1998 Supreme(SC) 1012

1998(9) Supreme 220
Supreme Court of India
(From National Consumer Redressal Commission)
S. Saghir Ahmad & B.N. Kirpal, JJ.
Mr. ‘X’ -Appellant
versus
Hospital ‘Z’ -Respondents
Civil Appeal No. 4641 of 1998
Decided on 21-9-1998
Counsel for the Parties :
For the Appellant : Ms. Meenakshi Arora, Advocate.

Important Points
1. Doctor’s duty to maintain secret of patient is not without excep­tion; code of medical ethics carves out exception permitting disclo­sure when there is immediate or future health risk. Where a doctor discloses to his patients would be that he/she is suffering from AIDS it does not amount to violate rule of confidentiality. Hippocratic Oath has no statutory force and cannot be enforceable in a Court of law.
2. Right to privacy is essential component of right to life, but same is not absolute right.
3. An AIDS patient, whose disease has been disclosed by doctor in the interest of another person cannot claim his right of privacy has been infringed.
4. Public disclosure of private facts of patient by doctor may amount to violation of right of privacy.
5. Right to marriage is not an absolute right; so long as a person is not cured of communicable venereal disease or impotency, right to marriage cannot be enforced through Court of law. Infringement of ‘Suspended Right to marry’ cannot be legally compensated by damages either in Torts or common law.
6. If a person suffering from AIDS knowingly marries a woman and thereby transmits infection to that woman he would be guilty of offence under Sections 269 and 270.

Headnote:(i) Indian Medical Council Act-Sections 20A and 33-Doctor-Pro­fessional conduct-Duty to maintain secret of patient-Not without exception-Code of Medical ethics carves out exception to rule of con­fidentiality-It permits disclosure when there is immediate or future health risk to others-Doctor finding a person tested HIV(+)-Dis­closure to a person with whom he proposed marriage-Not violate rule of confidentiality-Doctors’ silence would make him parti­cipient criminis under Sections 269 and 270 of IPC.

       Held : Duty to maintain confidentiality has its origin in the Hippocratic 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. The Hippocractic Oath consists of two parts. The first, or cove­nant, is the solemn agreement concerning the relationship of appren­tice of teacher and the obligations enjoined on the pupil. The second part constitutes the ethical code. Here, in this country, there is the Indian Medical Council Act, which controls the medical education and regulates the professional conduct. (Paras 7, 8 & 10)

       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 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. (Para 11)

       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 have a Right but there may not be co-relative Duty. The instant case, as we shall presently see, falls within the exceptions. (Paras 13)

       “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 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 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. (Para 14)

       Hippocratic Oath as such is not enforceable in a court of law as it has 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 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 would override the duty of confidentiality could, for example, be the investigation and prosecution of serious crime or where there is an immediate or future (but not a past and remote) health risk to others. (Para 15)

       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. (Para 17)

       Where the appellant was found to be tested HIV(+) which fact was divulged by the respondent hospital to the woman with whom his mar­riage had been settled and resultantly the marriage was called off and the appellant 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 which came to be dismissed. (Para 5)

       Held : 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 infected with the communicable disease from which the appellant suffered. The right to confidentiality, if any, vested in the appellant was not enforce­able in the present situation. In this situation the respondent should not have maintained strict secrecy. Their silence would have made them participient criminis under Sections 269 and 270 of Indian Penal Code. (Paras 18 & 40)

       (ii) Medical ethics-Rule of con­fidentiality-Hippocratic Oath has no statutory force-Not enforceable in a court of law. (Para 15)

       (iii) Constitution of India-Article 21-Right to privacy-Right to privacy is essential component of right to life envisaged in Article 21-Right is not absolute right-Appellant tested HIV(+)-Disclosure by respond­ent hospital to would be life partner of appellant-Claim of appellant that his right of privacy infringed and respondents liable for damages-Not sustainable-Clash between two fundamental rights i.e. right of privacy one person and right to lead a healthy life of another-Right which would advance public morality or public interest would alone be enforced.

       Held : Right to privacy has been culled out of the provisions of Article 21 and other provisions of the Constitution relating to Fundamental Rights read with Directive principles of State Poli­cy. 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 protection of rights and freedoms of others. (Paras 20 & 25)

       Right of Privacy may, apart from contract, also arise out of a particular 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, therefore, 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. Disclosure of even true private facts has the tendency to disturb a person’s tranquility. It may generate may 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, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protec­tion of health or morals or protection of rights and freedom of oth­ers. (Paras 26 & 27)

       Having regard to the fact that the appellant was found to be HIV(+), its disclosure would not be violative of either the rule of confidentiality 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. (Para 28)

       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 was HIV(+). The disease which is communicable would have been positively 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 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” in­cludes right to lead a healthy life so as to enjoy all 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 Ms. Y’s right to lead a healthy life which is her Fundamental Right 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.” (Para 41)

       (iv) Right to privacy-Public disclosure of private facts of patient by doctor-May amount to violation of right of privacy. (Para 26)

       (v) Marriage-Right to Marriage-Is not an absolute Right-It is with duty to inform about his/her ailments to other-So long as a person is not cured from communicable venereal disease or impotency, right to marriage cannot be enforced through court of law and shall be treated to be a suspended right-Infringement of ‘suspended right to marry’ cannot be legally compensated by damage either in Torts or Common Law.

       Held : Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and 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 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. (Paras 29 & 30)

       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 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 maritalties 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 maritalties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman. (Para 35)

       The argument that every young man or, for 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 but this right is not without a duty. If that person is suffering from any communicable venereal disease or is impotent so that 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 respect of which a corresponding 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 be a “SUSPENDED RIGHT”. Infringement of ‘Suspended Right to marry’ cannot be legally compensated by damages either in Torts or common law. (Para 36 & 1)

       (vi) Indian Penal Code, 1860-Sections 269 and 270-Negligent/ Malignant Act likely to spread disease dangerous to life-AIDS-If a person suffer­ing from AIDS knowingly marries a woman and thereby transmits infec­tion to that woman he would be guilty of offences.

       Held : Sections 269 and 270 spell out two separate and distinct offences by providing that if a person, negligently or unlawfully, does an act which he 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 offences indicated in Sec­tions 269 and 270 of the Indian Penal Code. The above statutory provisions thus impose a duty upon the appel­lant 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. (Paras 38 & 39)