TMI Blog2001 (8) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... Cervicitis) on 30-1-1998 at the hospital. She prays for an enquiry into matter and to take action against those responsible for causing the infectious disease and for a direction to the SCCL to provide sufficient financial assistance. 2. The matter has been referred to a Larger Bench having regard to the importance and magnitude of the problem, the inhabitants of the State had been facing with. When the matter came up for admission on 11-7-2001, we directed the Registry to issue a public notice in various national and regional newspapers inviting intervention of the Non-Governmental Organisations and the public-spirited persons. The respondents were also directed to file counters as regards the precautionary measures taken by them, amenities available in the hospitals and blood banks, regulatory measures taken by the State in relation to running of such hospitals and blood banks, treatment, including the mode and manner of treatment, rehabilitation of the patients, as also spreading of awareness amongst the general people. 3. In response to the said notice, one Sri S. Jeevan Kumar, Convenor, Human Rights Forum, Hyderabad, Dr. P.V.R. Bhaskara Rao, Chairman, People for Econom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras General Hospital wherein again the disease was confirmed. On 17-10-1998 she went to Fair Pharmacy Hospital in Ernakulam, Kerala State for ayurvedic treatment. 6. When HIV tests were conducted both to her husband and to her elder brother, the donor of the blood, it was revealed that her brother was a HIV+ve patient. It is alleged that before transfusion of the blood of her brother, no care was taken to conduct the relevant and necessary blood tests and because of the negligence on the part of the hospital authorities, she was infected with the disease. She got issued a notice to SCCL through a consumer welfare council to which it was replied that the Medical and Health staff of the hospital are neither responsible nor negligent in conducting any blood tests. 7. A lengthy counter-affidavit has been filed by the Medical Superintendent of SCCL, wherein the allegations made in the petition were denied. But, it is admitted that her blood was not tested for HIV status but the blood of the donor was tested and was found to be negative. The counter-affidavit narrates the events from the day the petitioner approached the hospital for treatment on 23-1-1998 onwards, purported care b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-10-97 HBS AG to Rule out Serum Hepatitis 58 12/98 M/s. Tulip 4-11-97 HIV to Rule out AIDS 71481810 11/98 Merind 8-7-97 9. It is only after carrying out the above tests and confirming that the blood donor is free from the diseases, blood was sent to operation theatre for transfusion. It was also stated that while the name of the donor was recorded as Mr. Lakshmi Rajaiah in the hospital records, the petitioner mentions the name of the donor as Pettam Laxmi Rajam. Inspite of the fact that the SCCL area hospital is having specialists to treat all problems, the patient decided to persist with the treatment at private hospital. 10. It was further contended that the private Surya hospital where the petitioner had approached for treatment referred her to a private medical practitioner. Dr. Ramesh Kumar who subjected her to outpatient operative procedure called Upper Gastro Intestinal endoscopy procedure on 14-3-1998 and it was found that she was having esophagial candidiasis which would be sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to undergo HIV test. There was inconsistency with respect to the name of the blood donor. The donor who gave blood on 30-1-1998 cannot be a source of acquiring AIDS as he was found to be HIV negative. The blood donor was not available to the hospital to carry out thorough clinical and laboratory evaluation as per the established norms. The possibility of asking a HIV+ve person to impersonate as Mr. P. Lakshmi Rajaiah at city clinical laboratory cannot be ruled out for the purpose of extracting compensation from the company. 12. The SCCL hospitals have well established process for screening of blood donors for HIV and have been testing the blood of donors since 1994. The counter also mentions about the phenomenon called window period, which is encountered in AIDS. This period is the period during which virus is circulating in the body of the individual but is not detected by serological tests which period lasts for six to twelve weeks. It is possible that Mr. Lakshmi Rajaiah might be in the window period and would have tested sero-negative. The window period is described as follows: The period between the acquisition of infection and seroconversion i.e., appearance of antib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and awareness programme had been started. 15. A detailed counter-affidavit has also been filed by the Addl. Project Director, A.P. State Aids Control Society, Hyderabad on behalf of the respondents 7, 9 and 10. The counter has spoken to various measures taken by the Government having regard to the magnitude of the problem. The counter in has dealt with the aspects of HIV infection in the State of Andhra Pradesh, precautionary measures taken by the State, amenities available in the Hospitals and blood banks, HIV testing techniques and blood banking technology, regulatory measures taken by the State in relation to running of hospitals and blood banks, treatment including the mode and manner of treatment, rehabilitation of the patients and also spreading of awareness among general public and involvement of NGOs. 16. We have heard the learned Counsel appearing for the parties including Counsel appearing for the interveners. 