Holding

The right to privacy is not absolute; disclosure of an HIV‑positive status is permissible when it prevents a serious health risk to a prospective spouse, and the hospital is not liable for damages.

Summary

The appellant, a doctor who tested HIV‑positive, had his status disclosed by Hospital Z when he was about to marry Ms. Y, leading to social ostracism. He filed a consumer complaint seeking damages for breach of medical confidentiality and violation of his right to privacy under Article 21. The Supreme Court held that the right to privacy is not absolute and may be curtailed when public interest, specifically the prospective spouse's right to life and health, is at stake. The Court relied on the Indian Medical Council Act (sections 20A, 33(m)) and the Code of Medical Ethics, which permit disclosure in cases of imminent health risk to others. It also noted that Sections 269 and 270 of the Indian Penal Code impose a duty on the HIV‑positive individual not to expose others to the disease. Consequently, the hospital’s disclosure was deemed lawful, and the appeal was dismissed.

Issues considered

The extent to which a patient's right to privacy under Article 21 can be restricted in the interest of public health.
Whether Hospital Z breached the duty of confidentiality under the Indian Medical Council Act and the Code of Medical Ethics.
Whether the disclosure of the appellant's HIV status constitutes a violation warranting damages under consumer law.

Legislation cited

Hindu Marriage Act, 1955s. 13(1)(v)
Indian Medical Council Acts. 20A, s. 33(m)
Indian Penal Code, 1860s. 269, s. 270
Special Marriage Acts. 27

Subjects

right to privacyright to lifeHIV disclosuremedical confidentialitypublic interestIndian Medical Council ActIndian Penal Codefundamental rightsArticle 21marriage

Judgment

MR.'X' A
v.
HOSPITAL 'Z'

SEPTEMBER 21, 1998

[S. SAGHIR AHMAD AND B.N. KIRPAL, JJ.] B

Constitution of India-A11 21-Right to Privacy-Is pmt of 1ight to
life-Person suffeling from AlDS-Disclosure of-To save the life of another
person disclosure-Not violative of Art 21-Clash of two fundamental
1ights-Which of the two would prevail-Held, Right to P1ivacy is not absolute c
and may be lawfully restlicted for the prevention of Clime, disorder or protec-
tion of health or morals or protection of 1ights and freedom of others-Right
to Life includes the right to lead a healthy life and the light to infonnation
about the ftuther spouse-Where there is a clash of two Fundamental Rights,
the right which would advance the public morality or public interest, would
D
alone be enforceable through the process of Cowt-Vnder the facts and cir-
cumstances, the Hospital cannot be said to have, in any way violated the ntle
of confidentiality or the 1ight of p1ivacy-Rights-Suspension of-Discussed.

Indian Medical Council Act-Sections 20A and 33(m)-Code of Medi-
cal Ethics-Person found to be HW ( + }-Infonnation disclosed by Hospi- E
tat-Person claiming damages for violation of duty to maintain
confidentiality-Held, disclosure is pennitted under circumstances in which
public interest would ovenide the duty of confidentiality, pmticularly where
there is an immediate or ftllure health 1isk to others.

lndian Penal Code-Sections 269 and 27(}-Person suffe1ing from F
'AIDS'-Knowingly manics and thereby transmits the infection to his/her
spouse-Effect--Held, such person would be guilty of offences ·indicated
under Sections 269 and 270, !PC.

Human Rights and AIDS :
G
J Persons suffeling from AIDS-Treatment of-Held, such persons are
entitled to all respects as human beings-Their society should not be
avvided--Govemment jobs or seivice should not be denied to them.

Words & Phrases-'Legal Right'-Meaning of H
723
724 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A Marriage between Appellant, 'X' and 'Y' was fixed but was called off
as the appellant was found to be HIV(+) in the blood test conducted at
the respondent's hospital, Z. Several people including appellant's family
members and persons belonging to his community became aware of the
appellant's HIV(+) status and he was severely criticised and ostracized
B by the community. .., .

