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IN THE HON'BLE SUPREME COURT OF INDIVA

Special Leave Petition No. of 2023

DR. SIDDHARTHA (PETITIONER)

v.

UTTRANCHAL STATE MEDICAL AND HEALTH CENTER AND OTHERS

(RESPONDENT)

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIVA

-MEMORIAL ON BEHALF OF THE PETITIONERS-

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TABLE OF CONTENTS

Table of contents.........................................................................................................2

Index of authorities....................................................................................................3

Statement of jurisdiction…........................................................................................5

Statement of facts......................................................................................................6

Statement of issues.....................................................................................................8

Summary of arguments..............................................................................................9

Arguments advanced-

1. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART.

136 OF THE CONSTITUTION OF INDIVA IS MAINTAINABLE?
1.1. The petition is filed as a Special leave petition as the matter involves
substantial question of law ………………………………………..…10
1.2. The decision of lower court causes injustice……….……………...…
12

2. WHETHER DUTY TO CARE AND RIGHT TO PRIVACY HAS

BEEN INFRINGED.
2.1. Duty to care violated………………………………………………13
2.2. Right to Privacy infringed………………………………………….18
2.3. Breach of confidentiality violated…………………………………20

3. WHETHER PROVISIONS OF ANY OTHER LAW ARE VIOLATED

3.1. Defamation……………………………………………………………23
3.2. Negligence…………………………………………………………… 26

4. WHETHER THE RESPONDENTS ARE LIABLE TO PAY DAMAGES

4.1. For breach of duty to care ………………………………………….…27
4.2. For breach of confidentiality and Right to privacy.……….….…….…27
4.3. In Law of Torts for Defamation…………………....……………….…27
4.4 In Law of Torts for Negligence …………………....…………………..27
The Prayer……………………………………………………………………..28

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INDEX OF ATHORITIES

LEGISLATIONS’ REFERRED

1. THE CONSTITUTION OF INDIA, 1950

2. THE INDIAN PENAL CODE, 1860
3. INDIAN MEDICAL COUNCIL ACT, 1956
4. INDIAN MEDICAL COUNCIL AMENDMEND ACT, 1964

CASES REFERRED
1. Haryana State Industrial Corporation. v.Cork Mfg.Co.(2007)8 SCC 359…...10
2. Pawan Kumar v. State of Haryana, (2003)11 SCC 241……………………...11
3. C.C.E v Standard Motor Products, (1989) AIR 1298………………………..11
4. Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC
214……………………………………………………………………………11
5. Balakrishna v. Rmaswami, (1965) AIR 195………………………………....11
6. Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212…..11
7. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co.
Ltd. (1962) AIR 1314…………………………………………………....11
8. Tirupati Balaji Developers Pvt. ltd. vs. State of Bihar AIR 2004 SC 2351.....12
9. Paritam singh vs punjab , AIR 1950 SC 169…………………………………12
10. Paschim Banga Khet mazdoor Samity & ors v. State of WB & ors (1996)4
SCC 37……………………………………………………………………….16

11. Paramanand Katara v. Union of India 1989 AIR 2039, 1989 SCR (3) 997… 17
12. Punjab and Others V. Mohinder Singh Chawala AIR(1997)2 SC 83………. 17
13. State of Punjab v Ram Lubhaya Bagga. (1998) 4 SCC 117………………….17
14. Munn v. Illinois, (1877) 94 US 113…………………………………………...18
15. Wolf v. Colorado, (1949) 338 US 25………………………………………....18
16. Malak Singh & Ors v. State of Punjab & Ors., [1981] 1 SCC 420…………...18
17. Mr. X v. Hospital Z Appeal (civil) 4641 of 1998…………………………….22
18. Taylor v. Hall, (1742) 2 Stra 1189…………………………………………………….25
19. Blyth v. Birmingham Water Works Co., (1856) 11 Ex 781………………...………...26

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BOOKS REFERRED
1. Durga Das Basu, Commentary on the Constitution of India (8th ed. 2008)
2. Durga Das Basu, Human Rights in Constitutional Law (3rd ed. 2008).
3. Dr. L.M. Singvi, Jagadish Swarup Constitution of India (3d ed. 2013).
4. Dr. L.M. Singhvi, Fundamental Rights and Constitutional amendments (1st ed.
1971).
5. H.M. Seervai, Constitutional law of India (4th ed. 2008).
6. Dr. J. N. Pandey, Law of Torts with Consumer Protection Act and Motor
Vehicles Act (9th ed. 2014)
7. P. H. Winfield, A Textbook on the Law of Torts
8. P. H. Winfield, Cases on Law of Torts
9. Ratanlal Dhirajlal, The Law of Torts
10. Ratanlal and Dhirajlal, The Indian Penal Code
11. Ratanlal and Dhirajlal, The Law of Crimes
12. H. S. Gour, Penal Law
13. Y.V. RAO’s Law Relating to Medical Negligence

TREATIES AND CONVENTIONS

1. International Health Conference by WHO in 1946-1947
2. International Code of Medical Ethics, 1949

WEBSITES REFERRED
1. Manupatra Online Resources, http://www.manupatra.com.
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica
3. Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
4. SCC Online, http://www.scconline.co.in.
5. Oxford Dictionary, http://www.oxforddictionaries.com
6. Wikipedia the free encyclopedia, https://en.wikipedia.org/wiki/Main_Page
7. Black's Law Dictionary - Free Online Legal Dictionary
8. Farlex Partner Medical Dictionary

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Indiva

under Article 136 of the Constitution of Indiva. The article 136 of
Constitution of Indiva reads as hereunder:

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

(1) Notwithstanding Anything In This Chapter, The Supreme Court May,

In Its Discretion, Grant Special Leave To Appeal From Any Judgment,
Decree, Determination, Sentence Or Order In Any Cause Or Matter
Passed Or Made By Any Court Or Tribunal In The Territory Of India.

