HIV Rights of PWHA

Judgments

The Lawyers Collective has fought a number of landmark cases for people living for HIVpertaining to discrimination on the ground of a persons HIV status, breach of confidentiality, negligence in blood transfusion and the implementation of the National AIDS Control Programme, amongst others, Below are the judgments in some the significant cases fought by the Unit.

1. Public Health
   1. Lucy R. D’Souza v. State of Goa  (AIR 1990 Bom 355)
   2. LX v. Union of India, Delhi High Court (Order dated 5 May 2004)
   3. Shri Subodh Sarma & Anr. v. State of Assam & ors. (2000) – Guwahati High Court

1. Confidentiality
   1. Mr. X v. Hospital Z (1998) – Supreme Court of India
   2. A, C & Ors. v. Union of India & Ors (1999) – Bombay High Court
   3. Mr. X v. Hospital Z (2002) – Supreme Court of India

1. Discrimination
   1. MX v. ZY AIR 1997 Bom 406, AIR1997Bom406, 1997(3)BomCR354, (1997)2BOMLR504 — Bombay High Court
   2. Mr. Badan Singh v. Union of India & Anr. (2002) — Delhi High Court
   3. X v. State Bank of India (2002) – Bombay High Court
   4. G v. New India Assurance Co. Ltd. (2004) Bombay High Court
   5. X v The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82
   6. RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal]
   7. S. Indian Inhabitant of Mumbai v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999]
   8. A v Union of India [Unreported (28 November 2000) In the High Court at Bombay, WP No. 1623 of 2000 and Review Petition No. 3 of 2000]

1. Quacks
   1. India Network of Positive People v T.A. Majeed & Ors

1. Blood Safety
   1. P v. Union of India (2001) — Kolkata High Court (Negligence in blood transfusion)
   2. M Chinnaiyan v. Sri Gokulam Hospital (2006) – National Consumer Disputes Redressal Commission

Public Health

Lucy R. D’Souza v. State of Goa [Bombay High Court (AIR 1990 Bom 355)]

The late Dominic D’Souza had gone to donate blood where he was found to be HIV positive and as a result was quarantined in a TB hospital. The Goa, Daman and Diu Public Health Act, 1985 authorised the State of Goa to mandatorily test any person for HIV and isolate persons found to be HIV positive and on such conditions for such period as may be prescribed. The provision was challenged before the Goa Bench of the Bombay High Court by Dominic’s mother, Lucy D’Souza, on the ground that it violated the fundamental rights of her son, guaranteed under Articles 14 (right to equality),19(1)(d) (right to move freely throughout the country) and 21 (right to life) of the Constitution.

The Court held that the matter essentially fell in the realm of policy and this decision was taken by those who were in charge of advancing public health and who were equipped with the requisite know-how. Further, while recognizing the harmful effects of isolation of people living with HIV, the Court held that held that in case of a conflict between individual liberty and public health, considerations of public health would prevail. However after the judgment had been passed, the Government has not to implement the impugned Act.Read the full judgment HERE

LX v. Union of India [Delhi High Court (CWP – 7330/2004, 5 May 2004)]

LX, an undertrial, tested HIV-positive and required antiretroviral therapy (ART) during the time he was incarcerated. He was initiated on an ART regimen by the jail hospital and Safdarjung Hospital. Subsequently, he was released on bail, but the authorities informed him that his treatment would be discontinued once he was released. The drugs were priced such that he could not afford to purchase them once he was released. LX filed a petition praying that the Government continue to provide him ART despite his release.

In a series of interim orders, the Delhi High Court directed the Government to continue to provide ART to LX. Later, LX was directed to present himself at the All India Institute of Medical Sciences (AIIMS) with his past records for the continuation of his treatment. Pursuant to the commencement of the ARV roll-out by the Government of India in April 2004, the High Court directed the government provide ART to LX under the ARV roll-out programme and to reimburse AIIMS for the costs incurred by them. Read the full order HERE.

Shri Subodh Sarma & Anr. v. State of Assam & Ors. – Guwahati High Court (2000)

This public interest litigation was filed praying for the proper utilisation of funds allocated by the Central Government to Assam for the HIV programme. Grievances of the Petitioners included, a lack of systemised data, general awareness among the public and proper documentation, blood banks operating without licenses and control, misallocation of funds, discrimination against people living with HIV, amongst others.

