Human Rights Hiv
Human Rights Hiv
Human Rights Hiv
Mr. X v. Hospital Z, (1998) 8 SCC 296, varied 2002 SCCL.COM 701 (Civil Appeal
No. 4641 of 1998), Supreme Court of India (1998 & 2002)A, C & Others v. Union
of India & Others, High Court of Judicature at Bombay [Mumbai], Writ Petition
No. 1322 of 1999
Court and date of decision
• The initial decision of the Supreme Court of India in Mr. X v. Hospital Z was
issued on 21 September 1998.
• On 10 December 2002, the Supreme Court reconsidered certain aspects
of its original judgement that had gone beyond the issues originally before it and
that had denied the right to marry to people living with HIV.
• In the interim, the High Court in Bombay [Mumbai] issued its judgement in the
A, C & Others proceeding in 1999, which sought an inter-pretation of the
Supreme Court’s original 1998 judgement in a manner that clearly respected
and protected human rights.
Parties
The appellant Mr. “X” was a person living with HIV whose
confidentiality had been breached by the respondent hospital “Z”.
Remedy sought
• The appellant sought damages for breach of confidentiality which had
led to his marriage being cancelled and ostracism by his community.
Outcome
• The Supreme Court denied Mr. X’s claim for damages, absolving the hospital and
its physician of any liability for having breached his confidentiality, saying this was
justified in the interests of preventing harm to Mr. X’s fiancée. Unnecessarily, it
went on to rule that
• India’s penal code, which criminalize negligent and malignant acts likely to spread
an infectious disease dangerous to life, imposed a positive legal duty on a person
with HIV not to marry.
• The Supreme Court was asked to reconsider this issue; in its subsequent
judgment, it distanced itself somewhat from these statements
Background and material facts
• The Commission
• dismissed his petition on the grounds that he could seek his remedy in a civil
court. He initiated proceedings in the Civil Appellate Division of the Supreme
Court of India.
Legal arguments and issues addressed
The argument of … the appellant [Mr X], therefore, that the respondents [Hospital
Z and the doctor] 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 [to Ms Y] 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.
The Supreme Court concluded its judgement with the
following:
• “AIDS” is the product of indisciplined [sic] sexual impulse. This impulse, being the
notorious human failing if not disciplined, can afflict and overtake anyone how
high soever [sic] or, for that matter, how low he may be in the social strata. The
patients suffering from the dreadful disease “AIDS” deserve full sympathy. They
are entitled to all respects as human beings. Their 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… But, “sex” with them or
possibility thereof has to be avoided as otherwise they would infect and
communicate the dreadful disease to others. The Court cannot assist that person
to achieve that object
Commentary
Following the Supreme Court’s decision, advocates initiated further legal proceed-
ings [A, C & Others v. Union of India & Others] to challenge the court’s statement
• that people living with HIV or AIDS do not enjoy the right to marry. Represented by
the Lawyers Collective
• HIV/AIDS Unit, four people (two of them living with HIV) filed a petition in the High
Court of Judicature at Bombay asking the court to declare:
• that a person living with HIV or AIDS has the right to marry and this right is not lost
or suspended on account of the person’s HIV status;
• that a person with HIV who enters into marriage with a willing partner after
disclosing this fact does not commit an offence under Indian Penal Codethe
• overriding duty of physicians is to preserve the confidentiality of information about
their patients, save for very limited, exceptional cases in which the law may require
them to disclose certain information, such as when a third party appears to be in
imminent danger of harm.
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