Appellant approached the National Consumer Disputes Redressal
Commission for damages against the respondent-Hospital for disclosing
information regarding his being HIV ( +) which was required to be kept
secret under the Medical ethics. The Commission dismissed the petition
C on the ground that the appellant could seek remedy in the civil court.
Aggrieved by the order of the National Commission, the appellant has filed
the present appeal.

The appellant contended that the principle of "duty of care", in
medical profession, includes the duty to maintain confidentiality which has
D been incorporated in the Code of Medical Ethics formulated by the Medi-
cal Council of India and this duty was violated by the respondent; that the
co-relative right vested in a patient that whatever has come to the
knowledge of the doctor would not be divulged has been violated; that the
appellant's right to privacy has been infringed by the respondent by
E disclosing that he was HIV(+); and that every young man or woman has
an absolute right to marry.

Dismissing the appeal, the Court

HELD : 1.1. It is the basic principle of Jurisprudence that every
F 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.
[731-H; 732-A]
1.2. The elements of a "LEGAL RIGHT" are that the "right" is vested
G 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 a 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
H right. [732-B-C]
MR. 'X' v. HOSPITAL 'Z' 725

2. Medical information about a person is protected by the Code of A
Professional Conduct made by the Medical Council of India under Section
33(m) read with Section 20A of the Act. The relevant provisions of the Code
of Medical Ethics contain an exception to the general rule of confidentiality,
inasmuch as it provides that information may be disclosed in a court of law
under the orders of the Presiding Judge. This is also the law in England
where it is provided that the exceptions to this rule permit disclosure with
B
the consent, or in the best interests of the patient, in compliance with a court
order or other legally conforceable duty and, in very limited circumstances,
where the public interest so requires. [732-D-F]

Guidance on HW infection and AIDS issued by the General Meiical c
.
.
Council of Great Britain, referred to .

3. The Code of Medical Ethics also carves out an exception to the
rule of confidentiality and permits the disclosure in the circumstances
under which public interest would override the duty of confidentiality,
particularly where there is an immediate or future health risk to others. D
[733-C-D]
4.1. Right of Privacy is an essential component of right to life
envisaged by Article 21. [736-B]

Kharak Singh v. State of Uttar Pradesh, AIR (1963) SC 1295; Gobind E
v. State of Madhya Pradesh & Anr., [1975] 2 SCC 148; Malak Singh & Ors.
v. State of Punjab & Ors., [1981] 1 SCC 420; R. Rajagopal@ R.R. Gopal &
Anr., v. State of Tamil Nadu & Ors., [1994] 6 SCC 632, relied on.

4.2. The right to privacy, however, is not absolute and may be lawfully
restricted for the prevention of crime, disorder or protection of health or F
morals or protection of rights and freedom of others .. [736-B]

Jane Roe v. Henry Wade, 410 US 113, referred to.

European Convention on Human Rights, Article 8, referred to.
G
5. The Fundamental Rights under Article 21 guarantees "Right to
Life" to every citizen of this country. This right would positively include
the right to be told that the person, with whom marriage was proposed,
was a 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 H
726 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A 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 Y's right to lead a healthy life which is her Fundamental Right under
B Article 21, the RIGHT which would advance the public morality or public
interest, would alone be enforced through the process of Court. [739-C-G]

6. 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
C communicable form, it will be open to the other partner in the marriage to
seek divorce. 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
D said to have anyrightto marry so long as he is notfully 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 in-
juncted from entering into marital ties so as to prevent him from spoiling
E the health and, consequently, the life of an innocent woman. [737-E-F]