(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination,

Sentence Or Order Passed Or Made By Any Court Or Tribunal
Constituted By Or Under Any Law Relating To The Armed Forces.”

-----------------------------------------------------------------------------------------

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STATEMENT OF FACTS

1. Indiva a country in south-east Asia has a republican form of Government. The

Constitution of Indiva declares it to be a sovereign, secular, democratic republic
which envisages the principles of justice, equality, and fraternity to the citizens of
Indiva.

2. Dr. Siddhartha completed his M.B.B.S. in 2003 from Samrat Institute of Medical
Sciences and Research, Bhairavgarh. In June 2008, he joined the Uttranchal State
Medical and health Centre and continued there as a medical officer.

3. In October 2010, Ms. Suvarna, the younger sister of Dr. Siddhartha who was a
student and staying with him, met an accident on way to her college. The police
rushed to the scene and the doctor present on duty, after considering the condition of
Ms. Suvarna advised Dr. Siddhartha to arrange for 10 bottles of blood to be transfused
to her, to save her life as there was profuse bleeding.

4. Dr. Siddhartha’s blood group matches with that of her sister. He donated one bottle
to Ms. Suvarna. All the bottles collected were tested for Hepatitis B, HIV and other
contagious diseases. The blood donated by Dr. Siddhartha was the reason that it was
carrying HIV. However, this fact was not disclosed to Dr. Siddhartha.

5. In October 2012 Dr. Namita, who works as a medical officer in the same Hospital
got engaged to Dr. Siddhartha and their marriage was to be solemnized during
Christmas vacation.

6. Dr Shekhar, the Head of Pathology Department in the same hospital, carried out
pathological investigations in respect of the blood donated by Dr. Siddhartha. Dr.
Shekhar when received information about the engagement of Dr. Siddhartha and Dr.
Namita, disclosed the fact to Dr. Namita that Dr. Siddhartha is a HIV carrier.

7. The intended marriage was called off by Dr. Namita’s Family and Dr.
Siddhartha was severely criticized and was ostracized by the community.

8. Aggrieved by the disclosure of medical report by Dr. Shekhar, Dr. Siddhartha

approached the High Court for damages against the hospital authorities and Dr.
Shekhar on the ground that the information, which was to be kept confidential, was

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disclosed and the said disclosure by Dr. Shekhar amounts to violation of right of
privacy which resulted in disrepute to Dr. Siddhartha.

9. The Hon’ble High Court dismissed the petition on the ground that there was no
breach of confidentiality and violation of right to privacy of the petitioner.

10. Being aggrieved by the judgement of the High Court Dr. Siddhartha has moved to
the Supreme Court of Indiva vehemently contending that the principle of “Duty to
Care” as applicable to the people in medical profession and the duty to maintain
confidentiality was violated by Dr. Shekhar and he is liable along with hospital
authorities to pay damages. It is also contended by Dr. Siddhartha that this ‘right to
privacy’ is infringed which is his fundamental right as per the Constitution.

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STATEMENT OF ISSUES

1. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER

ART. 32 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE
1.1. The petition is filed as a Special leave petition as the matter involves
substantial question of law
1.2. The decision of lower court causes injustice

2. WHETHER DUTY TO CARE AND RIGHT TO PRIVACY HAS

BEEN INFRINGED.
2.1. Duty to care violated
2.2. Right to privacy violated
2.3. Breach of confidentiality violated

3. WHETHER PROVISIONS OF ANY OTHER LAW ARE VIOLATED

3.1. Defamation

3.2. Negligence

4. WHETHER THE RESPONDENTS ARE LIABLE TO PAY DAMAGES

4.1. For breach of duty to care

4.2. For breach of confidentiality and right to privacy
4.3. In Law of Torts for defamation
4.4. In Law of Torts for Negligence

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SUMMARY OF ARGUEMENTS

1. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 32

OF THE CONSTITUTION OF INDIA IS MAINTAINABLE?
Yes. The Petitioner humbly submits before this Hon’ble Court that the Special Leave
Petition against the judgment of the Hon’ble High Court (hereinafter as HC) is
maintainable under Article 136 of the Constitution of India. It is contended that the
jurisdiction of Supreme Court (hereinafter as SC) under Article 136 can always be
invoked when a question of law of general public importance arises and even
question of fact can also be a subject matter of judicial review under Art.136.

2. WHETHER DUTY TO CARE AND RIGHT TO PRIVACY HAS BEEN

INFRINGED?
The Petitioner contends that the Respondents have violated the right to privacy of
the Petitioner. The information which was intended to be kept a confidential and
was part of the doctor-patient relationship was disclosed to the general public
bringing great disrepute to the Petitioner. All practicing medical professionals
having a duty to care related to their patients, and not to disclose any fact which is
personally related to the patient and which would be deterrent to the reputation of
the petitioner. Hence the rights of the Petitioner have been violated.

3. WHETHER PROVISIONS OF ANY OTHER LAW ARE VIOLATED

It is humbly submitted to the Honorable Court that the Respondents are liable for
defaming the Petitioner by spreading slanderous statements about him. By
disclosing the information to Dr. Namita directly and to the world at large has
seriously defamed the Petitioner amidst his community. Furthermore, the acts of
the Respondents also amount to medical negligence.

