Facts of the case:
In the State of Goa after passing of The Goa, Daman and Diu Public Health Act,
1985, the government got power under section 53 of the act to isolate a person
who is found positive of the Acquired Immuno Deficiency Syndrome (AIDS) for a
certain period if fulfilled the conditions. The act included such sections in
which it was necessary to isolate a person who is found positive of the virus.
The act made a rule that nobody can refuse collection of blood for the purpose
of investigation of AIDS or other communicable infectious diseases, if there is
suspect of such disease by health officer. In the year 1989 the act was amended
and the rule of mandatory isolation if tested positive was done away and made
discretionary.
The petition was filled by the mother of Dominic D'Souza, who was without being
told why, was hustled around the police station, a hospital and badgered with
questions about his sexuality and sex life until he was jolted into realising,
he was a carrier of the HIV virus. From being handcuffed and left to rot in an
abandoned tuberculosis sanatorium to challenging the Goa Public Health Amendment
Act, which called for mandatory isolation of HIV-positive persons, He was
isolated for 64 days before the amendment but was later released.
Dominic's legal, medical and emotional journey irrevocably changed not only his
own life but became a rallying cry in the struggle for equal rights to treatment
and care for those with HIV in the country. The complaint was filled as per the
contention of petitioner that the section was unreasonable and violated
fundamental articles of the constitution, Article 14, Article 19(1) d and
Article 21.
Facts in issue:
In the case of
Lucy R. D'Souza v. State of Goa, AIR 1990 Bom 355, the
petitioner, Lucy R. D'Souza objected that the isolation of her son Dominic
D'Souza for containment of AIDS under The Public Health Act, 1985 was
unreasonable and violative of Article 14 (Right to Equality), Article 19(1)(d)
(Right to move freely throughout the territory of India), and Article 21 (Right
to life) promised by the Indian Constitution. She also contended that the
isolation was a violation of his Right to Liberty and that it shouldn't be made
Mandatory.
Arguments:
It was argued that Section 53 of The Goa Public Health Act, 1987 (Amended) which
specified restrictions and provisions regarding AIDS, violated Article 14, 19,
21, and 226 of the Indian Constitution, as well as the government-endorsed World
Health Organization guidelines. Sub-sections (vi) to (xv) were added to Section
53(i) in 1987 amendment.
Sub section (vi) makes it mandatory not to refuse collection of blood for
investigation of AIDS or any other communicable infectious disease if the Health
Officer has reasonable grounds to suspect that the person is suffering from any
of those diseases. Sub-section (vii) made it mandatory to isolate persons found
to be positive for AIDS by serological tests. Subsections (viii) to (xv)
enumerates the care and/or precaution to be taken in the case of patient
suffering from AIDS or other infectious disease. These sections were considered
unreasonable and unjust.
Judgement:
- The State Government has the authority under Section 53(1)(vii) of the
Goa, Daman and Diu Public Health Act, 1985 (the Act) to isolate persons who
have tested positive for Acquired Immuno Deficiency Syndrome (AIDS) for such
period and under such conditions as may be deemed necessary, and in such
institutions or wards as may be prescribed. The question presented in all
three petitions is whether the abovementioned rule is irrational and hence
infringes on rights guaranteed by Articles 14, 19(1)(d) and 21 of the Indian
Constitution.
- The Act's goal is to improve public health. The word 'infectious
disease' is defined in Section 2(15) to mean an infectious disease as
defined in Section 47, as well as notified diseases as defined in Section
57. Chapter VII is about disease prevention, detection, and treatment.
Section 47 establishes a list of infectious diseases and authorises the
government to declare certain disorders infectious by notification. Section
49 deals with the establishment and upkeep of isolation hospitals and wards.
Section 51 requires every medical practitioner to report certain disorders
to the appropriate authorities. Section 53 allows for the transfer of an
infected person to a hospital in less than four circumstances mentioned in
sub-sections (i) to (iv).
- The Act was enacted while Goa, along with Daman and Diu, was a Union
Territory. The Goa Public Health (Amendment) Act, 1987, was published in the
Official Gazette on December 17, 1987, shortly after the state of Goa was
formed. Several diseases, including AIDS, were added to Section 47's
statutory list of contagious disorders. Section 53 was expanded to include
sub-sections (vi) to (xv) (i). Subsection (vi) makes it illegal to refuse
blood collection for AIDS or any other communicable infectious disease
investigation if the Health Officer has reasonable grounds to believe the
person is suffering from one of those diseases.
