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2018 DIGILAW 168 (GAU)

JAHNOBI GOSWAMI v. UNION OF INDIA

2018-01-30

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : AJIT SINGH, J. 1. This Public Interest Litigation is filed by Smti Jahnobi Goswami stating inter-alia that on 15.4.2015 when a minor boy was hospitalized in Guwahati Medical College and Hospital for treatment due to 80% burn injuries and blood had to be transfused, he was found to be infected with HIV and in November, 2015, a news report was also widely published, which reported that a 9 years old boy infected with Thelassemia disease being hospitalized in Kanaklata Civil Hospital, Tezpur, got infected with HIV after blood transfusion. Similarly, in 2013, four persons including a woman also got infected during such blood transfusion in Mangaldoi Civil Hospital. Pursuant to the incident of Mangaldoi, a Suo-Moto Public Interest Litigation was taken up by this court wherein State Government was directed to implement the guidelines formulated by the AIDS Control Organization and the blood banks functioning without valid license were directed to be closed down with a further direction that a State Transfusion Council be established to ensure that all WHO prescribed mandatory tests are carried out before transfusion. 2. After the incident at Mangaldoi as aforementioned, a sum of Rs.250 lakh was sanctioned by the Government of Assam, Health and family Welfare, as a grant-in-aid towards compensation of the victims and for strengthening the blood banks under the annual plan of 2014 out of which a sum of Rs. 25,00,000/- was provided to the victims. Pursuant to the said incident, several meetings took place in the office of the Superintendent of Guwahati Medical College and Hospital as well as in the chamber of the Health Minister, Assam, where the petitioner claims to be present. In those meetings, it was decided that a machine called Nuclear Acid Test (NAT) Machines may be procured, which has a capacity to detect HIV virus within 72 hours, first at Guwahati Medical College and Hospital and then in other hospitals. At present, ELISA test has been adopted in almost all hospitals in Assam, which is outdated and is not 100% accurate and as such, it is the demand of time that NAT machine may be procured. It is stated that in the present detection process, the HIV virus may not be detected during the 3 months window period which is the time taken for initial infection of HIV virus and its detection in the blood. It is stated that in the present detection process, the HIV virus may not be detected during the 3 months window period which is the time taken for initial infection of HIV virus and its detection in the blood. A few States of India have already adopted the said method of testing and procured the machines and as such, the same may also be procured in Assam, too. 3. The petitioner has, therefore, prayed for a direction against the State Government to submit detailed reports regarding expenses of Rs.250 lakhs sanctioned to the AIDS victims in Mangaldoi Civil Hospital, Tezpur Civil Hospital and to provide Nuclear Acid Test (NAT) machines for early detection of HIV infection during the window period and also to provide such machines at Guwahati Medical College and Hospital, Dibrugarh Medical College and Hospital and Silchar Medical College and Hospital. Besides, it has also been prayed that State Governments may be directed to frame policy to compensate victims infected with HIV with provisions for punishments to the persons involved in the incidents as well as a direction to submit action taken report and progress reports of the cases registered against brokers of blood (selling and Buying) in Government Hospitals and other individuals. 4. The Respondent No.6, more precisely, the Project Director, Assam AIDS Control Society, in his affidavit has stated that the present method of testing adopted in Guwahati Medical College and Hospital is being done by an automated analyzer machine, which has high efficiency and greater potency. Besides, the installation of the NAT machines and adopting that process of medical test would make the test more costly apart from requiring heavy and expensive infrastructure. It has further been stated that Government has been doing the present ELISA test at a subsidized rate of Rs. 250/- whereas the NAT facility would cost Rs.2050/- per unit of blood sample test and at present, the cost of such blood tests around Guwahati comes around Rs.3,000/-. Besides, the new machine test would not also replace the ELISA test completely and NAT is highly technical demanding huge costs, dedicated infrastructure facilities, equipment, consumable and technical expertise etc. 250/- whereas the NAT facility would cost Rs.2050/- per unit of blood sample test and at present, the cost of such blood tests around Guwahati comes around Rs.3,000/-. Besides, the new machine test would not also replace the ELISA test completely and NAT is highly technical demanding huge costs, dedicated infrastructure facilities, equipment, consumable and technical expertise etc. It has further been stated that the AIDS Control Society has been providing free medicines, free transportations of patients to Imphal for second line of treatment, compensation of Rs.1,00,000/- to the widows of HIV patients and also supplies free blood and its components to the patients in addition to providing orphanage homes for children living with HIV/AIDS and as such, the State Government has adequate medical facilities for such patients. 