4. WHETHER THE RESPONDENT ARE LIABLE TO PAY DAMAGES

It is humbly submitted herein that the Respondents in the instant case should be
made liable to pay damages for breach of duty to care, for breach of confidentiality
and right to privacy, in Law of Torts for defamation and in Law of Torts for
negligence respectively.

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ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 32 OF

THE CONSTITUTION OF INDIA IS MAINTAINABLE?

It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble
High Court is maintainable under Article 136 of the Constitution of India. It is
contended that the jurisdiction of Supreme Court under Article 136 can always be
invoked when a question of law of general public importance arises and even question
of fact can also be a subject matter of judicial review under Art.136.

The Supreme Court of India has been given extraordinary jurisdiction under Article 136
of the Constitution of India. Under Article 136, the Supreme Court in its discretion may
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter, passed or made by any court or tribunal in the territory of
India. This is called ‘Special Leave Petition’ (SLP).

In general, an appeal can be instituted before the Supreme Court of India from decisions
of the High Courts (Articles 132 to 134). However, there might be some cases wherein
justice and equity may mandate the interference of the Supreme Court. in such cases,
the Supreme Court has been conferred with extra-ordinary powers under Article 136 of
the Supreme Court of India. The residuary provision under Article 136 vests in the
Supreme Court the jurisdiction to entertain appeals by grant of special leave against any
judgment or order passed by any Court or tribunals in the country. Under Special Leave
Petition, the Apex Court has discretionary powers to ensure that there is no miscarriage
of justice.

1.1 THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC

IMPORTANCE AND HENCE, ENTITLED TO BE MAINTAINABLE
The jurisdiction conferred under article 136 on the sc are corrective one and not a
restrictive one 1. A duty is enjoined upon the SC to exercise its power by setting right
the

1. Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
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illegality in the judgments is well-settled that illegality must not be allowed to be

perpetrated and failure by the SC to interfere with the same would amount to allowing
the illegality to be perpetuated2.

It has been held by this Hon’ble Court that when a question of law of general public
importance arises, or a decision shocks the conscience of the court, its jurisdiction can
always be invoked. Article 136 is the residuary power of SC to do justice where the
court is satisfied that there is injustice 3 .

The principle is that this court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities 4 . In any case, special leave would be
granted from a second appellant decision only where the judgment raises issue of law of
general public importance5

Where findings are entered without considering relevant materials and without following
proper legal procedure, the interference of the Supreme Court is called for6. The
expression "substantial question of law" is not defined in any legislation. Nevertheless, it
has acquired a definite connotation through various judicial pronouncements. A
Constitution Bench of the Apex Court, while explaining the import of the said expression,
observed that:

“The proper test for determining whether a question of law raised in the case is sub
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views7

2. Pawan Kumar v. State of Haryana, (2003)11 SCC 241.

3. C.C.E v Standard Motor Products, (1989) AIR 1298.
4. Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.
5. Balakrishna v. Rmaswami, (1965) AIR 195.
6. Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
7. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314
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1.2. THE DECISION OF LOWER COURTS CAUSES INJUSTICE. 

The Petitioner challenges the decision of the lower court by the privilege given under
Article 136 of the Constitution of Republic of Indiva. The Supreme Court can grant
special leave to any aggrieved by the decision of any lower court.

SLP can be filed against any judgement of High Court within 90 days from the date of
the judgement. However, there is flexibility at the discretion of the SC. Or it can be filed
within 60 days against the order of the HC refusing to grant the certificate of fitness for
appeal to SC.This is a special power of Supreme Court to grant leave to appeal against
any judgment passed by the High Court if it involves a substantial constitutional
question of law. Under Article 136 of the Indian Constitution Supreme Court has
residuary power to grant SLP. It is not the right of the party to appeal against the
Judgment or Decree of High Court.

When the aggrieved party has substantial constitutional question of law when the High
Court refuses to give certificate to appeal in the Supreme Court. In case of Tirupati Balaji
Developers Pvt. ltd. vs. State of Bihar AIR 2004 SC 2351 The Court observed the the
SLP is an extraordinary Jurisdiction8 vested by Constitution in the Supreme Court with
implicit trust and faith, and extraordinary care and caution has to be observed in exercise
of this jurisdiction.

In the instant matter, the right to privacy, which is an integral part of the right to life of
people, is violated by the state and their personal sensitive information has leaked, which
is a matter of general public importance and therefore, calls for intervention By the
supreme court. It is humbly submitted by the petitioner before this Hon’ble Court that, the
matter involves substantial question of law as it concerns the violation of fundamental
right of privacy of the petitioner and gross injustice has already been meted out by the
dismissal of High court.It is submitted that the Special Leave Petition should be granted
in when there are special circumstances causing gross injustice to the party. The counsel
relies on the ratio of Paritam Singh v. Punjab9

8. Tirupati Balaji Developers Pvt. ltd. vs. State of Bihar AIR 2004 SC 2351
9. Paritam singh vs punjab , AIR 1950 SC 169
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2. WHETHER DUTY TO CARE AND RIGHT TO PRIVACY HAS BEEN