Subsection (vii) made it mandatory to isolate those who tested positive for
AIDS through serology. Sections (viii) to (xv) list the types of care and/or
precautions to take in the case of a patient with AIDS or another infectious
disease. The Goa Public Health (Amendment) Act, 1989, was revised further by
the Goa Public Health (Amendment) Act, 1989, which was published in the
Official Gazette on June 15, 1989. The mandatory requirement of isolation of
an AIDS patient in Section 53 sub-section (vii) was changed to a
discretionary requirement, and the Health Officer's power in the case was
revoked and transferred to the State Government. Clause (xv) was also
amended to include a proviso.
- The current version of Section 53 reads as follows: "53(1): If the
Health Officer believes that any person is infected with an infectious
disease, and that such person:
- Do not have enough lodging or lodgings, or
- Is done without medical supervision in order to prevent the disease from spreading, or
- Is accommodation in a home shared by several families; or
- Is in a location where his presence poses a threat to the people in the area; and
- Should be transported to a hospital or other location where patients with such disease are treated, the Health Officer may remove or induce such person to be removed to such a hospital or location.
- No person, including a foreigner, shall refuse blood collection for the investigation of acquired immunodeficiency syndrome or other communicable/infectious diseases if the Health Officer has reasonable grounds to suspect that the person is suffering from acquired immunodeficiency syndrome or other infectious disease as defined by the Act;
- If a person tests positive for acquired immunodeficiency syndrome by serological test, the government may isolate that person for as long as it deems necessary, under whatever conditions, and in whichever institution or ward it deems appropriate.
- All such patients admitted to prescribed wards/hospitals will be given supplies, equipment, and other items that will not be used for any other purpose;
- Parenteral medication for patients with acquired immunodeficiency syndrome must be administered using disposable sets/syringes;
- All linen, mattresses, and other items used for deceased patients with acquired immunodeficiency syndrome must be burned as soon as possible;
- All personnel involved in the care of a patient with acquired immunodeficiency syndrome must be adequately protected with long rubber gloves, sanitized linen, and a mask;
- Persons handling the deceased bodies of individuals with acquired immunodeficiency syndrome must be cautioned not to come into contact with any secretions, such as saliva; and so on.
- The dead body of a patient who has been diagnosed with acquired immunodeficiency syndrome must be placed in a polythene bag and fastened with knots at both ends before being cremated, buried, or shipped overseas, as the case may be;
- No transplant surgery of any sort shall be done unless the donor and receptor have been serologically verified to be free of acquired immunodeficiency syndrome;
- All Blood Banks should send blood samples for ELIZA testing to the Surveillance Centre of the Goa Medical College, and only after receiving a negative result, can the blood be used for patients; Provided, however, that in the event of an emergency in which blood transfusion is deemed necessary without waiting for the results of the ELIZA test, the patient's or guardian's or relative's written agreement must be sought prior to such blood transfusion.
- Mr. Anand Grover, the petitioners' learned counsel, has made the following
four arguments in front of us: (a) the provision for isolation is based on
incorrect scientific material and foundation; (b) the provision nullifies the
object sought to be achieved by isolation; (c) the discretion to isolate is
unguided and uncontrolled; and (d) the provision for isolation is procedurally
unjust in the absence of a right of hearing.
- Because the points (a) and (b) are connected, we shall analyse them both at
the same time. Human Immunodeficiency Virus (HIV) damages the immune system of
the human body. HIV is the virus that causes AIDS. Some HIV-positive people may
avoid developing AIDS, but this is a rare occurrence. People with AIDS are
unable to fight off common diseases and frequently die as a result. Despite all
of science's advancements, no one knows what caused HIV. At one point, the HIV
transmission routes were cloaked in mystery. According to current thinking, HIV
is spread primarily through:
- sexual contact with an infected person
- sharing contaminated needles or syringes
- transfusion of infected blood or blood products
- contact with body fluids such as tears, saliva, sperm, urine, feces, breast milk, and so on
- an infected mother during pregnancy or delivery
Despite international efforts, the disease is rapidly spreading and poses a
threat to human life. There is yet to be discovered a safe, effective, and
economical therapy for the disease. AIDS has infected the human race in a large
and quick manner, and there does not appear to be any hope of it rapidly
retreating. It has an economic, social, political, and cultural impact on human
society is increasing .
