion and debate. Thankfully times have
changed since 1998 and in more recent cases in determining the rights of AIDS
patientsthe Supreme Court adopted a far more liberal and compassionate view on this
topic in giving AIDS patients their long due rights and thereby overriding the 1998
judgement.