Subodh Sarma and Anr. v. State of Assam and Ors

Jahnabi Goswami Sharma was the wife of an “AIDS patient.” Her “miserable plight” prompted the Petitioner, Subodh Sharma, an independent social activist, to file a public interest litigation on behalf of people living with HIV and members of their family in the Gauhati High Court under Article 226 of the Constitution of India (original writ jurisdiction of High Courts).

The Petitioner prayed the Court to direct the State of Assam, the Respondent, to effectively and efficiently use funds allocated for projects related to the prevention of HIV, to properly implement existing HIV strategies and policies, to create a monitoring committee, and to appoint qualified professionals to run the programs. The Petitioner also contended that it was not necessary to isolate people living with HIV. The Respondent State argued that it had already taken a number of steps to prevent the spread of HIV.

The Court held that the State of Assam had not “geared up its machinery to the extent necessary” to implement HIV prevention and treatment schemes. The Court noted that people living with HIV/AIDS had a right to access "treatment with dignity" in State run hospitals. It further held that there was a lack of transparency in conducting existing programs. The Court noted that rural areas were not equipped to conduct tests for HIV and that the second phase of the program had not been given proper attention by the authorities.

Regarding funding, the Court held that State authorities were often not releasing funds received from the Government of India for fight the against HIV/AIDS, and in some instances funds were not used for their intended purpose. Instead, funds were being deposited under a different head of accounts.

The Court issued specific directions to the Respondent to properly implement guidelines, strategies and policies formulated by the National AIDS Control Organization. Amongst other things, the Court directed the Respondent: not to divert funds and to undertake inquiries regarding any funding irregularities; to close all unlicensed blood banks and establish a State Transfusion Council in order to monitor blood banks and ensure WHO prescribed tests were performed prior to all blood transfusions; and to ensure  HIV/AIDS counseling centers were available in State hospitals and that people living with HIV were not refused treatment.

“State of Assam has not been able to gear up its machineries to the extent necessary. The awareness programmes the way it is being carried out does not seem to have any deterrent effect…even the physicians are scared to treat the AIDS patients out of fear of infection. A few cases of HIV positive have not been dealt with properly and appropriate treatment does not seem to have been given. The patients have been isolated and a few of them have been transferred to Infectious Disease Hospital…where the NGOs and missionaries were not allotted entry. This is indicative of lack of transparency in the matter.” Para. 18.