7. Having regard to the age and the biological needs, a person may
have a right to marry but this right is not without a duty. If that person is
suffering from any communicable venereal disease or is impotent so that
p marriage would be a complete failure or that his wife would seek divorce
from him on that ground, that person is under a moral, as also legal duty,
to inform the woman with whom the marriage is proposed that he was not
physically healthy and that he was suffering from a disease which was likely
to be communicated to her. 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
G respect of which a corresponding duty cannot be claimed as against some
person. Such a right, for these reasons also, would be an exception to the
general rule that every "RIGHT" has a correlative "Duty". Moreover, so long
as the person is not cured of the communicable venereal disease or impoten-
cy, the RIGHT to marry cannot be enforced through a court oflaw and shall
H be treated to be a "SUSPENDED RIGHT". [737-G-H; 738-A, B, CJ
MR. 'X' v. HOSPITAL 'Z' 727

8. Having regard to the fact that the appellant was found to be A
HIV(+), its disclosure would not be violative of either the rule of confiden-
tiality or the appellant's Right of Privacy as '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 consumated. [736-C-D] B

9. 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. These two statutory provisions impose a duty upon the appellant
not to marry as the ma;riage would have the effect of spreading the c
infection of his own disease, which obviously is dangerous to life, to the
·,- woman whom he marries apart from being an offence. In the face of these
statutory provisions, respondents' silence would have made them par-
ticipient criminies. [738-G-H; 739-A-B]
D
10. The patients suffering from the dreadful disease "AIDS" 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. [740-A]
E
School Board of Nassau Countly, Fl01ida v Airline, [1987] 107 8. Ct.
1123; Chalk v. USDC CD of Cal. 9th Circuit, [1988] 84G2 F. 2d 701; Shuttle
Worth v. Broward Cly., SDA Fla., [1986] 639 F. Supp. 654; Raytheon v. Fair
Employment and Housing Commission, Estate of Chandboume, [1989] 261
Cal. Reporter 197, referred to. F

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4641 of
1998.

From the Judgment and Order dated 3.7.98 of the National Con- G
sumer Disputes Redressal Commission at New Delhi in O.P. No. 88 of
1998.

Ms. Meenakshi Arora for the Appellant.

The Judgment of the Court was delivered by H
728 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A SAGHIR AHMAD, J. 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.

The appellant after obtaining the Degree of MBBS in 1987 from .. -
B 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.

C 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 Septem-
ber, 1991 the appellant joined the further Course of Diploma in Opthamal-
ogy which completed in April, 1993. In August, 1993 he resum-:d his duties
in the Nagaland State Health Service as Assistant Surgeon Grade-I.
D
One Itokhu Yepthomi who was ailing from a disease which was
provisionally diagnosed as Aortic Anuerism 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
E 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
F was operated for Aortic Anuerism and remained in the Hospital till 10th
June, 1995 when he was discharged.

In August, 1995 the appellant proposed marriage to one Ms. 'Y'
which was accepted and the marriage was proposed to be held on Decem-
ber 12, 1995. But the marriage was called off on the ground of blood test
G 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 settfrd but was subsequently called off,
several people including members of the appellant's family and persons
H belonging to his community became aware of the appellant's HIV(+)
MR. 'X'v. HOSPITAL'Z'(S.SAGHIRAHMAD,J.] 729

status. This resulted in severe criticism of the appellant and he was A
pstracized by the community. The appellant left Kohima (Nagaland)
around November 26, 1995 and started working and residing at Madras.

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 B
ethics was disclosed illegally and, therefore, the respondent was liable to
pay damages. The Commission dismissed the Petition as also the applica-
tion for interim relief summarily by order dated 3rd July, 1998 on the
ground that the appellant may seek his remedy in the civil court.
c
Learned counsel for the appellant has vehemently contended that the
,r principle of "duty of care", as applicable to persons in medical profession,
includes the duty to maintain confidentiality and since this duty was vio-
lated by the respondents, they are liable in damages to the appellant.

