Lucy D’Souza v. State of Goa

AIR 1990 Bom 355
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The Goa, Daman and Diu Public Health Act, 1985 (the Act) under Section 53(1)(vii) (the Section) gave the State Government the power to “isolate persons found to be positive for Acquired Immuno Deficiency Syndrome (AIDS), for such period and on such conditions as may be considered necessary.” The Section contained other provisions, including mandatory isolation of people found to be positive for AIDS. The Act made it “mandatory not to refuse collection of blood for investigation of AIDS or any other communicable infectious disease” if the Health Officer had reason to suspect that a person had a communicable disease. Under the amendment of 1989, the requirement of mandatory isolation was modified to make isolation discretionary and powers of the Health Officer now lay with the State Government.

The Petitioner’s son, Dominic D’Souza, was isolated before the 1989 amendment but was later released. The Petitioner contended that the Section was unreasonable and therefore violated fundamental rights guaranteed by the Indian Constitution under Article 14 (right to equality), Article 19(1)(d) (right to move freely throughout the territory of India) and Article 21 (right to life).

On the question of whether the Section was based on relevant and accurate scientific evidence, the Court held that there was scientific evidence to support the preventive measure of isolation. The Court relied on certain publications including the National Institute of Communicable Diseases (Government of India) publication of 1969 to reach this conclusion. However, the Court acknowledged that the current science on the issue could change and “much has remained to be said” about AIDS.

As to whether the object sought to be achieved by isolation was being negated, the Court held that such questions lay within the province of policy and therefore a decision for the legislature. The Court held that the legislature was under an obligation to improve public health (Article 47) and possessed the requisite capacity to do so and was thus best suited to decide what preventive measures should be used. The Court noted, however, that it was trite that the Legislature always acted in good faith and in furtherance of public good and therefore held that the method adopted by the legislature was indeed in furtherance of prevention of spread of HIV.

Regarding the violation of the right to liberty caused by isolation, the Court held that in case of a conflict between individual liberty and public health the “former must yield to the latter.” The Court held that there “cannot be any fundamental right against any act aimed at doing some public good.” The public good in the instant case, according to the Court, was to prevent the spread of HIV. The Court invoked the State’s obligation under Article 47 of the Constitution to improve public health. It held that where there was a high risk to public health “erring on safer side may be permissible.”

The Court also considered whether discretionary power vested in an authority could be misused. It rejected this contention and declared that the State Government had evolved guidelines to ensure that the power was not prone to misuse. It further held that since administrative orders were liable to be struck down if used arbitrarily, the discretion was not untrammeled.

As to whether there was a violation of the right to be heard, the Court held that principles of natural justice, such as the right to be heard, were not absolute. Placing reliance on Olga Tellis v. Bombay Municipal Corporation, (1986 AIR 180), the Court held that at times principles of natural justice could be completely dispensed with or moulded according to the situation. It however granted post decisional hearing.

“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 rights have to be balanced against the public interest. In fact liberty of an individual and public health are not opposed to each other but are well in accord. Even if there is a conflict between the right of an individual and public interest, the former must yield to the latter. That apart, isolation is not merely in the interest of the society. In a given case, it may also be in the interest of an AIDS patient, because he may become desperate and lose all hopes of survival and therefore, has to be saved against himself.” AIR 1990 Bom 355, para. 8.

“Isolation can sometimes be counterproductive, since the patient may go underground or may not disclose the ailment and science and not discrimination is that ideal way of dealing with the situation, but “ideal” is not always “practical” in life. When such a high risk to the public health exists, erring on safer side may be permissible.” AIR 1990 Bom 355, para. 10.

“Requirement of prior notice or hearing can frustrate the object of isolation and may not be even practicable.” AIR 1990 Bom 355, para. 18.

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