INTRODUCTION

AIDS was first clinically observed in 1981 in the United States. The initial cases were a
cluster of injection drug users and gay men with no known cause of impaired immunity who
showed symptoms Pneumocystis jirovecci pneumonia(PJP), a rare opportunistic infection that
was known to occur in people with very compromised immune systems. Soon thereafter,
additional gay men developed a previously rare skin cancer called Kaposi Sarcoma (KS). Many
more cases of PJP and KS emerged, alerting U.S Centers for Disease Control and Prevention
(CDC) and a CDC task force was formed to monitor the outbreak. The earliest retrospectively
described case of AIDS is believed to have been in Norway beginning in 19661.

A number of HIV infected patients in developing and developed countries are often
diagnosed late. For example, studies from Uganda and India reported that the prevalence rate of
late presentation for HIV care was 40, 45 and 46% respectively. In Europe, the prevalence of LP
has been reported to be roughly between 15–66%. The major factors affecting late presentation
for HIV care included age, sex, educational status, not having a permanent house, having two
and more lifetime sexual partners, having contact with female sex workers (FSW), poor social
support, fear of stigma, fear of losing job, fear of drug side effects, intravenous drug use, and
reported severe illness2.

The epidemic is no longer largely confined to identifiable high-risk groups, and by far, the
most common route for infection is sexual transmission. Interventions remain challenging,
needing to account for the complex socio-economic and cultural influences and taboos associated
with the sexual behaviours leading to transmission. Because of its behavioural and pathological
determinants, geographic spread and the lack of progress in the development of affordable
treatment and health infrastructure, behavioural interventions to prevent HIV infection remain
the most cost-effective and sustainable way of managing the epidemic. Such a complex set of
bio-behavioural risk factors and structural determinants has demanded innovation in public
health interventions and bold political leadership. In parallel with the evolution of the HIV
epidemic, the science and the art of public health interventions have also had to go through a
radical transformation. These strategies represent a set of tools that can be used in different
combinations to plan and deliver effective and sustainable public health interventions that are
built on a much broader theoretical base than previously had been the case—balancing individual
responsibility with social and governmental responsibility for public health improvement3.

India is one of the largest and the most heavily populated countries in the world,with
over one billion people,at least three million are currently living, with HIV. The transmission of
HIV is no longer confined to high risk urban populations, but it speading across rural settings as
well. This trend is a cause for concern as AIDS is increasingly hampering social and economic

1
https://en.wikipedia.org/wiki/HIV visit on 18th 10.2018
2
https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0173928 visit on 18th 10.2018
3
https://academic.oup.com/heapro/article/30/2/270/562287 visit on 18th 10.2018
development throughout the world. As a second most populous nation in the world,even a small
increase in India’s HIV/AIDS prevalence rate would represent a significant component of the
world’s HIV/AIDS burden. Thus the judiciary plays a vital role to reduce the burden of
HIV/AIDS, in the absence of any legislation, and to lead our country in the path of progress.
ACQUIRED IMMUNE Deficiency Syndrome (AIDS) is a dreadful disease without any cure and
it can only be prevented. Therefore a person who is found to be HIV positive, nowadays is
isolated by the society and sometimes even his own family members and blood relatives, under
the misconception that AIDS is easily communicable. At the same time, it cannot be disputed
that even the AIDS patients have certain fundamental rights and legal rights which they cannot
be deprived of merely because they have AIDS.it is in this background the Supreme Court of
India has given a landmark judgement, resolving certain complex legal issue.

CRITICAL ANALYSIS ON CASE Mr. X Vs. HOSPITAL Z4 ON AIDS

FACT OF THE CASE:

The appellant after obtaining the Degree of MBBS in 1987 from 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. Thereafter, the appellant joined the MD Pharmacology
Course though the continued in the Nagaland State Service on the condition that he would
resume his duties after completing the MD Course. In September, 1991 the appellant joined the
further Course of Diploma in Ophthalmology which he completed in April, 1993. In August,
1993 he resumed his duties in the Nagaland State Health Service as Assistant Surgeon Grade-I.

One Itokhu Yepthomi who was ailing from a disease which was provisionally diagnosed as
Aortic Anuerism was advised to go to the Apollo Hospital at Madras and the appellant was
directed by the Government of Nagaland to accompany the said patient to Madras for treatment.
For the 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 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. Akali which was accepted and the
marriage was proposed to be held on December 12, 1995. But the marriage was called off on the

4
SC/0733/1998
ground of blood test conducted at the respondent’s hospital in which the appellant was found to
be HIV(+). The appellant went again to the respondents’ hospital at Madras where several tests
were conducted and he 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 left
Kohima (Nagaland) around November 26, 1995 and started working and residing at Madras5.

ISSUES OF THE CASE:

 Whether the Respondents were guilty of violating the Appellant’s right to privacy
guaranteed under Article 21 of the constitution of India?
 Whether the respondents were guilty of violating the duty to maintain secrecy under
Medical Ethics?
 Whether the appellant was entitled to compensation from the respondents?

