Mr. X v.

Hospital Z

IN THE HONBLE SUPREME COURT AT NEW DELHI

Case concerning, Right to Privacy

Mr. X (Appellant) Vs. Hospital Z (Respondent)

On submission to the Honble SUPREME COURT OF INDIA

Memorandum on behalf of the Respondent

DEEPAK KUMAR, SEM-III BATCH-X ROLL-33 MEMORIAL ON THE BEHALF OF RESPONDENT Page 1

Mr. X v. Hospital Z TABLE OF CONTENTS

1. INDEX OF AUTHORITIES -------------------------------------3 LIST OF CASES.....................................................................3 STATUES AND CHARTERS..................................................3 LIST OF BOOKS.....................................................................3

2. ABBREVIATIONS -------------------------------------------------4 3. STATEMENTS OF FACTS --------------------------------------5 4. ISSUES RAISED ---------------------------------------------------6 5. SUMMARY OF ARGUMENTS ---------------------------------7 6. WRITTEN SUBMITTION -------------------------------------8 7. PRAYER ----------------------------------------------------------11 ________________________________________________________________

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 2

Mr. X v. Hospital Z INDEX OF AUTHORITIES

LIST OF CASES-

Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295: (1964) 1 SCR 332 Govind v. State of Madhya Pradesh AIR 1975 SC 1378 Peoples Union of Civil Liberties v. Union of India AIR 1991 SC 207,211 MacDonald v. Clinger 446 N.Y.S.2d 801 Wojcik v. Aluminum Co. of America 183 N.Y.S.2d. 351 Chizmar v. Mackie 896 P.2d 196 (Alaska 1995)

STATUES AND CHARTERSArticle 21 of Indian Constitution, Sec 269 & 270 of Indian Penal Code.

LIST OF BOOKS1. Jain M.P, 6th Edition (2011) Indian constitutional Law Butterworths Wadhwa Nagpur; 2. Basu Durga Das, (2011) Introduction to constitution of India Haryana: Lexis Nexis Butterworths Wadhwa Nagpur; Haryana: Lexis Nexis

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 3

Mr. X v. Hospital Z LIST OF ABBREVIATION

1. A.I.R. 2. App. 3. Approx. 4. Ed. 5. Etc. 6. Honble 7. No. 8. Ors. 9. pg. 10. Res. 11. SC 12. SCC 13. SEC 14. v. : All India Reporter : Appellant : Approximately : Edition. : etcetera : Honorable : number : Other : page : Respondent : Supreme Court : Supreme Court Cases : Section : Versace

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 4

Mr. X v. Hospital Z
Statement of facts
The Appellants blood was to be transfused to another and therefore a sample thereof was taken at the Respondents Hospital. 2. The Appellant was found to be H.I.V.(+). 3. On account of disclosure of the fact that the Appellant was H.I.V.(+) by the Hospital authorities without the express consent of the Appellant, the Appellants proposed marriage to Ms A which had earlier been accepted, was called off. 4. Moreover, the Appellant was severely criticized and was also ostracized by the community to such an extent that he had to leave is place of work and residence and shift to a new city. 5. The Appellant approached the National Consumer Dispute Redressed Commission for damages against the Respondents on account of injury and damages suffered to him because of disclosure of information required to be kept secret under medical ethics by the Hospital authorities. 6. The Commission however dismissed the complaint on the ground that the Appellant could seek his remedy in the Civil Court. 7. The Appellant thus appeared before the Supreme Court contending that the principle of Duty of care applicable to persons in medical profession included the Duty to maintain confidentiality and the said duty had a correlative right vested in the patient that whatever came to the knowledge of the doctor would not be divulged. 8. The Appellant contended that for violating the above duty as well as the Appellants right to privacy, the Respondents were liable to pay damages.

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 5

Mr. X v. Hospital Z CONTENTIONS RAISED

Whether the respondent was guilty of violating the Appellants right to privacy guaranteed under article 21 of the constitution?

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 6

Mr. X v. Hospital Z Summary of Pleadings

The respondents were not guilty of violating the Appellants right to privacy guaranteed under article 21 of the constitution.
It is humbly submitted that, in the instant case the right to privacy of appellant is the Right to information and Right to Healthy life of the other. The patient suffering from HIV/AIDS enjoy same privileges and are granted equal rights. But to spread infections of disease dangerous to life is a criminal offence and Infected with a venereal disease like HIV/AIDS is grounds for divorce under Indian matrimonial laws, a person suffering from such a disease has no right to get married until they are cured.

