“A citizen has a right to safeguard the 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," said the Supreme Court in R Rajagopal v State of Tamil Nadu (https://indiankanoon.org/doc/501107).
Even as the basic human right, the Right of Privacy is not 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.
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.
Marriage, RTI & privacy
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.
Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. 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. The Supreme Court has referred to Hindu, Muslim, Parsi Marriage laws that provided venereal disease in communicable form as a ground for divorce.
As per the Hindu Marriage Act Section 13, any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: (v) has been suffering from venereal disease in a communicable form.
The Section 2 of the Dissolution of Muslim Marriages Act, 1939 sets but that if the husband is suffering from a virulent venereal disease, a woman married under the Muslim Law to such person shall be entitled to obtain a decree for dissolution of her marriage.
Under the Parsi Marriage and Divorce Act, 1936, one of the grounds for divorce set out in the Section 32 is that the defendant has, since the marriage, infected the plaintiff with venereal disease.
The Section 27 of the Special Marriage Act says that the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married is suffering from venereal disease in a communicable form.
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 is not physically healthy and that he is suffering from a disease which is likely to be communicated to her.
The right to marry and the 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."
A crime also Section 269 of the Indian Penal Code says: s269. Negligent act likely to spread infection of disease dangerous to life, Whoever unlawfully or negligently 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 or a term which may extend to six months, or with fine, or with both.
Section 270 IPC says: 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."
Can he contend that the hospital, in this situation, should have maintained strict secrecy? Their silence would have made them particeps criminis (an accomplice in crime). 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.
On this clash of two Fundamental Rights , the SC said: “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" (See : Legal Duties : Allen) "AIDS" is the product of indisciplined sexual impulse”.
The person, whose information was disclosed, sought an action in damages, by moving the National Consumer Disputes Redressal Commission, which was rejected and then he appealed to the Supreme Court. Dealing with the aspect of privacy, the Court observed: 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.
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 or that has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expected to live with the respondent.