INFRINGED.
The petitioner contends that action of Dr. Shekhar working for Uttaranchal State Medical
and Health Center has violated the right to privacy of the petitioner, hence violative of Art.
21
2.1 Duty to care violated-
2.1.1. Duty to care as applicable to people in medical profession implies the duty of every
person holding a medical degree and practicing medicine to help a person in need with
whatever medical assistance within best of his abilities 10. The medical profession is
considered a noble profession because it helps in preserving life. We believe life is God
given. Thus, a doctor figures in the scheme of God as he stands to carry out His command.
A patient generally approaches a doctor/hospital based on his/its reputation. Expectations of
a patient are two-fold: doctors and hospitals are expected to provide medical treatment with
all the knowledge and skill at their command and secondly they will not do anything to
harm the patient in any manner either because of their negligence, carelessness, or reckless
attitude of their staff.
2.1.2. Medical negligence is the failure of a medical practitioner to provide proper care and
attention and exercise those skills which a prudent, qualified person would do under similar
circumstances11. It is a commission or omission of an act by a medical professional which
deviates from the accepted standards of practice of the medical community, leading to an
injury to the patient. It may be defined as a lack of reasonable care and skill on the part of a
medical professional with respect to the patient, be it his history taking, clinical
examination, investigation, diagnosis, and treatment that has resulted in injury, death, or an
unfavorable outcome to exercise due care and diligence are generally deemed to constitute
medical negligence12
The law allows a patient to have control over his or her own body. To that end, a patient
must give informed consent to a doctor before the doctor can perform a medical procedure.
The patient needs enough information to make an educated and intelligent decision
regarding medical care. When at all possible, a doctor should inform you:
o What illness or condition you have?
o What treatments are available

10. Indian Medical Council Act, 1956

11. Y.V. RAO’s Law Relating to Medical Negligence
12. Gupta, Kiran, “The standard of care and proof in medical profession, A shift from Bolam to Bolitho”,
XIV-XV National Capital Law Journal 1(2011-2012).
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o The risks involved with those treatments

o The likelihood of success for those treatments
o The risks of failing to undergo the treatments or procedures
o The risks of alternative treatments or procedures

In the present case, Dr. Shekhar being the head of pathology department on coming to know
about the petitioner’s health condition had certain duties as enumerated above. The very
basic duty he had was to at least disclose the medical condition to the Petitioner considering
the grave nature of HIV. Although the Petitioner was not himself admitted in the
Uttaranchal State Medical and Health Center, he still falls under the definition of ‘patient’
given by Farlex dictionary13 which states as follows-
“Patient is one who is suffering from any disease or behavioral disorder”
The above definition is especially applicable considering the fact the Dr. Siddhartha had
donated his blood for blood transfusion to be carried out for his sister, Ms. Suvarna. On
collecting the blood and testing it to be fit for blood transfusion, the pathology laboratory
came to terms with the fact that blood of the petitioner was infected with Hepatitis B, HIV
and other contagious diseases. On receiving this information, it was the duty of the pathology
laboratory headed by Dr. Shekhar to disclose the same to the petitioner in his official capacity
and more so in his personal capacity. Since, both the doctors were colleagues working in the
same hospital, namely Uttaranchal State Medical and Health Center, they were already
well acquainted with one another. Hence, Dr. Shekhar by keeping the petitioner’s health
condition under veil is not only at fault as doctor but also as coworker.

2.1.3 The human immunodeficiency virus (HIV) is a lentivirus (a subgroup of retrovirus)

that causes HIV infection and over time acquired immunodeficiency syndrome
(AIDS)14-15. AIDS is a condition in humans in which progressive failure of the immune
system allowslife-threatening opportunistic infections and cancers to thrive. Without
treatment, average survival time after infection with HIV is estimated to be 9 to 11 years,
depending on the HIV subtype.

13. Farlex Partner Medical Dictionary. (2012)

14. Weiss RA (May 1993). "How does HIV cause AIDS?". Science. 260 (5112): 1273 9. Bibcode:1993Sci
260.1273W. doi:10.1126/science.8493571. PMID 8493571
15. Douek DC, Roederer M, Koup RA (2009). "Emerging Concepts in the Immunopathogenesis of AIDS". Annual
Review of Medicine. 60: 471–84. doi:10.1146/annurev.med.60.041807.123549. PMC 2716400. PMID 18947296

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By non-disclosure of the fact, Dr. Shekhar has played with the life of the Petitioner. The
Petitioner has only found out about his sickness after two years of its discovery. Within
these two years, had Dr. Siddhartha known about his sickness, he would have received
proper medical care and treatment and saved himself from the mental and physical agony
that he is being subjected to now. When HIV infection is not treated with antiretroviral
drugs, the course of disease generally moves through several phases. In primary
infection (also called acute infection), HIV establishes itself throughout the body. Within a
few weeks or months, the immune system develops antibodies against the virus—a process
known as seroconversion. The infection then enters a chronic phase. During
this phase, a person may have no symptoms at all, only mild symptoms or severe
symptoms. If left untreated, HIV infection eventually progresses until the immune system is
too weak to defend against life-threatening infections and cancers. This stage is called
AIDS16. This nondisclosure has not only posed a serious threat to the life of the Petitioner,
but also those in physical contact with him. The spreading of this infection can only be
stopped by anti-HIV drugs which can halt the progress of disease and allow the immune
system to rebuild itself.