The Court directed the Respondents to:

• Properly implement guidelines and strategies formulated by NACO in letter and spirit.
• Not divert funds released by the Union Government to any other heads of account except for the implementation of the programme as per guidelines and strategies formulated by NACO. Enquire as to the irregularities in funding affairs, and take appropriate remedial measures.
• Close Blood Banks without valid licenses and establish a State Transfusion Council to regulate Blood Banks in the State ensuring that all tests mandatorily required to be done as prescribed by the WHO before transfusion of blood.
• Open AIDS Counselling Centres at different State Hospitals and ensure their effective functioning, and appoint trained and qualified persons
• Provide adequate equipment and other facilities in the three state Medical Colleges.
• Evolve monitoring system to supervise the implementation of the Programme
• Ensure persons suspected to be living with HIV/AIDS are not refused treatment in the hospitals.

Ram @ Ramdas R. Ubale v. State of Maharashtra – Bombay High Court (Criminal Application 371 of 2008 in Appeal No. 706 of 2006)

In September 2008, an HIV positive prisoner from Yerwada Prison, Pune appealed for bail on the grounds that medical facilities in the prison were insufficient to manage his medical condition. He provided data to show that 32 prisoners in Yerwada prison had died between 2001 and 2005 due to non-availability of medical facilities. The Court however, based on expert opinion, dismissed the appeal, concluding that the applicant’s CD4 count did not indicate the needs for initiation of ART treatment. While the application was pending, the prisoner died.

Broadening the scope of the case, the High Court ordered NACO through MSACS to provide counselling and testing facilities in prisons in Maharashtra. Mr. Anand Grover and Mr. Yug Choudary were appointed amicus curiae (friend of the court) to help and guide the Court. Two pilot projects were started at Yerwada and Amravathi prisons, providing counselling and testing services and later at Nasik and Thane. Anand Grover submitted a note on national protocols prescribed by NACO which stipulate voluntary counselling, testing and treatment. An expert Committee was setup to examine the note and propose their suggestions in addition to inspecting the prisons.

Read the order dated 09.01.2009 HERE

Read the full text of the amicus noteHERE

On 15th September 2009, the Court directed the Secretary (Health), Secretary (Home) and Secretary (Finance) to meet and pass a final order to protect the health of prisoners. The State Government was directed to issue an advertisement for the recruitment of the doctors and provide the details of infrastructure in the jails with regard to establishment of hospitals and dispensaries. In the interim period doctors from civil hospitals and NGOs were to be accepted in the jails. Read the order dated 15.09.2009 HERE.

On 12th January 2010, the minutes of the meeting, held as per the direction of the court, on 4th January 2010 were filed in Court setting out a tentative schedule for establishing  laboratories, organising sensitisation camps and starting of full fledged ICTCs in four prisons i.e. Nashik, Yerawada (Pune), Nagpur and Thane.  The Court ordered the State Government to complete the process of recruitment of medical officers at every prison, by 20th February 2010. They were also directed to follow the tentative schedule and set up full fledged ICTCs latest by 15th February 2010 in the aforesaid four Jails. Till full fledged ICTCs were set up and were in prisons where no ICTCs were available, the State was directed that the patients/prisoners be regularly taken at the civil hospital under the Police escort. Read the order dated 12.1.2010 HERE.

On 2nd March, 2010, the Court was informed that the Government had sanctioned necessary funds for purchase of material and equipments for setting up laboratory and counseling centres at four Central prisons i.e. Thane, Nashik, Nagpur and Pune. The State Government was directed to give particulars as to whether the centres had started functioning which was filed subsequently. Read the order dated 2.3.2010 HERE.