With such devastating consequences, it's no surprise
that there is widespread fear of the disease, as well as considerable
discrimination in society. The study of the disease's causes and cure is
ongoing, although it is yet incomplete. Various organisations, including the
World Health Organization, issue differing and sometimes even conflicting expert
reports from time to time (WHO). It appears that AIDS is still a topic about
which there is still plenty to be said.
- Not that there hasn't been any progress in the field of prevention
and/or treatment. Experts are almost unanimous in their belief that patient
education and counselling is the most significant and successful weapon in the fight
against AIDS. The essential question is whether patient isolation is
unscientific or counterproductive in any case.
- Isolation, without a doubt, has a number of negative implications. It is
a violation of a person's liberty. It can have a negative impact on a
person's life in a variety of ways, including their finances. It can also
result in social exclusion. Individual rights must, however, be balanced
against the general interest in cases like this. Individual liberty and
public health are not mutually exclusive, but rather go hand in hand.
Even if there is a contradiction between an individual's right and the
public good, the former must give way to the latter. Apart from that,
isolation is not just in the best interests of society. It may also be in
the best interests of an AIDS patient in a particular circumstance, because
he may become despondent and lose all hope of survival, and thus must be
saved against himself.
Experts may have viewed isolation as one of the preventive measures in light
of all of these issues. In this regard, we quote the following remarks from
a Brown University paper titled "Managing AIDS Patients." The Survival Guide
for Health-Care Professionals'. "Whenever AIDS-related illnesses such as
infectious diarrhoea or tuberculosis
are diagnosed or suspected, isolation procedures should be used."
- Isolation can be unproductive since the patient may go underground or
refuse to disclose the illness, and science rather than discrimination is
the ideal approach to deal with the condition, but in actuality, "ideal"
does not necessarily equate to "practical." When there is such a high risk
to the public's health, erring on the side of caution may be acceptable.
It's worth noting that there's some disagreement over whether body fluids
including tears, saliva, sperm, faeces, and breast milk can also be used as virus transmission
pathways. What was thought certain yesterday might not be so today, and what is
deemed certain now might not be so tomorrow.
-
It's important to recognise that issues like this are essentially
policy-related. This policy choice is made by individuals who are responsible
for enhancing public health and have the necessary expertise. We are too
ill-equipped to question the wisdom of the Legislative Assembly. Even if there
is any dispute about its validity, the policymaker must benefit from it. We are
well aware that courts do not lack the authority to review the legality of a
policy decision. However, such power must be used with caution, as the field of
application is limited. The presumption that the Legislature knows and
appreciates the demands of its people, as well as good faith and awareness of
the current conditions, is a well-established legal premise. There is no
substantial evidence — either intrinsic or extrinsic — to refute the
aforementioned presumption or the presumption of a statute's constitutionality.
- The state of Goa appears to be the only one that has created such a
provision. This situation was hoped to bolster the argument that the provision
was exceptional, illogical, and unscientific. The learned Advocate General is
correct in asserting that such yardaticks cannot be used to determine the
validity of an enactment. AIDS is frequently referred to as a foreign invasion.
Goa is a well-known international tourist destination, and even the Government
of India considers it to be a high-risk area for AIDS. There is nothing shocking
or undesirable if the State was forced to take the lead in the subject in the
background. We have been informed that a Bill No. XX of 1989, titled "The
Acquired Immune Deficiency Syndrone (AIDS) Prevention Bill, 1989," was just
introduced in the Rajya Sabha. Section 5 of the Bill allows for the transfer of
a person to a hospital or other facility for special care or treatment if the
authority deems it essential in the individual's best interests and to prevent
the spread of HIV infection. Section 7 mandates that the designated authority
take preventive measures to prevent the spread of HIV infection.
- The magnitude of the situation can be gauged by the numbers of
AIDS-affected people provided in numerous publications before us, which both
sides can rely on. 5 to 10 million people in 1887 In 1991, the population
was estimated to be between 50 and 100 million people. This shows that
current preventative methods have failed to stop the disease from spreading,
and that new areas must be explored. It's worth remembering that one of the
Directive Principles of State Policy identifies public health improvement as
the state's primary responsibility (Article 47).