2.1.4 This non-disclosure has already led to loss of two precious years to the petitioner and
hence loss of right to live a healthy life guaranteed under Article 21 of the Constitution. The
widely acceptable definition of health is that given by the WHO in the preamble of its
constitution, according to World Health Organization, “Health is a state of complete
physical, mental and social wellbeing and not merely the absence of disease 17.” In recent
years, this statement has been amplified to include the ability to lead a ‘socially and
economically productive life’. Through this definition, WHO has helped to move health
thinking beyond a limited, biomedical and pathology-based perspective to the more positive
domain of “wellbeing”. Also, by explicitly including the mental and social dimensions of
wellbeing, WHO has radically expanded the scope of health and by extension, the role and
responsibility of health professionals and their relationship to the larger society18. Right to
health is not

16. Catie, Canada’s source for HIV and Hepatitis C information, A Practical Guide to HIV Drug Treatment for
People Living with HIV
17. Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official
Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948
18. Kumar Avanish, “Human Right to Health”, satyam law international 2007 at 21
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included directly in as a fundamental right in the Constitution. The Constitution maker

imposed this duty on state to ensure social and economic justice. Part four of Indian
constitution which is Directive Principles of State Policy imposed duty on States.
Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public health.

2.1.5 The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavor to bring about prohibition of the consumption except for
medicinal purpose of intoxicating drinks and of drugs which are injurious to health. If
we only see those provisions, then we find that some provisions of them has directly or
indirectly related with public health. The Constitution of India not provides for the right to
health as a fundamental right. The Constitution directs the state to take measures to improve
the condition of health care of the people. Thus, the preamble to the Constitution of India,
inter alia, seeks to secure for all its citizens, justice-social and economic. It provides a
framework for the achievement of the objectives laid down in the preamble. The preamble
has been amplified and elaborated in the Directive Principles of State policy.

The Supreme Court, in Paschim Banga Khet Mazdoor Samity & ors v. State of West Bengal
& ors19, while widening the scope of Art 21 and the government’s responsibility to provide
medical aid to every person in the country, held that in a welfare state, the primary duty of
the government is to secure the welfare of the people. Providing adequate medical facilities
for the people is an obligation undertaken by the government in a welfare state.

The government discharges this obligation by providing medical care to the persons
seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard
the right to life of every person. Preservation of human life is thus of paramount
importance. The government hospitals run by the state are duty bound to extend medical
assistance for preserving human life. Failure on the part of a government hospital to provide
timely medical treatment to a person in need of such treatment, results in violation of his
right to life guaranteed under Article 21.

19. Paschim Banga Khet Mazdoor Samity & ors v. State of West Bengal & ors (1996) 4 SCC 37

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The Supreme Court in Paramanand Katara v. Union of India20 case gave a landmark
judgment that it has been held that the professional obligation of all doctors, whether
government or private, to extend medical aid to the injured immediately to preserve life
without waiting legal formalities to be complied with by the police under Cr.P.C. Article 21
of the Constitution casts the obligation on the State to preserve life.

No law or State action can intervene to delay the discharge of this paramount obligation of
the members of the medical profession. The obligation being total, laws of procedure
whether in statutes or otherwise which would interfere with the discharge of this obligation
cannot be sustained and must, therefore give way. This is a very significant ruling of the
Court. It is submitted that if this decision of the Court is followed, in its true spirit it would
help in saving the lives of many citizens who die in accidents because no immediate
medical aid is given by the doctors on the ground that they are not authorized to treat
Medico-legal cases. Let us hope that all doctors (Government or private) of this country
should follow this ruling of the court earnestly.

Further in, State of Punjab and Others vs. Mohinder Singh Chawala 21 “it has been held that
right to health is integral to right to life. Government has a constitutional obligation to
provide health facilities.” Similarly, the court has upheld the state’s obligation to maintain
health services22. Apart from recognizing the fundamental right to health as an integral part
of the Right to Life, there is sufficient case law both from the Supreme and High Courts that
lays down the obligation of the State to provide medical health services.

In light of the above judgments, it can be easily deduced that the Government run Hospitals
and Health care centers are under a legal obligation to not only disclose the medical
condition but also provide adequate and prompt medical treatment especially during heinous
illnesses like HIV. Since the Petitioner is not in receipt of either of the above, his
Fundamental Rights as a citizen of this country has been violated and deserves cognizance
from this Honorable court.

20. Paramanand Katara v. Union of India 1989 AIR 2039, 1989 SCR (3) 997
21. State of Punjab and Others vs. Mohinder Singh Chawala. AIR (1997) 2 SC 83.
22. State of Punjab v Ram Lubhaya Bagga. (1998) 4 SCC 117.

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2.2 Right to Privacy violated-

As per Black’s Law Dictionary23, privacy means “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.” Some legal
experts tend to define privacy as a human right enjoyed by every human being by virtue of
his or her existence. It depends on no instrument or charter. Privacy can also extend to other
aspects, including bodily integrity, personal autonomy, informational self-determination,
protection from state surveillance, dignity, confidentiality, compelled speech and freedom to
dissent or move or think. In short, the right to privacy has to be determined on a case-by-
case basis24. Right to privacy has been culled out of the provisions of Article 21 arid other
provisions of the Constitution relating to Fundamental Rights read with Directive Principles
of State Policy. It was in this context that it was held by the Supreme Court in Kharuk Singh
v. State of Uttar Pradesh25, that police surveillance of a person by domiciliary visits would
be violative of.

Article 21 of the Constitution, this decision was considered by Mathew J. in his classic
judgment in Gobind v. State of Madhya Pradesh & Anr26., in which the origin of "right to
privacy" was traced and a number of American decisions, including Munn v. Illinois27, Wolf
v. Colorado28, and various Articles were considered arid it was laid down ultimately, as
under:

"Depending on the character and antecedents of the person subjected to surveillance as also
the objects and the limitation under which surveillance is made, it cannot be said
surveillance by domiciliary visits would always be unreasonable restriction upon the right
of privacy.Assuming that the fundamental rights explicitly guaranteed to a citizen have
penumbral zones and that the right to privacy is itself a fundamental right that fundamental
right must be subject to restriction on the basis of compelling public interest." Kharak Singh
v. State of Punjab and Gobind v, State of Madhya Pradesh (supra) came to be considered
again by the Supreme Court in Malak Singh & Ors v. State of Punjab & Ors 29. and the view
taken earlier on the right of privacy was reiterated.