In view of the orders passed the matter was disposed off with a number of directions, some of which are highlighted below:

1. ICTC personnel may visit the prisons in the State where regular ICTC facilities are not available at least once in a week;
2. The State may try to increase the strength of sanctioned posts of Medical Officers in order to see that every person may have medical officers whose services can be utilised at the prisons. Till such time, the State was directed and see that a medical officer who is in charge of a local dispensary may visit such centre where there are no medical facilities regularly and at lease thrice a week;
3. One post of Laboratory Technician be filled latest by 31st July, 2010; So far as the remaining 11 posts of compounders were concerned, the State Government was directed to expedite the appointment procedure within a period of one month from today;
4. The State was directed to educate the prisoners by way of advertisement or by showing documentary films about the risk factors involved with HIV, with a view to curb its spread in the jails,
5. Where a prisoner was suffering from serious disease, the procedure prescribed in Rule 27 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 is required to be followed. This should be brought to the notice of the officers in charge of the various prisons in the State of Maharashtra as well as to the medical officers so that these Rules can be properly followed in a given case.

Magistrate’s were also directed to inspect the concerned prison periodically at least once in a month in order to monitor whether the appropriate facilities are available and whether the patients are properly getting medical treatment at various prisons.

Read the order dated 8.3.2010 HERE.

CONFIDENTIALITY

Mr. X v. Hospital Z (1998) 8 SCC 296, AIR 1998 SCW 3662 — Supreme Court of India

Mr. X, was directed by the Government to accompany his uncle, who was a minister in the State Government, to Z Hospital in the south of India for treatment. The minister was posted for surgery, however, it was cancelled due to shortage of blood. Later, Mr. X and his driver were asked to donate blood for the operation. Their blood samples were taken and test results showed that Mr. X’s blood group was A(+ve). However, Mr. X was not disclosed the result of his tests at all.

A bit later, Mr. X proposed marriage to one Ms. Y which was accepted. In the meantime, the Hospital informed the minister that Mr. X had tested positive for HIV. When he came to know of this, Mr. X himself called off the marriage. He went again to the Hospital Z where several tests were conducted and he was confirmed to be HIV positive. Since the marriagehad been settled but was subsequently called off, several people including the members of the Mr. X’s family and persons belonging to his community became aware of the appellant’s HIV positive status. This resulted in severe criticism of Mr. X and he was ostracized by the community, forcing him to leave his State.

Mr. X then approached the National Consumer Disputes Redressal Commission for damages against the Hospital Z, on the ground that the information which was required to be kept confidential at common law and under medical ethics was disclosed illegally. The Commission dismissed the Petition summarily by its order dated 3rd July 1998 on the ground that Mr. X could seek his remedy in the civil court.

Mr. X therefore approached the Supreme Court. The question of law before the court was whether the National Consumer Forum had the jurisdiction to entertain a case in which the plaintiff was HIV positive and whose status was disclosed by the hospital to 3rd parties. The Supreme Court, however, chose to pass a judgment on merits and held that:

1. Patients suffering from ‘AIDS’ deserve full sympathy and are entitled to all respect as human beings. Jobs cannot be denied to them.
2. Although the doctor-patient confidentiality is an important and part of the medical ethics incorporated by the then Medical Council Act, a patient’s right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse.
3. Since HIV is fatal and the life of the spouse has to be saved, the right to privacy of the patient is not absolute in this situation and may be restricted. There was nothing wrong, therefore, in Hospital informing the prospective spouse of Mr. X’s HIV status.
4. Since acts likely to spread communicable diseases are
5.  a crime, the failure of the hospital to inform the spouse of the disease would make them participant criminals
6. Since Indian matrimonial laws provide venereal disease as a ground for divorce, a person suffering from a VD had no right to get married till s/he is fully cured and such a right must be treated as a ‘suspended right’.

Against this Judgment an application was filed before the Supreme Court to review and clarify to judgment.  

Read the full judgment HERE.

A, C & Ors. v. Union of India & Ors. (1999) – Bombay High Court

A, a female and C, a male, both of whom had been diagnosed as HIV positive. They desired to get married to each other. They filed this Writ Petition in the Bombay High Court, seeking clarifications in the light of the Supreme Court judgment, in Mr. X v. Hospital Z (1998) 8 SCC 296 which had held that the person’s right to get married was suspended, during the period when a person is HIV positive and if a person living with HIV were to marry, he or she may be guilty of an offence under the Indian Penal Code.

The Bombay High Court held that as a person living with HIV had moved the Supreme Court, on the same issues raised in the Petition, contending that his fiancée had no objection to living with him in wedlock, and had sought clarifications from the Supreme Court, as to whether a person suffering from a communicable disease has a right to marry and even if such a marriage is solemnised by mutual consent, whether it attracts criminal action, A and C therefore, ought to approach the Supreme Court and all the more when the Supreme Court itself was seized of the matter. Read the full order HERE.