5. In the affidavit filed by the Respondent No. 5 - Superintendent of Police, CID, Assam - it is stated that the police have already arrested some persons connected with illegal blood trading and no Government Official was found to be involved in such trading. 6. Upon hearing the learned counsel for the parties and after perusing the records, we are of the considered view that the issue involved is of paramount importance pertaining to the public at large. The police have been taking steps by apprehending the persons involved in illegal trade of blood and the Government has also been providing adequate facilities to the patients infected with HIV. 7. As observed by the Supreme Court in Paschim Banga Khet Mazdoor Samity reported in (1996) 4 SCC 37 , it is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See :Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. [See :Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. 8. But, at the same time, Supreme Court also observed in Vincent Panikurlangara reported in (1987) 2 SCC 165 that the branch with which we are now dealing, namely, health care of citizens, is a problem with various facets. It involves an ever-changing challenge. There appears to be, as it were, a constant competition between Nature (which can be said to be responsible for new ailments) on one side and human ingenuity engaged in research and finding out curative processes. This being the situation, the problem has an ever-shifting base. It is common place that what is considered to be the best medicine today for treatment of a particular disease becomes out of date and soon goes out of the market with the discovery or invention of new drugs. Again what is considered to be incurable at any given point of time becomes subjected to treatment and cure with new finds. There is yet another situation which must be taken note of as human knowledge expands and marches ahead. With the onward march of science and complexities of the living process and hitherto unknown diseases are noticed. To meet new challenges, new drugs have to be found. In this field, therefore, change appears to be the rule. 9. It is true that best facilities must be provided by the State Government in the healthcare sector and it must be constant and continuous endeavour of the Government to equip its healthcare institutions with best of the facilities. But at the same time, the fact that "change is the rule" also cannot be ignored. Exposure to daily developing scientific experiments and discoveries, inventions of modern equipment etc. But at the same time, the fact that "change is the rule" also cannot be ignored. Exposure to daily developing scientific experiments and discoveries, inventions of modern equipment etc. are no longer new to this day-to-day developing world and it is out and out true that necessity is the mother of invention. But at the same time, it also must be kept in mind that in a developing country like India, whether such modern and expensive methodologies and/or installation of such equipment would serve the very purpose to the poor people and whether it would also suit the government exchequer. Although adopting a new method or equipment is relevant, the consequence of such adoption is of paramount importance. It must be adopted not for name sake but for the benefit of poor and the sufferers. It must also be affordable to the larger segment of population and simultaneously must be effective. 10. We must not be oblivious of the fact that ELISA test has been effectively functioning at present and this court, while exercising jurisdiction under Article 226 of the Constitution, cannot direct the Government to procure Nuclear Acid Test (NAT) Machines. The Government is the authority to decide keeping into consideration all the aspects involving financial implication vis-à-vis benefit to the poor. This court is not an expert and putting a view whether Government should adopt such new methods or machines is beyond question. It is equally true that ELISA test is functioning effectively, although its improvement when necessary should be made. But, only because of this fact, we cannot direct the State Government to procure Nuclear Acid Test (NAT) Machines. However, it goes without saying that the State Government must keep updating its methods and machines from time to time in a routine manner so that it could match its steps with the rest of the world and we sincerely hope and expect that the Government would do the needful with utmost dedication and sincerity. We also hope that the State Government would duly consider the proposal for procuring the Nuclear Acid Test (NAT) machines, as and when, deemed fit and proper. 11. With the above observations, this Public Interest Litigation stands disposed of.