Duty to maintain confidentiality has its origin in the Hippocratic D
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 practised as a
· Physician between third and first century BC. He has been referred to by E
• Plato as a famous Asclepiad who had philosophical approach to medicine.
His manuscripts, the Hippocratic Collection (Corpus Hippocracticum),
contained the Hippocractic Oath which is reproducecl below :

"I swear by Apollo the physician and Aesculapius and health and F
all-heal and all the gods and goddesses that according to my ability
and judgment I will keep this oath and this stipulation - to reckon
him who taught me this art equally dear to me as my parents, to
share my substance with and relieve his necessities if required, to
look upon his offspring in the same footing as my own brothers
and to teac11 them this art if they shall wish to learn it without fee G
or stipulation and that by precept, lecture, and every other mode
of instruction I will impart a knowledge of the art to· my own sons
and those of my teachers and to disciples bound by a stipulation
and oath according to the law of medicine but to none others. I
will follow that system of regimen which, according to my ability H
730 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A and judgment, I consider for the benefit of my patients, and abstain
from whatever is deleterious and mischievous. I will give no deadly
medicine to any one if asked nor suggest any such counsel, and in
like manner I will not give to a woman a pessary to produce
abortion. With purity and with holiness I will pass my life and
practice my art. I will not cut persons laboring under the stone but
B will leave this to be done by men who are practitioners of this
work. Into whatever houses I enter, I will go into them for the
benefit of the sick and will abstain from every voluntary act of
mischief and corruption, and further, from the seduction of females
or males, of freeman and slaves, whatever in connection with my
c professional practice, or not in connection with it, I see or hear,
in the life of men, which ought not to be spoken of abroad, I will
not divulge as reckoning that all such should be kept secret. While ....
I continue to keep this oath unviolated, may it be granted to me
to enjoy life and the practice of the art, respected by all men, in
all times, but should I trespass and violate this oath, may the
D reverse be my lot." ·.
The Hippocractic Oath consists of two parts. The first, or covenant,
is the solemn agreement concerning the relationship of apprentice to
teacher and the obligations enjoined on the pupil. The second part con-
E stitutes the ethical code. ....
~

It is on the basis of the above that International Code of Medical
Ethics has laid down as under :

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

Here, in this country, 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 (Amend-
ment) Act 1964 provides .as under :
G
"Professional Conduct : ~ 4=·

(1) The Council may prescribe the standards of professional con-
duct and etiquette and a code of ethics for medical practitioners.

H (2) Regulations made by the Council under sub-section (1) may

,
MR. 'X'v. HOSPITAL'Z' [S.SAGHIRAHMAD,J.] 731

specify which violations thereof shall constitute infamous conduct A
in any professional respect, that it is to say, professional miscon-
duct, and such provision shall have effect notwithstanding anything
contained in any law for the time being in force."

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 : B

"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,
c
such regulations may provide for -

(a) xxx xxx xxx

(m) the standards of professional conduct and etiquette and code D
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
E

Court of Law under orders of the presiding judge."

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 F
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 G
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 H
732 SUPREME COURT REPORTS [1998) SUPP. l S.C.R.

A 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 recognised and 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
B 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
C forbear from acting in a manner so as to prevent the violation of the right.
If, therefore, there is a 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
D 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. The relevant provisions
of the Code of Medical Ethics have already been reproduced above which

E
contain an exception to the general rule of confidentiality, inasmuch as it
provides that the information may be disclosed in a court of law under the
orders of the Presiding Judge. This is also the law in England where it is
provided that the exceptions to this rule permit disclosure with the consent,
-
or in the best interests, of the patient, in compliance with a court order or
other legally enforceable duty and, in very limited circumstances, where the
public interest so requires. Circumstances in which the public interest
F would override the duty of confidentiality could, for example, be the
investigation and prosecution of serious crime or where there is an imme-
diate or future (but not a past and remote) health risk to others.

