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Introduction
The 21 st day of September 1998 (1) 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 PWHA (2).
In the year 2003 the Supreme Court (3) restored the right
to marry of the PWHA. This was indeed a welcome step and was
received with great appreciation. The Supreme Court restored the
earlier position i.e. the PWHA 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 PWHA."
Therefore the need arises that the proposition laid down in C.A.
No. 4641/1998 and the I.A. for clarification/ direction should be
evaluated to ascertain the threat, which still persists pertaining
to violation of their rights.
Facts of the Case -
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 with out 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 the marriage was called off. However
by this time every one knew the sero status of Mr.X. He was
severely ostracised 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 NCDRC
asked Mr. X to approach a civil court. However he preferred an
appeal to the Supreme Court. (8)
Proposition laid down in Mr. X v. Hospital Z (1998) -
1. Right to marry is a suspended in cases of PWHA.
2. Infringement of such suspended right cannot be legally
compensated.
3. Disclosure of the 'sero-status' does not violate the right to
confidentiality as the life of Ms. Y was saved.
4. Duty is cast upon the PWHA not to marry by Ss. 269 & 270 of the
I.P.C.
Right to marry suspended -
The Apex Court has held that PWHA have no right to marry. The
basis of the finding was that the personal laws provide as a
ground for divorce when one spouse is suffering from communicable
vulnerable disease. Thus when one party is suffering from
communicable vulnerable disease there cannot be a lawful marriage.
Further the Court held that the object of marriage is sex. As AIDS
is a product of undisciplined sexual impulse, sex with PWHA is to
be avoided; the Court cannot assist those persons in achieving
that object.
With due respect to the above observations, it is humbly submitted
that this observation of the Hon'ble Court is devoid of any merit
and made in the gross ignorance of the facts of the case.
There is no provision in any personal law wherein marriage between
two person, either one or both suffering from any form of
communicable vulnerable disease is prohibited. Hence on this
ground declaring the right to marry as suspended is untenable.
Further the Court even did not realise that what if both parties
are suffering from HIV/ AIDS.
The second ground for declaring the right to marry as a suspended
right was based on the ground that AIDS is an outcome of
undisciplined sexual impulse and to prevent it from transmitting
right to marry should be suspended. In this regard I would like to
make two clarifications -
a) sex is not the absolute object of marriage.(4)
b) AIDS is not solely the outcome of undisciplined sexual impulse.
(5)
It is a sad and terrifying situation if the Apex Court of any land
bases its observation on such grounds.
Compensation for such suspended right-
The Supreme Court has held that, "infringement of a "suspended
right to marry" cannot be legally compensated by damages either in
Torts or Common law, is our answer to this problem raised in this
appeal which is based on the peculiar facts of its own".
The above ground for rejection of the appeal is totally uncalled,
for the real issues before the Consumer Foras as well as the
Supreme Court was that there was a breach of confidentiality or
not. The Supreme Court on a self conceived imaginary notion, which
was totally erroneous, made an observation on the issue of damages
for calling off the marriage.
Disclosure of sero status-
The Supreme Court justified the disclosure of the sero status of
the Appellant to a minister whose uncle the appellant had
accompanying for treatment. Due to this the Appellant was severely
and had to quit his home state. The disclosure was justified as
the Supreme Court imagined that such disclosure saved the life of
Ms.Y, the fiancée of Mr.X.
With due respect it is again submitted that had the Court before
making such observation inquired into the facts there would not
have been a miscarriage of justice in such abominable fashion.
Duty not to marry-
The Court did not stop here rather it proceeded on and declared
that there is a duty cast upon the PWHA not to marry. In case they
marry they shall face penal consequences imposed by S.269 and
S.270 of the I.P.C.
It is submitted with due respect that such marriage is neither a
negligent (6) nor a malignant (7) act. It is also
pertinent to note that in cases of discordant couples sexual
transmission of HIV can be lowered to 0.01% by safe penetrative
sex, by consistent and correct use of condoms. Further in case of
mother to child transmission, it is medically possible to reduce
the transmission of HIV during pregnancy from 33% to 2%.
Position as laid down in I.A. for clarification \ direction in
C.A. NO. 4641\1998 -
1) The Court directed the W.P. u\Art32 to be treated as an I.A.
for clarification \ directions in C.A. No. 4641\1998.
2) The disclosure was justified in the circumstances of the case.
3) The following observation made by Court in C.A.No.4641\1998
were unnecessary as the Court did not give notice to either
parties concerned-
a) right to privacy
b) criminal liability on marriage
c) right to confidentiality
d) the right to marriage is suspended during the period of
illness.
The above observations hit the headlines but not in toto.
Everywhere it was reported that PWHA have right to marry, 'right
to marry restored'. However, the situation is not as simple as it
seems.
The right to privacy, confidentiality, and disclosure are still
not conclusively restored. There is every chance that these rights
of PWHA may be invaded and such intrusion may be defended on the
basis of the judgement and clarification issued by the Hon'ble
Court in C.A.No.4641\1998.
The Hon'ble Court has held in the C.A. No. 4641\1998 that "...the
observations made by this Court, except to the extent of holding
as stated earlier that the appellant's right was not affected in
any manner in revealing his HIV +ve status to the relatives of his
fiancé, are uncalled for .We dispose off these applications with
these observations".
It has been stated clearly earlier that such disclosure was
uncalled for. Therefore for the sake of brevity it is necessary
that the far-reaching consequences and effects of this observation
by the court be examined. The following may be the effects of the
observation.
Ad-hoc Justice-
The law laid down by the Supreme Court is final till the
legislature or the Court itself changes it. In this process of
doing justice if any injustice is done to the parties then such
unjust law prevails till it is impeached. In this case the Hon'ble
Court did not conclusively settle the matter but an ad-hoc course
was resorted to.
Whereby the Court did not appreciate the case properly. The need
of the hour is to determine the rights and obligations of the PWHA
conclusively. The Hon'ble Court could have clearly laid down the
law on disclosure by issuing \ framing guidelines for the same.
A dangerous weapon against the PWHA-
The observation of the Hon'ble Court might have far reaching
consequences than what can be imagined at this stage. The Court
has clarified that the proposition made in the Appeal pertaining
to privacy and confidentiality were uncalled for. However one must
keep in mind that the Court has justified the disclosure, on what
ground-it has not been discussed therein.
It is impossible to imagine about the right to privacy and right
to confidentiality when the Court has justified the right to
disclosure of the sero-status to any third person.
A need for Reconsideration-
The observation of the Supreme Court in C.A. No. 4641\1998 and its
I.A. for clarification needs reconsideration if it wants to stand
tall in the eyes of the law-abiding citizens as a 'sentinel on a
qui vive'.
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Reference: -
1. Mr. X v. Hospital Z - C.A. No. 4641/ 1998 (1998) 8 SCC 296
2. PWHA- Persons with HIV / AIDS
3. AIR 2003 (SC) 664
4. Though sex is an essential aspect of marriage, however it is
not the sole object of marriage.
5. HIV/ AIDS may be communicated even by blood transfusion
(through a contaminated needle) and by birth.
6. see- Rakma { I.L.R Bom. 11}
7. The Hon'ble Court did not consider the case where two persons
suffering from HIV/ AIDS or in a case where one of the couple is
discordant and with knowledge of the disease they marry each other
and are willing to take preventive measures.
8. www.hri.ca/partners/lc
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A Critique On The
Right To Marry Of Hiv/ Aids Patient
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The
author can be reached at: p.a.s.pati@legalserviceindia.com
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