Author Name:   noorameena

The appellant is a doctor who completed his graduation in 1987 and joined Nagaland State Medical and Health Service as Assistant Surgeon Grade-I in 1991....

Right to privacy under Article 21: A case study

Preliminary information:
Name of the case: Mr. X v. Hospital Z
Citation: AIR 1999 SC 495, JT 1998 (7) SC626, 1998 (6) SCALE 230, (1998) 8 SCC 296, 1999 (1) UJ 232 (SC).
Nature of the case: Civil Appeal (C.A. No. 4641 of 1998)
Date of decision: 21.09.1998
Appellant: Mr. 'X'
Respondent: Hospital 'Z'
Bench: Division Bench
Judges: S. Saghir Ahmed and B.N. Kirpal, JJ.
Judge who delivered the judgement: S. Saghir Ahmed, J.

Facts of the case:
The appellant is a doctor who completed his graduation in 1987 and joined Nagaland State Medical and Health Service as Assistant Surgeon Grade-I in 1991. As a part of his duty, he was directed to accompany a patient whose disease was diagnosed as Aortic Anuerism to Hospital Z where he was asked to donate blood to the patient. His blood samples were taken and the result was shown to be A ( ). After two months, the appellant proposed marriage to a girl, which was accepted but subsequently called off on the ground of blood test conducted at the respondent's hospital in which the appellant 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 then approached the National Consumer Disputes Redressal Commission for damages against the respondents, on the ground that the information which was required to be kept secret under Medical ethics was disclosed illegally and, therefore, the respondents were liable to pay damages. The petition was rejected on the ground that the appellant may seek his remedy in the civil court and therefore appeal before the Hon’ble Supreme Court.

Mr. X v. Hospital Z was not the first case in India to discuss right to privacy as an element of right to life and liberty under Article 21. The various precedents in the issue were discussed by the judge in the instant case and reiterated the position. The approach to be taken where there is a conflict between two derived rights under Article 21 also came under discussion in the instant case. The right to privacy of an individual and right to health of another were clashed in the instant case. The court tried to evolve an applicable standard in cases of such conflicts after appraisal of the previous judgements and the facts and circumstances of the instant case.

Right to privacy – definition
It is now a settled position that right to life and liberty under Art. 21 includes right to privacy. Right to privacy 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.

Duty to maintain confidentiality
Duty of care in medical profession includes the duty to maintain confidentiality. The duty to maintain confidentiality has its origin in Hippocratic Oath which is adopted as a guide to conduct in medical profession. “Whatever, in connection with my 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.” The International Code of Medical Ethics has also laid down as follows: "A physician shall preserve absolute confidentiality on all he knows about his patient even after his patient has died." S.33 (m) of The Indian Medical Council (Amendment) Act, 1964 read with S.20A maintains the standards of professional conduct and etiquette and code of ethics as prescribed by the Medical Council of India to be observed by medical practitioners. The Code of Medical Ethics so formulated provides thus, “Do not disclose the secrets of a patient that have been learnt in the exercise of your profession except in a court of law under orders of the presiding judge."

The Hon’ble court also takes a cue from the English Medical Council Act which carves exception to the rule of confidentiality which permits 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. The General Medical Council of Great Britain in its guidance on HIV infection and AIDS has specifically provided that a doctor may consider it a duty to ensure that any sexual partner is informed regardless of the patient's own wishes and to any third person when he feels that there is a serious risk of another person getting infected. 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 future health risk to others.

Right to privacy is not an absolute right
Right to life includes right to privacy. In Kharak Singh v. State of UP, the court held that police surveillance of a person by domiciliary visits would be violative of Article 21of the Constitution. The majority judgement in the impugned case was of the opinion that our constitution does not in terms confer any constitutional guarantee like right to privacy. But, Subba Rao, J. in his minority judgement opined that though the constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of ‘personal liberty’ in Art. 21. The right to personal liberty takes in not only the right to be free from restrictions placed on his movements but also free from encroachments on his private life.

Mathew, J. in his classic judgment in Govind v. State of MP, accepted the right to privacy as an emanation from Arts. 19 (a), (d) and 21, but right to privacy is not an absolute right. “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.”Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made. The right to privacy deals with ‘persons, not places’.