Mr. X v Hospital Z (AIR 2003 SC 664, (2003) 1 SCC 500) – Supreme Court of India

This case was filed by the Lawyers Collective HIV/AIDS Unit on behalf of its client Mr. X, seeking clarifications and challenging the judgment of the Supreme Court in the case ofMr.X v. Hospital Z (1998) 8 SCC 296, where it had suspended the right of PLHAs to marry although it was never an issue before it.

The Court held that all observations relating to marriage in Mr. X v Hospital Z 1998 were not warranted as they were not issues before the court. However, the Supreme Court’s pronouncements regarding the role of hospitals to make disclosure of HIV status in Mr. X’s judgment remain as they were made regarding an issue before it in the case

Therefore, it held that the Supreme Court’s judgment in Mr. X v Hospital Z to the extent that it suspended the right of people living with HIV/AIDS to marry is no longer good law and restored the right of an HIV + person to marry. However, it further held that this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage. Read the full judgment HERE.

DISCRIMINATION

MX v. ZY AIR 1997 Bom 406 – Bombay High Court

MX was working as a casual labourer for a public sector corporation, ZY.  After working for sometime, MX was put on a selection panel of casual labourers for confirmation to a regular post, for which he was required to undergo medical examination. The examination revealed that he was HIV positive, but otherwise physically fit. After learning the results of his medical examination, the Respondent, ZY, deleted MX’s name from the selection panel of casual labourers, and terminated his contract. MX challenged his removal as well as the rules framed by his employer which required that all employees undergo mandatory testing for HIV and those testing positive would not be recruited, arguing that they violated Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life).

In a landmark judgment, the Bombay High Court held that no person could be deprived of his or her livelihood except by procedure established by law and that the procedure must be just, fair and reasonable. It held that:

1. If a person is fit to perform his job functions;
2. is otherwise qualified and
3. does not pose a substantial risk to fellow workers;

Further, the Court held that a public sector employer cannot deny a person employment solely because he is HIV positive. Each determination of whether a person is incapable of performing the job must be made by conducting an individual enquiry taking into account the state of medical knowledge at the time. Accordingly, the High Court found that MX’s dismissal was arbitrary, unjust, and unlawful.

The court further held that in proper cases where a person can show that he or she would not be able to prosecute his or her if his status is disclosed and in the interests of the administration of justice, the Court will permit the party before it to suppress his or her identity and prosecute or defend the proceedings under an assumed name. Read the entire judgment HERE.

Mr. Badan Singh v. Union of India & Anr. Delhi High Court (2002)

Seven years after Mr. Singh was enrolled in the Border Security Force, it was discovered that he had contracted HIV Infection as well as tuberculosis of the lungs and abdomen with infective hepatitis. The Medical Board considered him unfit for further service. A Review Medical Board was also convened on his request but also arrived at the conclusion that he was unfit for further service. Mr. Singh was medically boarded out from service with seventy per cent (70%) disability though he asserted that on the date of the termination of his services, he was capable of performing the duties assigned to him but the Respondents made no effort to consider this aspect.

Pension rules of the BSF do not preclude a person from obtaining a pension if the infirmity which permanently incapacitates them results from the duties officially performed. It was held that one of the essential functions and duties of the Government and any other Authority directly sourced from Government funds is to extend medical benefits and support to the suffering. The Court observed that the grant of invalid pension is nothing more than a basic obligation. The Respondents were directed to pay the Petitioner an invalid pension and interest at the rate of 6% p.a. as well as costs of the petition, quantified at Rs. 5000. Read the full judgment HERE.

X v. State Bank of India (2002) – Bombay High Court

Mr. X had been working at State Bank of India as sweeper (casual labour) since 1987. In about 1997 the bank considered X for recruitment as hamal-cum-sweeper for which he was interviewed. He was thereafter asked to undergo a medical check-up which included an HIV test. He tested positive for HIV. He was orally informed by his supervisor at the bank that he was rejected on grounds of his HIV positive status. X kept visiting the bank but he was not asked to undergo further fitness test or given a letter rejecting his application.