23. Black's Law Dictionary Free 2nd Ed. and The Law Dictionary
24. The Hindu
25. Kharuk Singh v. Stale of Uttar Pradesh, AIR ( 1963) SC 1295
26. Gobind v. State of Madhya Pradesh & Anr., [1975] 2 SGC 148,
27. Munn v. Illinois, (1877) 94 US 113
28. Wolf v. Colorado, (1949) 338 US 25
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29. Malak Singh & Ors v. State of Punjab & Ors., [1981] 1 SCC 420

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Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union Of India & Ors. (2017), also known as
the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, which
holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and
21 of the Constitution of India.

A nine-judge bench of J. S. Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F.

Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul, and S. A. Nazeer unanimously held
that "the right to privacy is protected as an intrinsic part of the right to life and personal
liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the
Constitution".It explicitly overrules previous judgements of the Supreme Court in Kharak
Singh vs. State of UP and M. P. Sharma vs. Union of India, which held that there is no
fundamental right to privacy under the Indian Constitution.

The sudden disclosure of this sensitive information directly to Dr. Namita, the Petitioner’s
fiancée, and indirectly to the community at large has left the petitioner severely insulted
without any fault on his part. Had the petitioner the knowledge about his illness in advance,
he would have never fixed his marriage in the first place considering the communicable
nature of HIV. For two years there was silence on part of Dr. Shekhar and his department
only to result into a sudden a revelation not to the Petitioner but to a complete third party
which brought great disrepute to him.

The medical profession, which is considered to be the noblest profession, where doctors
strive to develop repute and honorable image, this sudden revelation, has severely defamed
the Petitioner. As a citizen of this country, the petitioner deserves complete discretion as to
whether or not reveal his health condition to the general public. Should any person disclose
the same without prior approval equals to violation of Right of Privacy of the petitioner.

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2.3 Right to Confidentiality violated-

2.3.1. Doctor-patient confidentiality is based on the notion that a person shouldn't be

worried about seeking medical treatment for fear that his or her condition will be disclosed
to others. The objective of this confidential relationship is to make patients feel comfortable
enough providing any and all relevant information. This helps the doctor to make a correct
diagnosis, and ultimately to provide the patient with the best possible medical care. As a
result, once a doctor takes a patient on, there's an expectation that the physician will hold
that special knowledge in confidence and use it exclusively for the benefit of the patient. He
or she cannot divulge any medical information about the patient to third persons without the
patient's consent.

2.3.2. Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an
ethical code attributed to the ancient Greek physician Hippocrates, adopted as a guide to
conduct by the medical profession throughout the ages and still used in the graduation
ceremonies of many medical schools and colleges. Hippocrates lived and practiced as a
Physician between third and first Century.

B.C. He has been referred to by Plato as a famous Ascleplad who had philosophical
approach to medicine. His manuscripts, t h e Hippocratic Collection (Corpus
Hippocracticum), contained the Hippocractie Oath which is reproduced below:
"I swear by Apollo the Healer, by Asclepius, by Hygieia, by Panacea, and by all the
gods and goddesses, making them my witnesses, that I will carry out, according to my
ability and judgment, this oath and this indenture. To hold my teacher in this art equal to my
own parents; to make him partner in my livelihood; when he is in need of money to share
mine with him; to consider his family as my own brothers, and to teach them this art, if they
want to learn it, without fee or indenture; to impart precept, oral instruction, and all other
instruction to my own sons, the sons of my teacher, and to indentured pupils who have
taken the physician’s oath, but to nobody else. I will use treatment to help the sick
according to my ability and judgment, but never with a view to injury and wrong-doing.
Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a
course. Similarly,

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I will not give to a woman a pessary to cause abortion. But I will keep pure and holy both
my life and my art. I will not use the knife, not even, verily, on sufferers from stone, but I
will give place to such as are craftsmen therein.
Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all
intentional wrong-doing and harm, especially from abusing the bodies of man or woman,
bond or free. And whatsoever I shall see or hear in the course of my profession, as well as
outside my profession in my intercourse with men, if it be what should not be published
abroad, I will never divulge, holding such things to be holy secrets.

Now if I carry out this oath, and break it not, may I gain for ever reputation among all men
for my life and for my art; but if I transgress it and forswear myself, may the opposite befall
me30."

The Hippocractic Oath consists of two parts. The first, or covenant; is the solemn
agreement concerning the relationship of apprentice to" teacher and the obligations enjoined
on the pupil. The second part constitutes the ethical code.
It is on the basis of the above that International Code of Medical Ethics 31 has laid down as
under:
"A physician shall preserve absolute confidentiality on all he knows about his patient even
after his patient has died."
Here, in this country, there is the Indian Medical Council Act32, which controls the medical
education and regulates the professional conduct. Section 20A which was inserted by the
Indian Medical Council (Amendment) Act33 provides as under:
Sec. 20A. Professional conduct-
(1) The Council may prescribe standards of professional conduct and etiquette and a
code of ethics for medical practitioners.
(2) Regulations made by the Council under sub-section (1) may specify which violations
thereof shall constitute infamous conduct in any professional respect professional
misconduct, and such provision shall have effect notwithstanding anything contained in
any law for the time being in force.