17. The learned Advocate-General appearing on behalf of the State has placed voluminous material before the Court to contend that having recognised the magnitude of the problem, the State has taken several steps to control and prevent the spreading of AIDS/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has been made for rehabilitation of the AIDS patients. No separate arrangement also has been made for treatment of AIDS patients. 21. Sri Ravishankar Jandhyala, learned Counsel appearing on behalf of one of the interveners would submit that having regard to Articles 21, 39 and 47 of the Constitution of India, the problem should be considered in the light of the expanded horizons of life and liberty as adumbrated under Article 21 of the Constitution of India. The State cannot deny the right of the citizen to health and the hospitals should be provided with all the equipments for conducting the requisite tests when blood transfusion takes place. The learned Counsel would submit that in India the number of AIDS patients is between 3.5 and 4 million whereas in the entire world only ten million people are suffering from the disease. According to the learned Counsel, the disease is more prevalent in women, prisoners and children. It was suggested that a comprehensive Act as has been introduced by the State of Maharashtra should also be introduced in the State of A.P. 22. Mr. A. Satya Prasad, learned Counsel appearing for one of the interveners, Dr. P.V.R Bhaskar Rao, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (HIV I and HIV II) belong to the family of retroviruses and the infection with either, leads to progressive dysfunction of the immune system making it incapable of fighting bacteria and other pathogens. 27. As is evident by its name, AIDS is not a single disease but is of a syndrome - a set of diseases, which result from the destruction of the body's defences by the human immunodeficiency virus, HIV. In healthy individuals, infections and cancers are kept at bay by virtue of an array of defenders in the body, which constitute its immune system. Unknown to us, these defenders - the white blood cells (WBC) are at work every day, recognising foreign invaders in the body and fighting them both by recruiting any army of cells which attack infection directly and by producing specific chemicals called antibodies which neutralise the invaders. The detection of these antibodies in blood samples is used to determine past or present infection. 28. How exactly HIV knocks down the immune system is still a matter of active research. According to the most widely accepted theory, HIV lymphocytes (WBC), which play a vital role in orchestrating the defences of the immune system. The stran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 15 years. However, a person with full-blown AIDS can survive for a maximum period of 6-12 months. 32. The world community through the United Nations Organisation and one of its specialised agencies - the World Health Organisation - has taken up the challenge to contain this deadly disease. The studies initiated and the solutions suggested provide guidelines for the individual member-States to effect necessary changes in their legal systems. Nonetheless uniform standards throughout the world cannot be adopted in this regard. Social, economic and cultural factors play a large part in shaping the legal policies. 33. The United Nations General Assembly held a special session on HIV-AIDS at the highest political level on 25th and 26th June, 2001 in New York. It focused on steps to intensify international action and to mobilise resources to fight the epidemic. In connection with that session, Mr. Kofi A. Annan, the Secretary-General of the United Nations, released a message, which was published in the columns of The Hindu' dated 26-6-2001. In the said opinion titled as 'How the world can win its battle against AIDS', the author while saying that despair about global ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding ways and means to combat AIDS. In this international scenario, the sub-continent, and given the social structure of the citizenry, the problem in India is also reaching an acute stage. Size of the problem in India: 37. The first case of HIV (arguably) was detected in India in the year 1986 and since then HIV prevalence has been reported in all the States and Union Territories. It is estimated that the number of HIV infected adults in India, in mid 1998 was 3.5 million. In recent years, it has spread from urban to rural areas and from individual having high-risk behaviour to the general population. It was found that extra marital sex was the primary mode of infection to the extent of 80% of AIDS cases. Blood transfusion and blood product transfusion like plasma is estimated to contribute over 5%. 38. In rural areas, illiterate people, those belonging economically weaker sections and victims of several social disabilities, even now continue to live in segregated areas with no minimum civic amenities. Abject poverty has contributed to high rate of illiteracy among these classes. Living together in clustered groups without any awareness as to health, care and necessary p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of condoms for safe sex in high risk population i.e., Migrant labour, truckers, prison inmates etc. 42. The 1st case of HIV infection was reported in Andhra Pradesh in 1986. Year-wise incidence percentage of serology tested HIV positive cases is as follows: Year Percentage 1990 0.16 1996 0.9 1997 1.1 1998 1.1 1999 0.9 2000 1.0 200! 1.0 Rise in the positive cases is estimated to be 0.16 in 1990 to 0.94 in 1996 and it has risen to 1.0 in 2000. 