The Gauhati High Court has disposed a PIL filed seeking a direction to State respondents to appoint an Ombudsman as required under Section 23 of the Human Immuno-Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017.
The PIL has been filed by Network of Nagaland Drugs and AIDS Organisation and NGO Network of Naga People living with HIV. The bench observed, “The Declaration of Commitment on Human Immuno Deficiency (2001)” of the General Assembly of the United Nations, the Government of India enacted The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 an Act to provide for the prevention and control of the spread of Human Immuno deficiency Virus and Acquired Immuno Deficiency Syndrome and for the protection of human rights of person affected by the said virus and syndrome and for matters connected there with or incidental thereto.”
The advocate appearing for the respondent apprised the Court that Government of Nagaland had designated one Ajit Kumar Ranjan, IAS, Joint Secretary, Health & Family Welfare Department, Government of Nagaland as Ombudsman as required under Section 23 of the Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, vide notification dated 08.09.2021.
Section 23 of the Act provides that every State Government shall appoint one or more Ombudsman to ensure strict compliance of the provisions of the Act by all stakeholders and under section-49 of the same the State Governments are empowered to make rules for appointment of Ombudsman.
Accordingly the State of Nagaland also made a rule namely, “The Nagaland Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Ombudsman and Legal Proceeding) Rules, 2019”. And, Rule-3 of the same provides that the State Government shall appoint one Ombudsman for the State of Nagaland within 180 days from the date of commencement of the Act. But since no appointment of Ombudsman has been made so far.
While considering the notification the Kohima Bench comprising Justice Songkhupchung Serto and Justice Kakheto Sema found that the notification is not as per the provisions of Nagaland Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Ombudsman and Legal Proceeding) Rule, 2019 framed and notified by the State Government.
Rule-4 of the said Rule, 2019 provides as follows;
“4. Qualification and experience of Ombudsman Any person who is a retired district or sessions judge, or who has minimum ten years working experience or extensive knowledge in matters relating to public health or health delivery systems, or is a qualified healthcare provider who is a physician with a minimum of ten years work experience, or is a person working in an non-governmental organization with similar experience and knowledge.
Provided that where a person other than a retired district or session’s judge is appointed as an Ombudsman, the State Government shall provide him with assistance from the Department of Justice and Law on legal issues that may arise in the course of his work, if so requested.”
Going by the provision of the rule, the Court is of the view that the Joint Secretary, Health & Family Welfare Department could not have been designated as Ombudsman because of the obvious reason that he does not meet the requirements given therein.
The Court noted, “There is no other provision in the Rule of 2019 or in the Act providing the qualification and experience of Ombudsman except the one given herein above. Therefore, the State Government has no choice but to follow the same while appointing/designating a person as an Ombudsman under the Act of 2017.”
“This PIL is disposed of with a direction that the State Government should appoint or designate a person qualified to be appointed or designated as per the rule i.e. Rule-4 of the Nagaland Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Ombudsman and Legal Proceeding) Rules, 2019 within a period of 45 days from today,” the order reads.