30. Hippocrates of Cos (1923). "The Oath". Loeb Classical Library. 147: 298–
299.doi:10.4159/DLCL.hippocrates_cos-oath.1923. Retrieved 6 October 2015
31. International Code of Medical Ethics (1949)
32. Indian Medical Council Act, 1956
33. Indian Medical Council (Amendment) Act 1964
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At the same time, that is, by the same Amending Act, clause (m) was also introduced in
Section 33 and this clause provides as under:
Power to make regulations -The Council may, with the previous sanction of the Central
Government, make regulations generally to carry out the purposes of this Act, and, without
prejudice to the generality of this power, such regulations may provide for(m) The standards
of professional conduct and etiquette and code of ethics to be observed by medical
practitioners,"

It is under these provisions that the Code of Medical Ethics has been made by the Indian
Medical Council which, inter alia, provides as under:
"Do not disclose the secrets of a patient that have been learnt in the exercise of your
profession. Those may be disclosed only in a Court of Law under orders of the presiding
judge," Although the Petitioner’s case was never really taken up by the Uttaranchal State
Medical and Health Centre, his health condition was only known to them and no one else
not even to the Petitioner himself. This created a Doctor-Patient relationship between the
Petitioner and Uttaranchal State Medical and Health Centre. Owing to this relationship, an
unspoken contract of trust and safekeeping was created between the two. Since Dr. Shekhar
and the pathology department had not obtained any permission of the Court of Law or of
the Petitioner, the doctor- patient privilege has been broken and has gone for a complete
toss. The HIV status of the Petitioner was a privileged matter and disclosure of the same to
a third party and not the Petitioner himself is a gross violation of his rights. Dr. Shekhar
acting in bad faith only to lower the repute of the Petitioner has revealed such sensitive
information indirectly to the public at large.

2.3.3. Mr. X vs. Hospital Z34 not applicable-

In the above case, the question before the Supreme Court was whether the disclosure by the
doctor that his patient, who was to get married had tested HIV positive, would be violative
of the patient’s right to privacy. The Supreme Court ruled that the right to privacy was not
absolute and might be lawfully restricted for the prevention of crime, disorder or protection
of health or morals or protection of rights and freedom of others. The court explained that
the right to life of a lady with whom the patient was to marry would positively include the
right

34. Mr. X v. Hospital Z Appeal (civil) 4641 of 1998

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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. Since the right to life included right to

healthy life so as to enjoy all the facilities of the human body in the prime condition it was
held that the doctors had not violated the right to privacy.

However, the same though similar to the present case is not applicable in the instant
context. In this case, the Petitioner has absolutely no knowledge of his physical health. Had
he known of his condition, being the law abiding and considerate person he is, he never
would have gone ahead with the marriage. The petitioner in the instant case had no
intentions to deceive Dr. Namita or her family. Where he himself was under the cloud about
his situation how can one expect him to share the same with his fiancée? Being a doctor of a
stature himself he obviously is aware of the repercussions this disease has and its dreadful
nature. No man of ordinary prudence and care and caution would put the life of another
human being in danger in such form and by such actions.

3. WHETHER THERE ARE VIOLATIONS OF ANY OTHER PROVISIONS OF

LAW.
3.1 Defamation-
3.1.1 According to Dr. Winfield, “defamation is the publication of a statement which tends
to lower a person in the estimation of right thinking members of the society generally, or,
which tends to makes them shun or avoid that person 35.”Defamation may be defined as a
communication to some person, other than the person defamed, of matter which tends to
lower the plaintiff in the estimation of right-thinking persons or to deter them from
associating or dealing with him. Defamation is wrong done by a person to another’s
reputation by words, written or spoken, sign or other visual representation. It is not
necessary that the defamatory statement must be made in words, written or spoken. One
may be guilty of defamation even though one has neither spoken nor written a word.

According acclaimed commentator Dr RK Bangia, defamation is injury to the reputation of

a person. However, the veteran scholars Winfield, Salmond, and among others also seem
championing the same notion. Notwithstanding the different authors put effort to herald
new

35. Winfield and Dolwiez, 9th Edn, p. 245

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dimensions in defamation, they sang a similar tune that defamation harms one’s reputation
at large. Some of scholars like Salmond advocates that the defamatory statements not only
injure the reputation of the plaintiff but also pose a serious concern over lowering his
reputation among right thinking members of his society.

So, an attack on reputation harms the aggrieved at large 36. Defamation, also calumny,
vilification, and traducement, is the communication of a false statement that harms the
reputation of an of a false statement that harms the reputation of an individual, business,
product, group, government, religion, or nation. Most jurisdictions allow legal action to
deter various kinds of defamation and retaliate against groundless criticism. It is usually
regarded as irrational unprovoked criticism which has little or no factual basis and can be
compared to hate speech, which can also be taken to encompass discrimination against a
particular organization, individual, nation, corporation or other political, social, cultural or
commercial entity which has often but not always been entrenched in the practitioner by old
prejudices and xenophobia37.