X approached the Bombay High Court on the ground that he was being discriminated against because of his HIV status. The court relying on the decision in MX v. ZY (AIR 1997 Bombay 406), held that X could not be denied the opportunity of employment, however, due to the passage of time, he would have to undergo reasonably required tests for his physical fitness. The bank was to consider Mr. X for absorption on a priority basis, subject to his medical eligibility, and till then he would be considered a casual labourer. Read the full text of the judgment HERE.

G v. New India Assurance Co. Ltd. (2004) – Bombay High Court

G was a widow whose husband died while in employment of New India Assurance Co. Ltd. (the company). She had three minor children. She applied to the company for employment on compassionate grounds. On medical examination she was found HIV positive and the company’s doctor opined that her HIV positive status made her medically unfit. Thereafter, the company sought an expert opinion, who on the other hand opined that G was medically fit to join the company and could perform her daily routine work. Her application however was rejected

G approached the Bombay High Court which directed the Company to appoint G on compassionate grounds as a Class IV employee on temporary basis. The company was given liberty to seek further medical opinion about G. The Committee, so appointed, also recommended G for employment. The company was directed to appoint G on compassionate grounds to the post to which she was appointed for temporary period or another suitable post and give her all consequential benefits.

The Court held that a person who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive. The Court further held that a person’s HIV status cannot be a ground for rejection for employment as it would be discriminatory and would violate of the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution.Read the full judgment HERE.

X v. The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82

X, a Reserve Police Constable, had applied for the post of Sub-Inspector of Police (Civil). Though he qualified both the physical and written tests and was provisionally selected as Sub-Inspector of Police, he was denied appointment on the ground that he had tested HIV positive. The Police Department relied on Order 70(3) of the A.P. Revised Police Manual which prohibited the appointment of, otherwise eligible, HIV positive candidates as Sub-Inspector of Police.

On being denied appointment, X first approached the Andhra Pradesh Administrative Tribunal which held that he was not entitled to any relief on the ground that the A.P. Revised Police Manual permitted the state to not employ persons living with HIV.  Against the order of the Tribunal, a writ petition in the Andhra Pradesh High Court was filed challenging Order 70(3) of the A.P. Revised Police Manual, arguing that denial of employment to a person only on the ground of being HIV positive infringes their right to life and livelihood.

The High Court struck down Order 70 (3) and relying on MX v ZY (AIR 1997 Bom 406) held that a person, who was fit, otherwise qualified and posed no substantial risk to others, cannot be denied employment in a public sector entity. Read the full judgment HERE.

The matter was appealed in the Supreme Court, but was dismissed.

RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal

In 1999, RR had applied for the post of police constable. He appeared for the interview and was provisionally selected. He was compelled to undergo a physical fitness test where he was found to be living with HIV and his appointment was cancelled due to his HIV status. RR approached the Karnataka Administrative Tribunal, challending a circular of the police that disqualifying applicants testing HIV positive from being inducted into the Karnataka Police force on the ground that it violated of Articles 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life).

The Tribunal relied upon MX v ZY AIR 1997 Bom 406 and Mr X v Hospital Z (Right to marry) 2002, SCCL.COM 701 and declared that a person, who was fit, otherwise qualified and posed no substantial risk to others, couldn’t be denied employment in a public sector entity. It further declared the circular to be unconstitutional under Articles 14 and 16 of the Constitution and directed the Government to ensure that no denial of employment on the grounds of a person’s HIV occur in the future. It further directed the Respondent-State to provide employment to the applicant as Police Constable (Civil) from the date he was entitled to. Read the full judgment HERE.

S v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999]

S (the petitioner) was a widow. Her husband was a Head Constable working with CISF. Her husband, the only earning member of the family, had died of HIV/AIDS related illness. S applied for compassionate employment to the CISF which was rejected without any reason and she had to vacate the residential quarters allotted to her husband while in service. S was in the asymptomatic stage and her immune system was good. She also had to incur additional expenses for medical treatment for her daughter and herself, both of whom were HIV+. The Respondents claimed that no vacancy existed.

S approached the Bombay High Court on being denied compassionate employment on the ground that the act of the CISF amounted to discrimination on the basis of her HIV status. The Court held that there should be no delay in appointment in all claims of compassionate employment. If there exists no suitable post, a supernumerary post must be created. The court directed the respondents to create a supernumerary post for the petitioner within 8 weeks, and consider her case for grant of service quarters on priority basis in accordance with the rules. Read the full judgment HERE.