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 7

Mr. X v. Hospital Z WRITTEN SUBMISSION

The respondents were not guilty of violating the Appellants right to privacy guaranteed under article 21 of the constitution.
1) There is no right as such as right to Privacy enshrined under the fundamental rights in the constitution of India. It is humbly submitted that the literal meaning of privacy, as defined in the New Oxford English Dictionary1 is the absence or avoidance of publicity or display; the state or condition from being withdrawn from the society of others, or from public interest; seclusion. The Blacks Law Dictionary2 refers to privacy as the right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned It is humbly submitted that the constitution does not grant in specific and express terms any right to privacy as such. Right to privacy is not enumerated as a fundamental right in constitution. However, such a right has been culled by the Supreme Court from article 21 and several other provisions of the Constitution read with the Directive Principals of State Policy. In case of Kharak Singh v. State of Uttar Pradesh3 a question was raised whether the right to privacy could be implied from the existing Fundamental Rights, in its majority judgment in the decision of right to privacy held that Our Constitution does not in terms confer any like constitutional guarantee In Govind v. State of Madhya Pradesh 4 the Supreme Court undertook a more elaborated appraisal of right to privacy and held that Right to privacy is not absolute; reasonable restrictions can be placed thereon in public interest and under procedure established by law The Supreme Court observed in Peoples Union of Civil Liberties v. Union of India5
1 2

The New Oxford Dictionary, (Vol. 2, 1993) Blacks Law Dictionary, (6th Ed., 1990). 3 AIR 1963 SC 1295: (1964) 1 SCR 332 4 AIR 1975 SC 1378

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 8

Mr. X v. Hospital Z
We have; therefore, no hesitation in holding that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed "except according to procedure established by law". In present case Mr. X was suffering from HIV/AIDS which is communicable disease and there is no such proper cure of the disease. The General Medical Council of Great Britain in its guidance of HIV infection and AIDS has provided as under: "Where diagnosis has been made by a specialist and the patient after appropriate counselling 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 healthcare team at serious risk. Occasionally the doctor may wish to disclose a diagnosis to a third party other than a health-care professional. The Council think that the only ground 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." Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure in the circumstances enumerate above under which public interest would override the duty of confidentiality, particularly where there is an immediate or future health risk to others. In case of MacDonald v. Clinger6 it was held that Disclosure of confidential information to a spouse will be justified whenever there is a danger to the patient, the spouse, or another person; otherwise information should not be disclosed without authorization. Also in Wojcik v. Aluminum Co. of America7, holding that a physician had a duty to warn the spouse of a patient diagnosed with tuberculosis where there was a foreseeable risk that the spouse would be exposed to the disease.

5 6

AIR 1991 SC 207,211. 446 N.Y.S.2d 801 7 183 N.Y.S.2d. 351

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 9

Mr. X v. Hospital Z
In Chizmar v. Mackie8 the Supreme Court of Alaska refused to hold a physician liable for breach of confidentiality after informing a patient's spouse of her condition without her authorization. In the light of the above the counsel humbly submits that in present case Mr. X suffering from HIV/AIDS which is communicable in form and appellant has no right to Privacy for its HIV/AIDS disclosure as it is in public interest. 2) Crime against society. It is humbly submitted that Marriage is the sacred union, legally permissible. It has to be mental, psychological and physical union. 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. Every system of matrimonial law suffering from venereal disease, in a communicable form, is ground of Divorce. Section 13(i)(v) of the Hindu Marriage Act, 1955 Section 2 of the Dissolution of Muslim Marriages Act, 1939, Parsi Marriage and Divorce Act, 1936, Indian Divorce Act, 1869, Section 27 of the Special Marriage Act says about dissolution of marriage on ground of venerable disease. Therefore the marriage between Mr. X and Y would certainly lead to divorce and this would be the Ys infringement of Right to Life and Information Sections 269 and 270 of the Indian Penal Code provide as under: "269. Negligent act likely to spread infection of disease dangerous to life - whoever unlawfully or negligently does not act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. 270. Malignant act likely to spread infection of disease dangerous to life - whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." In the light of the above the counsel humbly submits that in present case if Mr. Xs Blood Report wouldnt be disclosed then Y too would have been infected with the dreadful disease if the marriage had taken place and consummated.
8

896 P.2d 196 (Alaska 1995)

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 10

Mr. X v. Hospital Z PRAYER

In light of the facts stated, arguments advanced and authorities cited, the Appellant, humbly Prays that this Honorable Court, to adjudge and declare that:

I. II. III.

Respondent should not be liable. And No compensation to be given to Appellant. Or The Court may also be pleased to pass any other order, which the court may deem fit in light of justice equity and good conscience.

All of which is most humbly submitted before this Honble Court.

Counsel for Appellant Deepak Kumar

MEMORIAL ON THE BEHALF OF RESPONDENT

Page 11