6. The Court held that the Hippocratic Oath
taken by medical men at time of entering profession is not enforceable in the
Court of law as it lacks statuary force.
My Comments On The
Supreme Court Judgement-A Critical Analysis:
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:
i. 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.
ii. 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.
iii. 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.
iv. 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.
v. 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.
vi. 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.
vii. 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.
viii. 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 the first place.
ix. 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.
x. 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.
xi. 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+.
xii. 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 patients the 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.
At this point I would like to conclude this
analysis by quoting Dominic D Souza a late HIV Activist
who said:
" live in the hope of a world that will be free, if
not free of disease, free of fear and discrimination".
The
author can be reached at: anupamtripathi@legalserviceindia.com /