- Given this context, we find it difficult to accept the argument that
there is no scientific basis for considering isolation as one of the proper
strategies for AIDS prevention or that the purpose attempted to be reached
by isolation is nullified by the contested Section 53(1) provisions (vii).
- At this point, we can mention some of the authorities to which both
parties have drawn our attention. In Bachan Singh v. State of Punjab, the legitimacy of
the death penalty was affirmed by a majority verdict on the grounds that it was
a policy decision on which experts disagreed. According to a minority opinion,
there is no rational nexus between the death sentence and a genuine penological
purpose, and hence the death penalty is arbitrary. Section 303 of the Indian
Penal Code was struck down as arbitrary in Mithu v. State of Punjab, on the
grounds that I the assumption that life convicts are a dangerous breed of
humanity as a class (which is the basis of Section 303 IPC) was unsupported by
scientific evidence, and (ii) it took away the court's discretion in the matter
of punishment. In the case of D. S. Nakara v. Union of India, it was determined
that the classification of pensioners in the amended pension formula based on
their date of retirement was arbitrary. The case of Ajay Canu v. Union of India
concerns the legality of the A. F. Motor Vehicles Rule, which requires a
two-wheeler rider to wear a helmet. The validity was supported on the grounds
that it was a policy concern and that no basic right may be invoked to prevent
any act aimed at achieving a public good. Now that the legislation established
by all of the aforementioned authorities is clearly established, their lengthy
debate is no longer necessary. The major debate has been over how it should be
applied in this case.
- Now, consider this: (c). The law is also clear on this subject, and it
is this. If the legislature has a clear policy that guides delegation and
the delegation is in favour of the High Authority, such delegation cannot be
described as uncontrolled or unguided. The legislative policy of the Act's
Section 53(1)(vii) is very obvious. It is in the public interest to prevent the
spread of AIDS. The highest authority in the state, namely the State Government,
has the authority to decide on isolation. Furthermore, the State Government has
created the following policy for its own guidance:
- If a foreign national is proven to be H.I.V. positive, he should be isolated
in Mapuse's AIDS Centre and deported to his home country;
- If an Indian national is proven HIV positive outside of this state, his
parent state should be notified, and he should be allowed to return to his
state or place of employment;
- A Goan or a local resident of Goa State should not be interned; rather, he
should be allowed to return to his place of work or residence on the condition
that he visits the nearest Primary Health Center at least once a month for
follow-up or to receive treatment, if necessary. a special card should be given
to the AIDS H.I.V. person. He should be given a laminated card with a photo, as
well as a photo of the person for our records; (iv) He risks being isolated if
he fails to report to the Primary Health Centre or the nearest health-care
facility."
- The prospect of abuse of discretionary power cannot be ruled out,
because no power on the planet is immune to abuse. However, the existence of
such a possibility does not invalidate the source of power. That
administrative decision can be overturned if it is misused. In instances
like Ram Krishna Dalmia v. Justice Tendolker and a slew of others, discretionary power isn't
always discriminatory. As a result, we judge this point to be meaningless.
- The last point is all that remains for evaluation (d). There can be no
doubt that, if an administrative decision affects a valuable civil right,
the concept of audi alteram partem must be applied consistently, because fair play requires
it. However, the aforementioned notion cannot be incorporated into any straight
jacket formula. Its scope and application will vary from situation to instance.
If the circumstances and fairness merit it, the concept can even be disregarded.
Exclusion can be both explicit and implicit. De Smith's 'Judicial Review of
Administrative Action' Fourth Edition, page 184 and onwards--Impracticability of
giving a prior notice or opportunity of hearing is one such illustration.
contains an illustrated list of scenarios when such exclusion by implication may
be held .
"In truth, the enforcement powers of public authorities and
administrative officials are exercised without notice in a relatively small
number of cases." The Public Health Acts provide for some unusual circumstances.
As a result, a local government may be required to demolish a temporary
structure after the period for which it was permitted to remain has elapsed.
A
local authority has the authority to inspect and test sewers, drains, and
sanitary facilities that it believes are defective; to repair stopped-up drains;
to order the cleansing or destruction of filthy or verminous articles; and to
transport an inmate of a common lodging house who is suffering from a notifiable
disease giving rise to a serious risk of infection." As a result, the foregoing
observations immediately apply to the situation at hand.
