Marriage as a Fundamental Right
Can the Supreme Court decide on an issue which was not raised before it? A recent apex court judgement triggered the Campaign for the Right to Marry for HIV positive patients. To appreciate its concern, it is important to understand the facts leading to the apex court judgement.
A doctor (Mr X) had accompanied a relative of a minister to a hospital in another state South India. X’s blood sample that was tested for donation revealed that he was HIV positive. This was not disclosed to him nor to his finance. The hospital disclosed his HIV status to the minister.
On confirmation of his HIV status, X himself called of his marriage. The issue would have ended there. However, on account of the close knit nature of the community to which X belonged to, he was pressured in not only giving up a lucrative career in the State Medical Services, but he had to literally flee his native state.
All because his status had been disclosed to a stranger and thereby to the community at large. It was this that prompted X to file a complaint in the National Consumer Commission for damages.
The Commission declined to entertain X’s complaint on the ground that the civil court would be the appropriate forum. It was to challenge the Commission’s order that X went to the Supreme Court. The issue before the Supreme Court,therefore, was whether the Commission was right in declining to entertain X’s complaint.
An HIV positive person’s right to marriage was not the issue before the Supreme Court at all. (Refer to Dangerous disclosures by Flavia Agnes which appeared on this page on September 22).
The Supreme Court held and rightly, that as a general rule a doctor has to maintain his patient’s confidentiality. However, there are exceptions. It held that in the case of X there was nothing wrong in the hospital having disclosed his HIV status in view of his impending marriage.
The apex court has also not restricted the scope of the disclosure only to the prospective spouse, but apparently allowed disclosure also to unconcerned parties.
The minister in this particular case was not an interested party. Why was he informed? Can a hospital disclose to all and sundry the medical condition of a private indivbidual? Who is then entitled to information of the status of an HIV positive person? In other countries, courts have limited the extent of disclosure to identifiable third parties who are in imminent and real danger.
The campaign has no quarrel with that. The Campaign is not based on the presumption, that all HIV positive patients contract marriages only after disclosure. In fact, the Campaign, believes that an HIV positive person has a legal, moral and ethical duty to inform not only his prospective and/or existing spouse but also his/her sexual partner about his status.
However, in X’s case since he did not know of his own HIV status, there was no question of him informing anybody. On the other hand, the hospital authorities had denied before the National Consumer Commission that they had informed anybody. This aspect was not considered by the Supreme Court.
What is most unfortunate is that the Supreme Court decided on an issue which was not raised before it a HIV positive person’s right to marry. The Supreme Court judgement is categorical……….. “as long as the person is not cured of the [disease…….] the right to marry cannot be enforced through a court of law and shall be treated to be a ‘suspended right.” Later the Supreme Court says that the legal “provisions impose a duty upon (X) not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to the life of the woman whom he marries apart from being an offence.”
What is equally unfortunate is that the apex court arrived as its judgement without hearing the concerned parties such as X. Such an important decision was taken without taking the advantage of the parties pointing out the developments of identical issues in other countries. These would have been of invaluable advantage to the Court.
An HIV is not curable as of today and it is obvious that the judgement means that HIV positive persons can never marry. But the right to marry is recognised internationally as a fundamental human right. It is so under Article 23 of the International Convention on Civil and Political Rights, under Article 16 of the Universal Declaration of Human Rights and under Article 12 of the European Convention of Human Rights.
Our own Supreme Court has repeatedly held that it is a Fundamental Right under Article 21 of our Constitution. Now, the Supreme Court itself has held that a Fundamental Right can only be abridged by a legislation. All the matrimonial laws in the country do not prohibit marriage in case of communicable venereal diseases. These are only grounds of divorce. The Supreme Court, therefore, has no jurisdiction to suspend or abridge a Fundamental Right that too of a whole community.
In ruling about a whole community of HIV positive persons, the Court has only taken into consideration a couple who is about to get married. What about a couple, who contracts HIV after their marriage? Is their marriage suspended or abridged? What about HIV negative person who give their informed consent to marry HIV positive persons? What about a couple where both are HIV positive? Why should they not be allowed to marry? The Supreme Court has not taken these into consideration.
That apart,if the judgement is effectively implemented to prohibit marriage of HIV positive persons it will mean, apart from proliferating the business of false HIV negative certificates, driving the disease underground. Experience in other countries shows that restricting rights of HIV positive persons invariably has negative public health implications.
A genuine concern is that of the innocent bride who unknowingly becomes HIV positive after her marriage. The question before HIV activities is how to enable the woman, whether a prospective or existing spouse or partner to have sex safely with her spouse or partner. Culturally, in India no woman can insist on her spouse using a condoms that she is protected. Firstly because the relationship between the man and woman is totally unequal.
The wife can demand her sexual rights in the bed amongly under the threat of divorce, which most Indian women are not prepared there. Fortunately, the HIV epidemic has forced us to raise these questions most urgently. More importantly, we have to answer them positively to empower women so that they can negotiate sex safely.
By changing laws which are unjust, by encouraging pre-marital counselling, couples can be helped to cope with that they are letting themselves in for. By empowering woman we may be able to reduce partly the transmission of the disease that will benefit society as a whole. This is the greatest challenge before the campaign.