It is now a settled position that right to life and liberty under Art. 21 includes right to privacy. Right to privacy 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. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

Right to marriage
Physical and mental capacity is an essential condition of marriage. One of the spouses suffering from a virulent venereal disease is a ground for the other party to claim divorce under every personal laws in India, say, S.13 (1) (v) of Hindu Marriage Act, 1955, S.2 of Dissolution of Muslim Marriage Act, 1939, S.32 of Parsi Marriage and Divorce Act, 1936, S.10 of Indian Divorce Act, 1869 and S.27 of Special Marriage Act. Where venereal disease is a ground for divorce, such a person suffering from venereal disease cannot claim a right to marry so long as he is cured from the disease. Any such person entering into marital ties with another without disclosing the factum of disease should be injuncted from it so as to prevent him from spoiling the health and life of another. Moreover, right to marriage of a person suffering from such venereal disease is with a corresponding duty to inform the other part about the ailment. Right to marriage of a person ailing with a venereal disease is a suspended right, which cannot be enforced in a court of law unless cured of it.

Any negligent or malignant act likely to spread infection of a disease dangerous to life is punishable under Ss. 269 and 270 of IPC. Any person suffering from a dreadful disease like AIDS marrying another person without disclosing the disease is committing an offence under Ss. 269 and 270 of IPC. Maintaining strict secrecy in such a scenario by the respondents per se would be abetment which would make them participant criminis. The respondent hospital cannot be held guilty of disclosing confidential information regarding the appellant with an object to save the life of an innocent party.

Right to privacy vs Right to health
Where there is a conflict between two derived rights, the right which advances public morality or public interest should alone be enforced by a process of court. The right to privacy of the appellant and the right to lead a healthy life of another person were clashed, both of it having its origin in Article 21. The disclosure of confidential information regarding the appellant would invariably result in saving an innocent person from contracting a deadly disease like AIDS. The disclosure of such information is sensitive and might lead to social ostracism and cannot be done except with an overwhelming consideration of public morality and public health. AIDS patients deserve all respect as human beings and no person shall be denied any opportunity or government jobs or service on the ground of disease, but having ‘sex’ with them shall be avoided as the same would lead to the communication of a dreadful disease and the court shall not assist the person in achieving that object. Hence, in case of a conflict between right to privacy and right to health of another, the latter prevails, upon greater considerations of public morality and public interest.

Conclusion
Right to privacy is an essential component of right to life and personal liberty under Article 21. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial, or even political. Right to privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. Where there is a conflict between two derived rights, the right which advances public morality and public interest prevails.

Later developments in Right to Privacy
Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to maintain seclusion or seclude personal information as well as the right to disclose personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in S.43 of Information Technology Act which makes unauthorized access into a computer, computer system or computer resources invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press. The right to press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.

Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under Article 19 (2) to (5). The position was different in the pre-Maneka Gandhi era, when Article 21 was not a source of substantive right.

The right to privacy may come in conflict with the investigation of police in several aspects. Narco-analysis, polygraph test and brain mapping tests, in application, make unwarranted intrusion into the right to privacy of a person. The Supreme Court was acknowledging the individual right to privacy by declaring these tests inhuman and unconstitutional. The Supreme Court in Directorate of Revenue and Anr v. Mohammed Nisar Holia cited the US Supreme Court judgement which held ‘thermal imaging’, a sophisticated sense enhancing technology which when kept outside the residential house of a person can detect whether the inmate has kept narcotic substance within as infringement on the right to privacy of the said person. The court discouraged the unnecessary infringement of the right to privacy of persons and held that no authority shall be given untrammeled power to infringe the right to privacy of a person, the court held while reversing the conviction for non-compliance of statutory requirements of search and seizure. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is- to see that such a right is not unnecessarily infringed.
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# R. Rajagopal v. State of TN, AIR 1995 SC 264.
# AIR 1963 SC 1295.
# AIR 1975 SC 1378.
# Supra n.1.
# Supra n.1.
# Selvi v. State of Karnataka, (2010) 7 SCC 263.
# (2008) 2 SCC 370.
# Danny Lee Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, 01 CDOS 4749, 2001 DJ D.A.R. 5879, 14 Fla. L. W F. S 329, 2001 DJCAR 2926.
# Supra n.6. The accused was convicted by the Trial Court under NDPS Act in pursuance of the search made in the hotel room. The fax copy of the consignment note transporting Madrex tablets from Delhi to Mumbai was seized. The conviction was reversed on appeal for non-compliance of the requirements under S.42, NDPS Act relating to search and arrest.
# Ibid.

The  author can be reached at: noorameena@legalserviceindia.com

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