Requiring prior notice
or a hearing can be inconvenient for the target of isolation, and it may not
even be possible. Even in the case of Olga Tellis v. Bombay Municipal
Corporation, certain observations are made, which, in addition to stating that
the right to life includes the right to livelihood, also states that in
appropriate cases, natural justice principles can be completely disregarded or
moulded to fit the needs of the situation. In the absence of a pre-decisional
hearing, there is no legal defect in section 53.
- We, on the other hand, see no problem in interpreting section 53 to
imply a right to a post-decisional hearing, however limited it may be, such
as a right of representation against isolation. When we brought this up with
the learned Advocate General, he agreed that the State Government would have
no issue to conceding a right of consideration of representation if it was
made. In the case of Smt. Maneka Gandhi v. Union of India, such a right was read down by
implication, and the legitimacy of the Passport Act was maintained as a result.
As a result, we believe that the Act does not preclude a post-decisional right
to make representation against an isolation decision, and that the provisions,
despite the lack of a pre decisional right to hearings, are not procedurally
unreasonable.
- For all of these reasons, we reject the four-pronged attack on the Act's
Section 53(1)(viilegality, )'s holding that the provisions are reasonable
and lawful in substance as well as process, and do not violate Article 14,
Article 19(1)(d), or Article 21.
- The constitutionality of section 53(1)(vii) as originally enacted has
been called into question only as a precaution, because if the altered
provisions are found to be ultra vires, the original, more draconian provision may be
reinstated in the absence of such a challenge. The petitioners were isolated
prior to the 1989 amendment and had been freed from the isolation wards for a
lengthy time, according to the evidence presented to us.
- Damages for unjust isolation are sought, but such relief cannot be
provided in writ jurisdiction because it is contingent on the resolution of
multiple factual disputes.
- To summarise, the petitions are dismissed, and the Rules are vacated. Costs
are not in any particular sequence.
- At this point, Mr. Tamba, the petitioners' skilled counsel, seeks orally for
a certificate of the sort alluded to in Article 133(1) of the Constitution under
Article 134-A. We are not inclined to grant the prayer since our determination
is based on law that has already been established by different Supreme Court
decisions. As a result, the oral application is denied.
- Petitions are denied.
Analysis of the case:
In the facts of the given case, Dominic showed threat to general public of the
infectious disease being spread and hence he was the person to face ostracism
whose case became the first one related to HIV to reach the Indian courts.4 The
judgement of the court as mentioned, rules is favour of the government, stating
that no fundamental rights were violated in the given case as Dominic was
isolated during time when the law was in force and the isolation was legal as
per.
The Goa Public Health Act, (Amended)1987. The Court also held that in case of a
dispute between individual liberty and General public good, public good would be
taken into consideration. The Court stated that "there cannot be any fundamental
right against any act aimed at doing some public good."
In the case of Lucy
R. D'Souza v. State of Goa, the prevention of the
spread of HIV amounted to public good. The Court cited Article 47 of the
Constitution, which requires the state to improve public health. It stated that
"erring on the safer side may be justified" when there was a high risk to public
health, which in our opinion, is reasonable.
Even though Dominic faced a lot of problems due to isolation and confinement,
The decision of court was according to the law present at that time which was
deemed to be in favour of public interest as Goa is an international tourist
place so it was considered that the state is at higher risk of spread of the
infection.
Sustainable Development Goal
As per the United States Sustainable Development Goals, SDG 3 aims to protect
everyone's health and well-being,6 including a strong pledge to end AIDS,
tuberculosis, malaria, and other infectious illnesses epidemics by 2030. To
reduce the spread of the illness Dominic was isolated as per the Act to prevent
the general public face a larger harm. In accordance to the sustainable
development goal 3, the state implemented the act and after the later discovery
regarding the disease changed the provisions accordingly. The court's ruling was
also in line with the Goal 3.
BIBLIOGRAPHY
- Mohua Das , Case that changed HIV treatment forever ,The Times of India
(Updated: May 14, 2017, 12:19 IST) http://timesofindia.indiatimes.com/articleshow/58664399.cms?utm_source=contentofinterest&utm_med
ium=text&utm_campaign=cppst
- INDIAN KANOON https://indiankanoon.org/doc/612226/ (last visited
November 18, 2021).
- UNITED NATIONS , https://sdgs.un.org/goals/goal3 (last visited November
19,2021
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