43. In the State of Andhra Pradesh Directorate of AIDS Control Programme was established in 1992 in close coordination and collaboration with other Government Departments, Public, Private and Non-Governmental Organisations. The Directorate was responsible for development and implementation of AIDS control plan as approved by NACO. As per the guidelines of National AIDS Control Organisation an AIDS Control Society was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lood banks are instructed to do all the mandatory tests HIV, HCV, HbsAg by Elisa method in addition to the VDRL and Malaria. From 1st of June, 2000 as per NACO guidelines, voluntary Counselling and Testing Centres have been established in all the District Headquarters Hospitals and in Microbiology Departments of the Medical Colleges. Surveillance centres known as Blood Testing Centres have also been established at various Medical Colleges to monitor the trends of the disease. 45. It is stated that Family Health Awareness Campaigns are being held at the Sub-centre level for 15 days covering the entire rural and urban slum population in the State. A centre is established at the State headquarters on every Wednesday to give counselling to all HIV affected and their relatives about future course of action in prolonging their lives by suggesting appropriate methods for use of condoms, proper nutritious diet, treating their psychological dispersion and suggesting methods how to live happily. 46. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. By reason of numerous jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution are not enforceable in a Court of law, they are nevertheless fundamental in the governance of the State. By reason of expansive interpretation of life in Article 21 of the Constitution of India in various Supreme Court judgments, which is now the law of the land, right to life includes the right to all reasonable health facilities. 48. It is well accepted that the disease spreads through homosexuals and/or hetero sexual intercourse, by blood transfusion and use of contaminated needles for the purpose of injections and through antenatal transfusion from mother to the child. The person infected with HIV due to various reasons may not be aware and by reason of such innocence he or she spreads the disease. Do we have any law to deal with a situation? 49. Epidemic Diseases Act, 1897 (Act 3 of 1987) was enacted for the prevention of the spread of dangerous epidemic diseases in the country. HIV-AIDS, though not epidemic, is being more lethal than any other dangerous epidemic, in our opinion; the State is vested with the power to take special measures when ordinary provisions of law are insufficient for preventing the outbreak or spreading of the recent scourge. Section 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public interest litigation case filed highlighting the serious deficiencies and shortcomings in the matter of collection of, storage and supply of blood through the various blood centres operating the country particularly in the context of enormous increase of HIV infected cases inter alia directed the Government to establish a National Council of Blood Transfusion as a society registered under the Societies Registration Act. A direction was also issued to all the State Governments to establish State Councils of Blood Transfusion and also undertake to adopt strict licensing procedures for establishment of blood banks under the Drugs Control Act. As already noticed, one such State Council has been established in the State of Andhra Pradesh and it is dealing with various licensing aspects of blood banks. 53. Another important aspect of the matter is that many hospitals in the State including Government Hospitals are not disposing of bio-medical waste as per norms specified in the Bio-Medical Waste (Management and Handling) Rules, 1998. According to the schedule for bio-waste management, all hospitals and nursing homes in towns with a population of 30 lakhs or more must have obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthy life and the State's compelling constitutional obligation to protect other citizens from attacks of AIDS presents a situation where the right to privacy and public interest conflict each other. As mentioned above, right to marriage, right to privacy and right employment etc., of HIV-AIDS patients come in conflict with the rights of other citizens as well as the duty of the State under Article 47 of the Constitution of India to endeavour to improve the health of the citizens. Can the State segregate HIV-AIDS patients in hospitals from others? Can the State compel the high-risk groups like migrant workers, truck drivers, prison inmates and sex workers to undergo HIV-AIDS test and deny those persons normal life? Can the State deny the privileges and facilities to those persons who are tested HIV+ve (HIV-AIDS) ? These are some of the paradoxial questions, which have come before the Courts all over the world. Of late, the Courts in India are also called upon to answer these questions. 57. In Lucy S. D'Souza v. State of Goa, AIR1990Bom355 , Section 53(1)(vii) of Goa, Daman and Diu Public Health Act, 1985 was challenged as unreasonable and violative of Articles 14, 19(1)(d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... homes on the ground that they are infected with HIV/AIDS is violative of their fundamental right under Article 21 of the Constitution of India. After referring to the judgment of the Supreme Court in State of Uttar Pradesh v. Kaushailiya, [1964]4SCR1002 , the Division Bench judgment of the Bombay High Court in Lucy D 'Souza 's case (supra), this Court held that Section 17(4) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter called as 'ITP Act') which empowers the Magistrate to send the rescued women to welfare homes cannot be said to violate Articles 14 and 21 of the Constitution of India. The Division Bench, therefore, directed that those sex workers who are found to be HIV+ve be sent to welfare homes for a period of two years during which they may be provided adequate medical facilities and train them in vocational courses. We have no reason to differ from the ratio in P.N. Swamy case (supra). 