My Lords: My right to marry...
By Jyotica Pragya Kumar

"RENDER me justice, my Lords," said the appellant roaringly. "It needs to be appreciated that I am a fully qualified medical doctor. I did my M.B.B.S. from one of the most reputed medical institutes in India. In view of my merit, I was invited to join the state medical and health service as Assistant Surgeon (Grade-I). I was even allowed to join an M.D. course for serving the state with better qualifications. Moreover, I was considered so good and gracious as to be specially deputed by my state government to accompany an ailing VVIP to the Apollo Hospital in Madras where he was posted for surgery. And, imagine, in view of shortage of blood, I even obliged to donate my own blood to save the life to that VVIP: Although it is entirely a different matter that my blood turned out to be HIV positive. But, my Lords, look at the audacity of the Apollo Hospital: By completely overlooking my status as well as the selfless service rendered by me, they revealed my HIV positive status to my sweetheart to whom I dared to propose marriage after ignoring that ignominious fact. See, what they have done to me: See the ruinous result of their disclosure on my personal life:I have been criticised and ostracised by the members of my own family and community. I have been made to resign my coveted post. I have been made to leave my home and hearth. On the top of all this, my proposed marriage to my sweetheart has been called off. All this havoc is due to the outright violation of the basic tenets of the well-established code of medical ethics by the hospital. My right to confidentiality has been trespassed. My right to privacy has been infringed. My Lords, as a citizen of India and for the protection of my fundamental rights, I have come to you. Since the Apollo Hospital has illegally and violently disclosed the undesirable information which was required to be kept absolutely secret under the code of medical ethics, causing me grevious injury, they are liable for exemplary damages to me, my Lords."

Their Lordships silently but supremely spoketh: "Yes, Apollo Hospital did disclose the fact of your HIV positive status to the young lady whom you proposed to marry. As a result of that disclosure, it is patently clear and understandable that your proposed marriage has been cancelled. To that extent, it is also understandable that you have suffered some loss. But, then, it is also true that the timely disclosure of the dreadful disease has saved the precious life of a young lady. Do you think, your rights alone are of paramount consideration? Do you think in the exercise of your rights, you are at absolute liberty to trample on others’ rights?This is not so. You cannot be allowed to do that. In our considered view, timely disclosure by the hospital does not constitute violation of your right to confidentiality, because that right is not absolute; it permits disclosure in the circumstances where there is an immediate health risk to others. Nor your right to privacy is infringed, because even that right could be lawfully curtailed for the prevention of crime, disorder or protection of right or freedom of others. Thus, you must realise that timely disclosure, saving the life of the other person, cannot be termed as a violation of the guaranteed rights. Your right to marry is not absolutely absolute. Hence, your appeal deserves to be dismissed on merits."

This is how we have abstracted the judgement of the Supreme Court in the case of Dr Tokugha Yepthomi V, Apollo Hospital Enterprises and Another, delivered on November 16, 1998. In terms of the popular perception, the effect of the decision is simply this: "Right to marry is not absolute. However, in our view such a perception brings to the fore a couple of issues worth pondering. Should the impact of the Supreme Court decisions be confined to individuals as individuals, or should it extend to individuals as members of collectivity? To put it the other way round, should the Supreme Court merely resolve the conflict between the two contesting parties before it, or should it articulate its decisions in a manner that are more conducive to social order and social stability? We understand that the Supreme Court is empowered, nay, duty bound, to ‘declare’ ‘the law’, the real operative law, to direct the destiny of the whole nation. This is what Article 141 of the Indian Constitution seems to say for all our intents and purposes. But, then, how to go about it?

Max Weber one of the founding fathers of modern sociology, has developed a concept, a sort of methodological tool, called Verstehen (a German word which literally means ‘understanding’ or ‘comprehension’), which enables us to have access to the subjective meanings people give to their actions. It enables us to see the effect of human actions from within, rather than merely from outside. We wish, our Judges could adopt the Verstehen methodology. Let me show, how the use of Verstehen, if applied to the Apollo Hospital case, reveals certain aspects, which otherwise do not come to light.

Verstehen for instance, prompts us to ask: Why did the appellant, who is not just an ordinary lay person but a fully qualified doctor, propose marriage to the young lady, in spite of knowing that he had the potential to transmit the disease to his would-be partner? Did he desire to spread the deadly disease? On this count we find no comment of the court, although, as a matter of first principle, it is axiomatic to say, ‘He who comes to the court to seek justice, must come with clean hands’. Moreover, the timely disclosure of the disease by the hospital needed to be applauded by the court, so that the doctors are encouraged to apply the ethical code more meaningfully. Verstehen also impels us to ask: Why was the doctor ostracised by the members of his own family and community? Why was he compelled to leave his job as well as home? The questions are relevant, because within the value system illness draws sympathy rather than any negative sanction. Normally, the sick are not held personally responsible for their condition. Seemingly, the doctor became HIV positive due to his own moral failures. A comment on this count by the court would have clarified that it is not the disease, but the way it is contracted is looked down upon by the collectivity. If the doctor had become HIV positive due to his own misdoings then his conduct needed to be censured by the court. The censure could have served as a warning device, a sort of punishment "to heal the wounds done to the collective sentiments" (Emile Durkheim). Had the doctor contracted the disease, say, while performing an operation as a surgeon, the societal reaction would have been quite different, for in that case, the doctor could not be held personally responsible for his pathetic condition. In that case, it is just possible, society might have made doctor’s recovery their prime concern. It might have prayed to God for saving the life of the doctor and not to punish him for serving His Own subjects!