RULES INVOLVED IN THE CASE:

1) Section 20A of Indian Medical Council Act, 1956

2) Indian Medical Council (Amendment) Act, 1964
3) Article 21 of Constitution of India
4) Sections 26, 269 and 270 of Indian Penal Code, 1860
5) Section 13 (1) of Hindu Marriage Act, 1955
6) Section 2 of Dissolution of Muslim Marriage Act, 1939
7) Section 32 of Parsi Marriage and Divorce Act, 1936
8) Section 10 of Indian Divorce Act, 1869
9) Section 27 of Special Marriage Act, 1954

RATIO DECIDENDI

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 of future health risk
to others. 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,

5
https://scholarticles.wordpress.com/2015/09/02/ac2/ visit on 18th 10.2018
vested in the appellant was not enforceable in the present situation. 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. Akali 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. Mental and
physical health is of prime importance in a marriage, as one of the objects of the marriage is the
procreation of equally health 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 divorce6.

JUDGMENT OF THE SUPREME COURT:

The Judgement of the Supreme Court was as follows:

1. In deciding the first issue, the Court held that in the event of a conflict between the Appellants
fundamental right to privacy and Ms As fundamental right to be informed about any threat to her
life/health, in such an event the Latter's right to be informed will override the Appellants right to
privacy. Hence the Court held the Respondents not guilty on the first count.

2. In deciding the second issue, the Court held that the duty to maintain secrecy in every Doctor-
Patient relationship was also not absolute and such duty could be broken and hence secret
divulged where compelling public interest so requires. Hence the Court held the Respondents not
guilty on the second count as well.

3. The Court further held that The Appellants right to marry was suspended until complete cure
of the Appellants dreadful disease. The Court based this decision on various Statutes which give
right to spouse to seek divorce on ground of the other suffering from a communicable venereal
disease such as AIDS.

4. The Court held that in the event the Appellant did decide to marry while suffering from such
dreadful disease, he shall be punishable under section 269 & 270 of the Indian Penal Code.

5. The court held that AIDS is the product of undisciplined sexual impulse. This impulse being a
notorious human failing if not disciplined can afflict and overtake anyone however high or low
he may be in social strata. The Court cannot assist that person to achieve that object.

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.

6
Ibid(5)
In National Consumer Disputes Redressal Commission:

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 ethics was disclosed illegally and, therefore, the respondent was liable
to pay damages. The Commission dismissed the Petition as also the application for interim relief
summarily by order dated 3rd July, 1998 on the ground that the appellant may seek his remedy in
the Civil Court. Learned counsel for the appellant has vehemently contended that the principle
of" "duty of care" as applicable to persons in medical profession. Includes the duty to maintain
confidentiality and since this duty was violated by the respondents, they are liable in damages to
the appellant.

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: Hippocrates lived and practised as a Physician between third and
first Century B.C. He has been referred to by Plato as a famous Ascleplad who had philosophical
approach to medicine. His manuscripts, the Hippocratic Collection (Corpus Hippocracticum),
contained the Hippocractie Oath which is reproduced below:

"I swear by Apollo the physician and Aesculapius and health and all-heal and all the gods
and goddesses that according to my ability arid judgment I will keep this path 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 teach them this art if they shall wish to learn it without fee 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. 1 will follow that system of regimen which,
according to my ability 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 neither
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 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 rny 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 reverse be
my lot."
APPLYING THE INDIAN MEDICAL COUNCIL ACT:

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 (Amendment) Act 1964 provides as under:

"Professional Conduct: (1) The Council may prescribe the standards of professional con-
duct and etiquette and a code of ethics for medical practitioners, (2) Regulations made by the
Council under sub-section (1) may specify which violations thereof shall constitute infamous
conduct in any professional respect, that it is to say, professional misconduct, 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:

“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, such regulations may provide for

the standards of professional conduct and etiquette and code 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 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 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 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 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 arid 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 &
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 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 health risk to others.

GENERAL MEDICAL COUNCIL OF GREAT BRITAIN

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

"When diagnosis has been made by a specialist and the patient after appropriate counseling,
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 failure to disclose would put the
health of the health- care team at serious risk. All people receiving such information much
consider themselves to be under the same obligations of confidentiality as the doctor principally
responsible for the patient's care. Occasionally the doctor may wish to disclose a diagnosis to a
third party other than a health-care professional. The Council thinks that the only grounds for this
are when there is a serious and identifiable, risk to a specific person. Who, if not so informed
would be exposed to infection. A doctor may consider it a duty to ensure that any sexual partner
is informed regardless of the patient's own wishes.

CODE OF MEDICAL ETHICS

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, 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 rnarriage
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 situation7.