60. In MX of Bombay Indian Inhabitant v. M/s. Z.Y., AIR1997Bom406 , a Division Bench of the Bombay High Court was required to address a question as to whether it is permissible for the State under our Constitution to condemn a person infected with HIV to virtual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to marry is a fundamental right and, therefore, the hospital must be directed to pay compensation by way of damages. The Supreme Court held that right to marry cannot be claimed to be absolute and that a person suffering from HIV/AIDS cannot be said to have absolute right to marry though he deserves full sympathy and equal treatment in all walks of life. It is apposite to extract the following passage: AIDS' is the product of indisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how high so ever or, for that matter, how low he may be in the social strata. The patients suffering from the dreadful disease 'AIDS' deserve full sympathy. They are entitled to all respects as human beings. Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions. (See: School Board of Nassau Country, Florida v. Airline (1987) 107 SCT 1123; Chalk v. USDC CD of Cal, (9th Circuit 1988) 840 2.F 2d 701; Shuttle-worth v. Broward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directions issued by the Medical Officer are to be recorded. 64. Under the ITP Act, the sex workers can also be compelled to undergo HIV/ AIDS test. When sex workers are detained in corrective institutions or welfare homes either under Section 10-A or under Section 17(4) or 19(2) of the Act, there are adequate provisions for medical examination. There are also provisions in segregating rescued women who are suffering from venereal diseases. We may also notice that Section 2 of Dissolution of Muslim Marriage Act, 1939, Section 32 of Parsi Marriage and Divorce Act, 1936, Section 10 of Indian Divorce Act, 1869, Section 13 of Hindu Marriage Act, 1956 and Section 27 of the Special Marriage Act, 1955 make incurable venereal diseases of either of spouses a ground for divorce. Further under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases. 65. In cases of divorce on the ground that the other spouse is suffering from HIV/ AIDS or in case under Sections 269 and 270 IPC, can the person be compelled to give blood specimen for HIV test. The immunity under Article 20 does not extend to compulsion of giving of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial justice could only be done by awarding monetary compensation treating the violation as a constitutional tort. This principle developed in common law jurisdictions in the last quarter of the last century has been expanded by the Supreme Court which is now even followed by British Courts. Starting from Rudul Shah v. State of Bihar, 1983CriLJ1644 , till D.K. Basu v. State of W.B., 1997CriLJ743 , the Supreme Court emphatically laid down that when fundamental rights are violated a citizen has a public law remedy of seeking compensation and that this public law remedy is in addition to the private law remedy of suit for tortious damages. We may quote the following from the judgment of the Supreme Court in D.K. Basu's case: it is now a well accepted proposition in most of the jurisdictions that monetary or pecuniary compensation is an appropriate and indeed an effective and some times perhaps the only suitable remedy for redressal of the established infringement of the public servants and the State is vicariously liable for their acts. The claim of the citizen which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AIDS at the time when the blood was transfused for hysterectomy operation. Futhermore, no tests were conducted on her at the subsequent stages also. It is really astonishing that if the hospital in Hyderabad could find out that the victim was suffering from AIDS, the hospital of the Company which is stated to be equipped with all modem facilities including the equipment to test AIDS, could not do so. 70. Though we do not intend to issue a direction upon the respondent-Company for grant of special and general damages in tort in these proceedings, however, having regard to the peculiar facts and circumstances of the case, particularly, the negligence on the part of the medical and para-medical staff of the hospital of the company in conducting tests on the victim at the appropriate stages, we are of the view that the petitioner is entitled to some reasonable amount of compensation to meet the costs incurred by her towards medical expenses, in this Public Law Remedy. 71. All the learned Counsel who argued the matter put forward various suggestions and requested this Court to issue appropriate directions to the respondents for better management and control of AIDS in the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of patients who come for treatment of HIV+/AIDS should not be disclosed so that other patients will also come forward for taking treatment. 14. There should be change in the method of AIDS propaganda and no slogans, which promote indiscriminate sex, should be used in the propaganda. 15. The infected HIV+ patient should be educated properly about the AIDS so that he may not inadvertently or innocently be responsible in spreading the disease. 16. The latest method of testing blood for HIV+/AIDS should be introduced in all the hospitals by giving subsidies so that tests can be conducted at reduced costs. 17. All the Hospitals and Nursing Homes should be directed to dispose of their bio-medical waste in terms of Bio-Medical Waste (Management and Handling) Rules, 1998 and they shall strictly comply with the norms specified therein. Such hospitals shall be directed to obtain the necessary authorisation for disposal of the waste from the PCB. 18. Like the Central Government, which has exempted from payment of Central excise duty in respect of medicines imported for the treatment of AIDs, the State Government should also consider the desirability of grant of sales tax ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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