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Unpacking Legal Precedent: Analyzing Lucy R. D'Souza v. State of Goa, AIR 1990 Bom 355

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.

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.

  1. 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.
  2. 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).
  3. 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.
  4. 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:
    1. Do not have enough lodging or lodgings, or
    2. Is done without medical supervision in order to prevent the disease from spreading, or
    3. Is accommodation in a home shared by several families; or
    4. Is in a location where his presence poses a threat to the people in the area; and
    5. 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.
    6. 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;
    7. 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.
    8. 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;
    9. Parenteral medication for patients with acquired immunodeficiency syndrome must be administered using disposable sets/syringes;
    10. All linen, mattresses, and other items used for deceased patients with acquired immunodeficiency syndrome must be burned as soon as possible;
    11. 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;
    12. 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.
    13. 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;
    14. 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;
    15. 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.
  5. 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.
  6. 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:
    1. sexual contact with an infected person
    2. sharing contaminated needles or syringes
    3. transfusion of infected blood or blood products
    4. contact with body fluids such as tears, saliva, sperm, urine, feces, breast milk, and so on
    5. 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.
  7. 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.
  8. 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."
  9. 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.
  10. 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.
  11. 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.
  12. 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).
  13. 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).
  14. 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.
  15. 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:
    1. 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;
    2. 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;
    3. 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."
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. To summarise, the petitions are dismissed, and the Rules are vacated. Costs are not in any particular sequence.
  23. 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.
  24. 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.

  1. Mohua Das , Case that changed HIV treatment forever ,The Times of India (Updated: May 14, 2017, 12:19 IST) ium=text&utm_campaign=cppst
  2. INDIAN KANOON (last visited November 18, 2021).
  3. UNITED NATIONS , (last visited November 19,2021

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