TaxTMI 
TaxTMI 
2001 (8) TMI 1425
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....ody when she was operated for hysterectomy (Chronic 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.....
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.... was informed to be a HIV+ve patient. She went to Madras 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....
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....0 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 by a person whose immunity is depressed. She was treated with a drug against candidiasis called candid-v by the private doctor but she did not respond to it. This esophagial candidiasis is one of the cardinal signs of AIDS and it occurs in a patient of AIDS after few years of entry of....
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....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 antibodies positive Elisa test, and Western Blot test is called the window period which is usually 6-12 weeks. Therefore a person during this stage is not aware (even after testing) that he is harbouring the infection but he is capable of transmitting the disease to others. 13. It was further con....
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....he 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/HIV infection and also necessary steps for giving primary treatment to AIDS patients. As there is no recognised cure for the disease, the State Government is directing its efforts to bring awareness among the people. According to him, amongst the rural masses, the awareness is about 44% and in the case....
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.... 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 that the slogan of use of condoms is also not in the right direction as there was 12% failure. AIDS is a group of 31 independent known diseases amenable for treatment independently and such diseases can be caused by starvation, mal-nutrition, mal-absorption, environment and drug addition. No one should be conde....
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....m 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 strange thing about HIV is the long time it takes to do its damage. After entering the human body, HIV may lie 'hidden' for several years before triggering its rapid multiplication and destruction of the cells. This way it escapes being attacked by antibodies, which are circulating in the blood to seek out and destroy it. ....
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....lines 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 threat of HIV-AIDS is unjustified, opined that any underestimation or indifference about the scourge would be irresponsible. He reiterated the five objectives laid out by him at African summit in Abuja, Nigera which are as under: 1. We have to prevent the disease spreading further, above all by teaching young people how to avoid it; 2. We must stop the....
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....erritories. 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 precautions to be taken, tend to increase the spread of HIV. One serious problem concerning HIV infected persons is that they do not display any outward symptoms and until the infection reaches a fairly advanced stage, no physical impairment or depletion of strength is noticed. Therefore, public awareness is very vital in the control of AIDS. 39. In a recent article published in ....
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....timated 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 constituted for the Andhra Pradesh State in 1998 to take long term and short-term objectives. The term objectives are (a) Prevent spread of HIV infection, (b) Reduce the morbidity and mortality associated with HIV infection, (c) Establishment of effective programme management at all levels, (d) Provision of technical and operational support, and (e) To mobilise community support to restrict transmission by conventional methods. Short-term objectives are (a) Strengthen Sexually Transmitted Disease (STD) Clinics to facilitate HIV/AIDS, (b) Modernise Blood Banks to facilitate HIV testing, (c) Strengthening of HIV/AIDS Surveillance and Prevention activities, (d) Human Resource Development to manag....
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.... 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 judgments of the Apex Court the horizons of Article 21 of the Constitution have been expanded recognising various rights of the citizens i.e., right to live in pollution free environment (a) Indian Council for Enviro Legal Action v. UOI 1999 AIR SCW 1069 (b) Veerendrndra Gaur v. State of Haryana (1995) 2 SCC 537, right to water (a) Subhash Kumar v. S.O. Bihar, [1991]1SCR5 (b) State of Kant v. State of A.P., (2000) 10 SCC 664 (c) Narmada Bacho Andolan v. UOI, AIR2000SC3751 , right to health, Parmanand Kataria v. UOI, 1990CriLJ671 . Articles 38, 39(e) and (f) and 47 enshrined in Part IV of the Constitution reads thus: 38. State to secure a social order for the promotion of welfare of the People :-- (....
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.... 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 of A.P. Public Health Act, 1939 defines certain diseases as infectious diseases and obliges the State to take all precautionary steps in accordance with the said Act. For obvious reasons, HIV-AIDS is not one of the identified diseases. Till today, the State did not think it fit to identify HIV-AIDS as one of the infectious diseases under the Public Health Act. 50. Apart from the Epidemic Diseases Act, 1897 and Public Health Act, there is no legislation in India regulating AIDS prevention. Likewise, decided cases dealing with the AIDS and AIDS patients and their rights with reference to fundamental rights under the Constitution are quite a few. In 1989, AIDS Prevention Bill was introduced in Indian Parliamen....
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....hed 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 obtained the authorisation certificate by June 30, 2000 from the Pollution Control Board. It appears that many hospitals have ignored the notification issued by the PCB to obtain authorisation certificates. According to a news item published in the Times of India dated 8-8-2001, the hospitals including the Government ENT Hospital, Koti are not adhering to the above rules. There is no dispute that aforesaid rules are applicable to both the Government and Private Hospitals. The disposal of bio-medical waste has relevance in the prevention of the disease because such waste includes the used needles and syringes and there is the possibility of the used needles and syringes been reused in respect of any undetected HIV....
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....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) and 21 of the Constitution of India. The said provision authorised the Government to isolate and keep persons who are found to be positive for AIDS by serological tests in separate institutions or wards for such period as may be considered necessary. A Division Bench of the Bombay High Court held that the provision does not violate Articles 14, 19(1)(d) and 21 of the Constitution of India and observed thus: Isolation, undoubtedly, has several serious consequences. It is an invasion upon the liberty of a person. It can affect a person very adversely in many matters including economic. It can also lead to social ostracization. But in matters like this individual right has to be balanced the public interest. In fac....
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....e 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 economic death by denying him employment? The Court answered the question in the negative and held that: The rule providing that person must be medically fit before he is employed or to be continued while in employment is, obviously, with the object of ensuring that the person is capable of or continues to be capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the work place. The persons who are rendered incapable, due to the ailment, to perform their normal job functions or who pose a risk to other persons at the work place, say like due to having infected with some contagious disease which can be transmitted through the normal activities at....
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....y. 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 City (SDA Fla. 1986) 639 F Supp 654; Raytheon v. Fair Employment and Housing Commission, Estate of Chadbourne, (1989) 261 Cl R 197). But, "sex" with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object. 62. Yet another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? In Kharak Singh v. State of UP., 1963CriLJ329 , Govind v. State of M.P. and other cases, the Supreme Court held that right to privacy is one of the penumbral rights of Article 21 of the Constitution. In all situations, a person can be asked to undergo HIV test w....
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....eal 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 blood specimens? 66. From the pleadings in the case, the following facts clearly emerge. There is lack of awareness in the common public and in particular the rural folk. Blood banks are although under the State control, evidently, regular monitoring process and strict measures are not taken for their effective functioning in the context of enormous increase in HIV positive cases. Even the State does not have the correct information as regards the correct number of HIV infected persons having regard to the psychological barriers that the persons infected would be subjected to social ostracism. The existing statutes available to the State would be of little or of no help in the legal framework or arresting the spread of ....
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....: 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 from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element the objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous....
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....pany 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 State in the wake of various control programmes undertaken by the State through Governmental and Non-Governmental organisations. 72. Having examined the matter in detail with reference to various materials including statistics placed before us, we are inclined to make/issue the following suggestions/directions: 1. Sufficient AIDS/HIV+ve test kits/equipment to all hospitals and institutions should be provided. The Government Blood Banks as well as licensed blood banks should be compelled to buy pool proof HIV+ve/AIDS test equipment. 2. All the Government hospitals should use only disposable needles in injections. Registered medical practitioners should be compelled to use only disposable syringes. 3. Bio-medical waste collected from ....