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

"When diagnosis has been made by a specialist and the patient
after appropriate counselling, 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
H failure to disclose would put the health of the health- care team
MR. 'X'v. HOSPITAL 'Z' [ S.SAGHIR AHMAD,J.] 733

at serious risk. All people receiving such information much con- A
sider themselves to be under the same obligations of confidentiality
as the doctor principally responsible for the patient's care. Oc-
casionally the doctor may wish to disclose a diagnosis to a third
party otber than a health-care professional. The Council think that
the only grounds for this are when there is a serious and identifi-
able risk to a specific person,who, if not so informed would be
B
exposed to infection ..... A doctor may consider it a duty to ensure
that any se.J.1tal pmtner is infonned regardless of the patient's own
wishes.

(Emphasis supplied) C

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. D

The argument of the learned counsel for the appellant, therefore,
that the respondents were under a duty to maintain confidentiality on
account of the Code of Medical Ethics formulated by the Indian Medical
Council cannot be accepted as the proposed marriage carried with it the
health risk to an identifiable person who had to be protected from being
E
infected with the communicable disease from which the appellant suffered.
The right to confidentiality, if any, vested in the appellant was not enfor-
ceable in the present situation.

Learned counsel for the appellant then contended that the F
appellant's right of privacy has been infringed by the respondents by
disclosing tb t the appellant was HIV(+) and, therefore, they are liable in
damages. Let us examine this contention.

Right to privacy has been culled out of the provisions of Article 21
and other provisions of the Constitution relating to Fundamental Rights G
read with Directive Principles of State Policy. It was in this context that it
was held by this Court in Kharak Singh v. State of Uttar Pradesh, AIR (1963)
SC 1295 that police surveillance of a person by domicilliary 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 H
734 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A &Anr., (1975] 2 sec 148, in which the origin of "right to privacy" was traced
and a number of American decisions, including Munn v. Illinois, (1877) 94
US 113; Wolf v. Colorado, (1949) 338 US 25 and various Articles were
considered and it was laid down ultimately, as under :

"Depending on the character and antecedents of the person sub-
B jected to surveillance as also the objects and the limitation under
~--
which survt:illance is made, it cannot be said surveillance by
domicilliary visits would always be unreasonable restriction upon
the right of privacy. Assuming that the fundamental rights explicitly
guaranteed to a citizen have penumbra! zones and that the right -"·
c 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 (supra) came to be considered again by this Court in Malak Singh
& Ors. V. State of Punjab & Ors., [1981] 1 sec 420 and the view taken
D
earlier on the right of privacy .was reiterated.

In another classic judgmt:nt rendered by Jeevan Reddy, J., in R.
Rajagopal@ RR Gopal & Anr. v. State of Tamil Nadu & Ors., [1994] 6 SCC
632, the right of privacy vis-a-vis the right of the Press under Article 19 of
E 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 thi:; country by Article 21. It is a "right
to be let alone." A citizen has a right to safeguard the privacy of
F his own, his family, marriage, procreation, motherhood, child-bear-
ing and education among other matters. None can publish anything
concerning the above matters without his consent -- whether truth-
ful of otherwise and whether laudatory or criticaL If he does so,
he would be violating the right to privacy of the person concerned
G 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, 410 US 113, the
H Supreme Court of United Sta~es said that :

..
MR. 'X'v. HOSPITAL'Z' [S.SAGHIRAHMAD,J.] 735

"Although the Constitution of the U.S.A. does not explicitly men- A
tion any right of privacy, the United States Supreme Court recog-
nizes 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 B
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 as follows :
c
"(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 D
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."
E
(Emphasis supplied)

As one of the basic Human Rights, the right of privacy is not treated
as absolute and is subject to such action as may be lawfully taken for the
prevention of crime or disorder or protection of health or morals or
F
protection of rights and freedoms of others.

Right of Privacy may, apart from contract, also arise out of a par-
----..
""->
'. ticular 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- G
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. H
736 SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.

A 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,
B however, is not absolute and may be lawfully restricted for the prevention
of crime, disordef or protection of health or morals or protection of right/
and freedom of others.