A v Union of India [Unreported In the High Court at Bombay(28 November 2000),WP No. 1623 of 2000

The Petitioner (A) joined the Indian Navy and was posted in the Submarine branch. He was deputed in a crew to bring a submarine from Russia in 1997. At that time he had to undergo medical examination, wherein he tested HIV positive. A was placed in a low medical category and was continued in service, so as to enable him to complete 15 years of service, which will entitle him to full pensionary and other benefits.

Later, recommendations and requests from his Commanding Officer and the Staff Officer (Personnel) that A for reengagement for a further period of three years, the higher authorities in the Navy informed the Petitioner that his case was not recommended as he was HIV Positive. The Petitioner approached the Bombay High Court, arguing that the Respondents letter and Naval Order 26/93 violated Article 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life) of the Constitution.

Holding that no person had a right to be re-engaged, the High Court did not find the letter and Navy order to be in violation of Article 14 and 21 and dismissed the Petition. Later on a Review Petition  was filed on the ground that the Hon’ble High Court had not expressed any opinion on whether the Petitioner may be given an onshore duty, instead of duty in the submarine. The High Court held that this matter had to be considered by the authorities, if such a request is made by the Petitioner. It was open to the Petitioner to make an appropriate representation to the authorities concerned. Read the full judgment HERE.

CSS v. State Of Gujarat (2001) [Unreported Special Civil Application No. 11766 of 2000 (Gujarat High Court) (17 February 2001)

CSS was selected for the post of unarmed police constable in the Gujarat State Police force. He appeared for the medical fitness test. The Civil Surgeon classified CSS as “not medically fit” as he was HIV-positive without conducting any further medical examination. After the Civil Surgeon communicated the letter of fitness to the police force, CSS’s name was deleted from the list of selected persons. Further, CSS also alleged that other HIV-positive candidates, whose parents were serving in the police force, were appointed. This allegation was not controverted by the Respondent.

The Court, following MX v ZY (AIR 1997 Bom 406), held that an HIV-positive person who is otherwise medically fit shall not be denied opportunity of employment solely on the ground of his HIV-positive status. Further, the deletion of CSS’s name in light of the specific instances of appointment of two other HIV-positive constables, which were not controverted by the Respondent, violates Articles 14 (right to equality) and 16 (right to non-discrimination in government employment) of the Constitution.

The Court therefore directed the Respondent to restore CSS to the list of selected persons and send him for further medical examination. The Respondent was further directed not to deny opportunity of employment to CSS solely on the ground of his HIV-positive status, if he is otherwise medically fit. Read the full judgment HERE.

Quacks

India Network of Positive People v T.A. Majeed & Ors. (Order of the Supreme Court in SLP (Civil) No(s). 5527/2004 dated 03/01/2007)

In 1993 the Drug Controller of Kerala issued a licence to one T.A. Majeed to manufacture ‘Immuno QR’ powder – an ayurvedic medicine claiming to increase the resistance of persons for certain ailments, like night sweats, fever, cough and skin problems. Contrary to the conditions of the licence, Majeed started selling Immuno QR as a “cure” for AIDS. Consequently, in September 1997 the Drug Controller cancelled Majeed’s licence. Majeed challenged this order before the Kerala High Court which stayed the Drug Controller’s order; which meant that Majeed could continue manufacturing and selling the drug till the final disposal of the case and as a result also as a “cure” for HIV/AIDS.

Between 2000 and 2001, petitions were filed in the Bombay and Kerala High Courts by the Maharashtra Network of Positive People (MNP+) and the Peoples Union for Civil Liberties (PUCL) respectively to prevent Majeed and others from advertising any cure for HIV/AIDS. Both Courts restrained Majeed from advertising Immuno QR as a cure for AIDS.

However, Majeed was allowed under a previous order of the Kerala High Court to continue the manufacture and sale of Immuno QR. It was in this case, originally filed by Majeed to challenge the Drug Controller’s order, that the Indian Network for People living with HIV/AIDS (INP+) filed an intervention application.