3.1.2 Under English law, there are two types of defamation:

A) Libel
B) Slander
In libel, the defamatory statement is made in some permanent and visible form, such as,
writing, printing, pictures or effigies38. The veteran scholar Dr R.K Bangia observes that
slander is the publication of defamatory statements in a transient form.
Furthermore, it may be spoken by words or gestures. In slander, the defamatory statement is
made against a person by spoken words or some temporary form, whether visible or
audible, such as gestures, hissing, or such other things. The medium by which slanderous
statement is made is generally permanent. Thus, anything temporary and merely audible is a
slander. It is, therefore, generally said hat libel is for the eyes, whereas slander is for the
ears. Slander is not actionable per se. in action for slander the plaintiff has to prove some
special damage. A mere injury caused to a man’s reputation does not entitle him to initiate
an action for defamation. The defamatory statement must have caused a real damage to the
plaintiff which may either be pecuniary, or which may be determined in money value.

36. Defamation: A Civil and Criminal Remedy (Law of Torts) Jivesh Jha
37. J.N. Pandey
38. Bangia 2013
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However, in following circumstances, slander is actionable per se i.e. without proof of any
special damage-
o Imputation of crime
o Imputation regarding business or office in competency of plaintiff
o Unchastity of a woman
o Imputation of some disease-

To impute that a person suffers from an existing contagious venereal disease is to commit
slander actionable per se. Whether this exception applies to other diseases is doubtful. It is
generally accepted that suffering from the disease induces neither moral condemnation nor
loathing it is not now actionable per se. even in case of venereal disease it is not actionable
per se now to say that the plaintiff has suffered from it in the past39.

3.1.3. Under English law, only libel has been recognized as a criminal offense, slander is
no offense there. However, the draftsmen of Indian law have forwarded a contrary view.
The Indian Criminal law does not make any distinction between libel and slander. Both
libel and slander are criminal offenses under section 499 of Indian Penal Code (IPC)40.

Section 499 of Indian Penal Code (IPC) reads as follows- Whoever, by words either spoken
or intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in the cases
hereinafter expected, to defame that person.

Explanation 1- It may amount to defamation to impute anything to a deceased person, if the

imputation would harm the reputation of that person if living and is intended to be hurtful to
the feelings of his family or other near relatives. Explanation 2- It may amount to defamation
to make an imputation concerning a company or an association or collection of persons as
such.
Explanation 3- An imputation in the form of an alternative or expressed ironically, may
amount to defamation.

39. Taylor v. Hall, (1742) 2 Stra 1189.

40. Indian Penal Code 1860
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Explanation 4- No imputation is said to harm a person’s reputation, unless that imputation

directly or indirectly, in the estimation of others, lowers the moral or intellectual character
of that person, or lowers the character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered as disgraceful.

The present case is a clear-cut case of slander under the Law of Torts. Mr. Shekhar by having
spilled the beans about the Petitioner’s health condition has defamed him in eyes of the
society. A medical condition which was never known to the Petitioner and which existed only
in the knowledge of Dr. Shekhar and his team was suddenly made known the whole wide
world. There being no physical proof or evidence of the HIV status of the Petitioner, a
genuine doubt is raised about the truth of the same. The Petitioner being a practicing medical
professional for almost 5 years now is most definitely aware of the symptoms that the body
shows when infected with HIV. The alleged health condition of the Petitioner was never
reduced to writing leaving it uncertain as to whether this condition has existed in the first
place. Had there been any such indications, he would have come across them. Since none
have been complained of within the last 2 years, leaves a lot to speculation.

3.2 Negligence-

According to Alderson B, “negligence is the omission to do something which a reasonable

man guided upon these considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would do 49.” As
per Winfield, “negligence as a tort is the breach of a legal duty to take care which results in
damages.”

The law requires a fair and reasonable standard of care and competence by the doctor towards
his profession. In the instant case, Dr. Shekhar was under a professional obligation to not
only disclose the HIV status to the Petitioner but also give him a proper treatment in order to
cure his infection. Since none was actually done by him, he is guilty of medical negligence.

41. Blyth v. Birmingham Water Works Co., (1856) 11 Ex 781

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4. WHETHER THE RESPONDENTS ARE LIABLE TO PAY ANY

DAMAGES.

The respondents in the instant case are Uttaranchal State Medical and Health Center.
In accordance with the arguments advanced above, the Petitioner sufficiently
concludes that the respondents here are liable to pay damages under the following
grounds-

4.1. Damages for breach of ‘duty of care’ as applicable to the people in

medical profession and duty to maintain confidentiality was violated by Dr.
Shekhar and he is liable along with hospital authorities to pay damages to the
Petitioner.

4.2. Damages for breach of confidentiality with regards to the information,

which was to be kept confidential, was disclosed and the said disclosure by Dr.
Shekhar amounts to violation of right to privacy which resulted in disrepute to
the Petitioner and therefore the hospital authority and Dr. Shekhar are liable to
pay damages.

4.3. The remedy for a civil defamation covered under Law of Torts. The
Petitioner should be given damages in as much amount as the Honorable Court
pleases for the slanderous statements made against his favor.

4.4. Damages for negligence on part of the hospital authorities in disclosing the
medical condition to the Petitioner and giving him proper medical care and
treatment.

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PRAYER

IN THE LIGHT OF THE ARGUEMENTS ADVANCED, ISSUES RAISED AND

AUTHORITIES CITED, MAY THIS HONOROUBLE COURT BE PLEASED TO
HOLD THAT:

1. The Special Leave petition filed is maintainable.

2. The Duty to Care and Right to Privacy has been infringed.

3. The provisions of other laws are also violated, and damages should be awarded
for the same.

AND/OR

PASS ANY OTHER ORDER WHICH IT THINKS FIT IN INTEREST OF JUSTICE,

EQUITY AND GOOD CONSCIENCE

COUNSELS FOR THE PETITIONERS

Place:

Date:

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