Right to Privacy of AIDS patients:

Right to privacy has been culled out of the provisions of Article 21 arid other provisions of the
Constitution relating to Fundamental Rights read with Directive Principles of State Policy. It was
in this context that it was held by this Court in Kharuk Singh v. Stale of Uttar Pradesh8, 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 & Anr9, in which the origin of "right to privacy" was traced and a
number of American decisions, including Munn v. Illinois’10 and Wolf v. Colorado11, and
various Articles were considered arid it was laid down ultimately, as under:

“Depending on the character and antecedents of the person subjected to surveillance as also
the objects and the limitation under which surveillance is made, it cannot be said surveillance by
domiciliary visits would always be unreasonable restriction upon the right of privacy. 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."

Kharak Singh v. State of Punjab12 and Gobind v, State of Madhya Pradesh13 came to be
considered again by this Court in Malak Singh & Ors v. State of Punjab & Ors14 and the view
taken earlier on the right of privacy was reiterated.

In case R. Rajagopal and RR Gopal & Anr. v. State of Tamil Nadu & Ors15, the right of privacy
vis-a-vis the tight of the Press under Article 19 of 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
this country by Article 21. It is a "right to be let alone:" A citizen has a right to safeguard the

7
https://indiankanoon.org/doc/382721/ visit on 18th 10.2018
8
AIR 1963 SC 1295
9
[1975] 2 SGC 148
10
(1877) 94 US 113
11
(1949) 338 US 25
12
Supra 8
13
Supra 9
14
[1981] 1 SCC 420
15
[1994] 6 SCC 632
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education
among other matters. None can publish anything concerning the above matters without his
consent - whether truthful of otherwise and whether laudatory or critical. If he does so, he would
be violating the right to privacy of the person concerned 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,"

Right to Health Vs Right to Privacy:

As a result of the judiciary invoke the theory of emanation from the article 21, it has now
been firmly established that both the right to privacy and the right to health have acquired the
status of fundamental right.in the instance case obviously there was a conflict between the right
to privacy of an AIDS patient and to healthy life oh his fiancée the court with dealing with such a
conflict observed.

“Where there is a clash of two fundamental rights, as in the instance case, namely the
appellant’s right to privacy as a part of right to life and Ms. Y 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 the court”.

Thus the court has emphatically declare that if there is a conflict between fundamental right
of two parties, that right which advance public morality or public interest would be enforceable
probably relying upon the concept of utilitarianism.

The foregoing analysis makes it clear that the Supreme Court has delivered an important
judgment capable of far reaching consequences, affecting the right of AIDS patients in India.
This is a welcome step, particularly because it dispels many most misconceptions about the right
of unfortunate AIDS victims.

The Supreme Court has delivered a timely and landmark judgment in the instant case.
However it may not be out of the place to mention here that judiciary has declared in many cases
which are dealt, including this case the government jobs or services cannot be denied to AIDS
patients.
Comment on the Judgment of the Supreme Court

By Anupam Tripathi(Advocate):

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 the author humble opinion, the above Judgment was a mistake. The 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. Furthermore 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 As
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 patients who were already dealing every moment 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 noteworthy 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 isn’t 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 from 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 recognize that its decision would impact not just the Appellant
but the entire AIDS struck community at large.16

16
http://www.legalservicesindia.com/articles/a1ds.htm visit on 18th 10.2018
[By Anupam Tripathi]
CONCLUSION

“AIDS” is the product of indiscipline sexual impulse. This impulse, being the notorious human
failing if not disciplined, can afflict and overtake anyone how high so ever or, for that matter,
how low he may be the social strata. The patients suffering from dreadful disease “AIDS”
deserve full sympathy. They are entitled to all respects as human beings. The 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, even if they
want go into marriage according personal life the society should be more sympathy on them.

In this case the hospital remain as the main principal.

BIBLIOGRAPHY

1. STATUTE
a) Section 20A of Indian Medical Council Act, 1956
b) Indian Medical Council (Amendment) Act, 1964
c) Article 21 of Constitution of India
d) Sections 26, 269 and 270 of Indian Penal Code, 1860
e) Section 13 (1) of Hindu Marriage Act, 1955
f) Section 2 of Dissolution of Muslim Marriage Act, 1939
g) Section 32 of Parsi Marriage and Divorce Act, 1936
h) Section 10 of Indian Divorce Act, 1869
i) Section 27 of Special Marriage Act, 1954

INTERNET SOURCE

1. http://www.legalservicesindia.com/articles/a1ds.htm visit on 18th 10.2018

2. https://indiankanoon.org/doc/382721/ visit on 18th 10.2018
3. https://scholarticles.wordpress.com/2015/09/02/ac2/ visit on 18th 10.2018
4. https://en.wikipedia.org/wiki/HIV visit on 18th 10.2018
5. https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0173928
Visit on 18th 10.2018
6. https://academic.oup.com/heapro/article/30/2/270/562287 visit on 18th 10.2018
 Table of Case
Si.no
1 Kharuk Singh v. Stale of Uttar Pradesh
2 Gobind v. State of Madhya Pradesh & Anr
3 Munn v. Illinois
4 Wolf v. Colorado
5 Kharak Singh v. State of Punjab
6 Malak Singh & Ors v. State of Punjab & Ors
.7 R. Rajagopal and RR Gopal & Anr. Vs. State of Tamil Nadu & Ors ,