Having regard to the fact that the appellant was found to be
C HIV(+), its disclosure would not be violative of either the rule of con-
fidentiality 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.

D We may now examine the right based on confidentiality in 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
E union. When two souls thus unite, a new sou\ comes into existence. That
is how, the life goes on and on 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
F 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 l3(i)(v) of the Hindu Marriage Act, 1955 which provides
as under :

G "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

H (i) xxx xxx xxx
MR. 'X' v. HOSPITAL 'Z' [ S. SAGHIR AHMAD, J.] 737

(v) HAS BEEN SUFFERING FROM VENEREAL DISEASE A
IN A COMMUNICABLE FORM.

So also Section 2 of the Dissolution of Muslim Marriages Act, 1939
sets out 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. B

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
c
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 mar- D
riage has been given the right to obtain divorce if the other party to whom
he or she was married was suffering from venereal disease in a com-
municable form.

The emphasis, therefore, in practically all systems of marriage is on
a healthy body with moral ethics. Once the law provides the "venereal E
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 F
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.

The contention of the learned counsel that every young man or, for G
that matter, a woman, has a right to marry cannot be accepted in the
absolute terms in which it is being contended. Having regard to the age
and the biological needs, a person may have a right to marry l:.ut this right
is not without a duty. If that person is suffering from any communicable
venereal disease or is imp?tent so that marriage would be a complete H
738 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A failure or that his wife would seek divorce from him on that ground, that
person is under a moral, as also legal duty, to inform the woman with whom
the marriage is proposed that he was not physically healthy and that he was
suffering from a disease which was likely to be communicated to her. In
this situation, the right to marry and duty to inform about his ailment are
B vested in the same person. It is a right in respect of which a corresponding Cl .,
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 corelative "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
C be a "SUSPENDED RIGHT".

There is yet another aspect of the matter.
,
Sections 269 and 270 of the Indian Penal Code provide as under :

D
"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
E six months, or with fine, or with both.

270. Malignant act likely to spread infection of disease dangerous
to Zife - Whoever malignantly does any act which is, and which he
knows or has reason to believe to be, likely to spread the infection
F of any disease dangerous to life, shall be punished with imprison-
ment 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
G 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
H offences indicated in Sections 269 and 270 of the Indian Penal Code.
MR. 'X' v. HOSPITAL 'Z' [ S. SAGHIR AHMAD, J.] 739

The above statutory provisions thus impose a duty upon the appellant A
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.

Can the appellant, in the face of these statutory provisions, contend
B
that the respondents, in this situation, should have maintained strict
secrecy. We are afraid, respondent's silence would> have made them par-
ticipient 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 c
was HIV(+). The disease which is communicable would have been posi-
tively 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 D
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" ir.cludes right to lead a healthy life so as to enjoy all faculties of
the human body in their prime condition, the respondents, by their dis- E
closure 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 F
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 : G
Legal Duties : Allen)

"AIDS" is the product of indisciplined sexual impulse. This impulse,
being the notorious human failing if not disciplined, can afflict and overtake
anyone how high soever or, for that matter, how low he may be in the socfal H
I I

740 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A strata. The patients suffering from the dreadful disease "AIDS" 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
B down in some American decisions. (See : School Board of Nassau Country, • •

F/01ida v. Airline, (1987) 107 S. Ct. 1123; Chalk v. USDC CD of Cal., 9th
Circuit (1988) 840 2 Ii. 2d 701; Shuttleworth v. Broward Cty., SDA Fla.
(1986) 639 F. Supp. 654; Raytheon v. Fair Employment and Housing
Commission, Estate of Chadboume, (1989) 261 Cal. Reporter 197. But,
"sex" with them or possibility thereof has to be avoided as otherwist they
C would infect and communicate the dreadful disease lo others. The Court
cannot assist that person to achieve that object.

For the reasons stated above, the appeal is without merits and is,
consequently, dismissed.

A.KT. Appeal dismissed.