In December 2001, the Kerala High Court restrained Majeed from manufacturing any drug for which a licence was required. In response, Majeed filed a Special Leave Petition (SLP) in the Supreme Court, which sent the matter back to the Kerala High Court directing Majeed not to manufacture Immuno QR.

When the matter was taken up by the Kerala High Court in August 2003, it was informed by the government pleader that a committee consisting of experts in the field of ayurvedic medicine had been set up but had failed to meet. The government asked for three months. However, the High Court allowed Majeed to manufacture and sell Immuno-QR as long as he did not advertise it as a cure for AIDS until the committee gave its report. The High Court further directed the government to clinically test the drug and submit its report to the Court. Effectively Majeed continued to manufacture and sell the drug.

INP+ then filed an SLP in the Supreme Court against the order of the Kerala High Court.  On the 3rd of January 2007, the SLP filed by INP+ came up for hearing before the Supreme Court, the Court:

1. Set aside the order of the Kerala High Court which had suspended the Drug Controller’s order of cancellation of the drug and substituted that order with its earlier order that directed Majeed not to manufacture Immuno QR till the final disposal of the case.
2. Held that it was not a valid ground to stay the order of the Drug Controller that the committee had not been able to examine the drug and file its report.
3. Directed the Kerala High Court to expedite the hearings and dispose of the Petitions pending before the court preferably within three months.
4. Restrained Majeed from manufacturing and selling Immuno QR till the final disposal of the cases pending in the Kerala High Court.

Read the full judgment HERE.

Blood Safety

P v. Union of India (2001) — Kolkata High Court (Negligence in blood transfusion)

P, a pregnant lady was admitted for delivery of her child at a hospital under the administrative control of the Indian Navy. After delivery P required blood transfusion. A sailor donated blood to hospital, which did not come from the blood bank of the hospital as required under the provisions of the Drugs & Cosmetics Act. The sailor’s blood was not tested for HIV at the time of donation. He was later found to be HIV+. P also became HIV+ which was clearly on account of the negligent transfusion of blood to her.

The Court felt that since the hospital was under administrative control of the Indian Navy, it had a duty to compensate P. Pursuant to correspondence between the parties Indian Navy made an offer of compensation which included, a Government job at Kolkata or the place where she desired, accommodation on her appointment on the usual terms and conditions, a sum of Rs. 10 lakhs from the date of filing of the writ petition @ 18% interest and medical treatment at the cost of the Government. P agreed to the offer and the Court passed the judgement in terms of the compromise arrived at by the parties. Read the full judgment HERE.

M. Chinnaiyan v Sri Gokulam Hospital & Queen Mary’s Clinical Laboratory (National Consumer Dispute Redressal Commission, 2006)

 The Appellant’s wife underwent a hysterectomy operation, at the 1st Respondent hospital in 1990 where she was transfused 2 units of blood post her operation which was procured from the 2nd Respondent laboratory in 1990. In mid-1994 the Appellant’s wife developed recurrent loose motions, weight loss, respiratory infection and difficulty in swallowing etc. On being tested she was found to be HIV+ and showed symptoms of AIDS. In July 1995, she developed left-sided hemiparesis, oral candidiasis and TB. Later she was diagnosed with glioma of the brain and died in August 1995.

Her husband filed a complaint before the State Consumer Redressal Forum against the hospital and pathology laboratory for deficiency of services under the Consumer Protection Act. His Complaint was rejected. Aggrieved by this order he appealed to the National Consumer Dispute Redressal Commission (National Commission). The National Commission held:

The 1st Respondent gave blood transfusion without obtaining the consent of the patient and that the concerned doctor negligently transfused blood, as he did not inform the Petitioner’s wife about the benefits, risks or alternatives of blood transfusion, which amounted to deficiency of service under the Consumer Protection Act.

Furthermore, the Drugs and Cosmetics Rules, 1945, requires that every licensee of a blood bank get samples of every blood unit tested for freedom from HIV antibodies, which the 2nd Respondent had failed to do.

As compensation, the Commission awarded Rs. 4,00,000 (Rs. 4 lakh) with interest at the rate of 6% p.a. from the date of filing the complaint, which was to be paid jointly and severally by the Respondents and Rs 10,000 as costs.

An appeal by one of the Respondents to the Supreme Court was dismissed.