PROCAARE: HIV-RELATED DISCRIMINATION--INDIA

[The Lawyers Collective <lawyers@bom2.vsnl.net.in>]

It is now well established by international conventions that the
protection and promotion of fundamental rights and dignity of people
living with HIV/AIDS is integral for HIV/AIDS prevention and control
programmes. People living with HIV/AIDS should not be subject to any form
of discrimination.  Their basic rights to liberty, privacy, equal
protection and due process of law must always be respected. Due to the
very nature of HIV infection, i.e., the modes of transmission, people
living with HIV/AIDS face extreme discrimination on multifarious fronts -
social, legal, economic, medical. As a result of the enormous social
stigma associated with HIV/AIDS, the rights of people living with HIV/AIDS
are often violated and they must go to court to defend their rights.

Mumbai, India... 1993, MX,  a casual employee of a public corporation ZY,
was impanelled on the panel of employees to be absorbed into the cadre of
permanent employees subject to her/his medical fitness. A medical expert
certified MX medically fit for the job. However s/he tested positive for
HIV. Subsequently MX was not confirmed as a permanent employee and s/he
was terminated from casual employment. Post facto, the public corporation
ZY, issued a circular requiring mandatory HIV testing as part of the pre
and post recruitment policy. The Lawyers Collective, a public interest
group of lawyers, filed a writ petition on the behalf of MX challenging
the constitutional validity of this policy and praying for her/his
reinstatement to employment and the payment of back wages.

April 3, 1997 Justice Tipnis and Justice Trivedi of the High Court of
Bombay delivered a landmark judgment reinstating a HIV positive person to
his employment with a public corporation along with the payment of back
wages. Council for the Respondent Corporation, Dr. Chandrachud argued that
since a person who is HIV positive is almost certain to suffer progressive
deterioration of health during the period of employment, the employer is
justified  in not employing a such a person and the Court should not
interfere with the policy decision of the Respondent Corporation not to
employ a HIV positive person. Rather myopically, Dr. Chandrachud further
argued that hiring a HIV positive person would impose certain financial
and administrative consequences which the employer ought not to bear.
Recognising the  significant economic impact of HIV/AIDS in India and the
positive duty of the State, Justice Tipnis and Justice Trivedi
unequivocally stated that,  if it means putting certain economic burden on
the State or the public corporations such as the Respondent Corporation,
or the society, they must bear the same in the larger public interest.

Relying on the established international standards on HIV/AIDS in the
workplace, Anand Grover, council for MX , argued that mere HIV
seropositivity does not indicate illness or disability and  HIV
seropositivity does not pose a cognisable risk to others at the workplace.
Mr. Grover emphatically stated that in this case the policy framed by the
public Corporation which denies employment to the HIV positive person
merely on the ground of her/his HIV status irrespective of the fact that
s/he is medically fit to perform her/his job and that s/he does not pose
any significant risk to others at the workplace is clearly arbitrary and
unreasonable and infringes on the fundamental rights guaranteed to all
persons in Articles 14 and 21 of the Constitution of India. It is an
established position in law that  under Article 21 of the Constitution of
India a person has the right to livelihood which includes the right to
work. Further the deprivation of the right to livelihood must satisfy the
rigours of Article 14 of  the Constitution.  Article 14 requires that
State action must:

 be based on a intelligible and reasonable differentia, and;
 the intelligible differentia must have a rational nexus to the object
sought to be achieved and finally;
 must be otherwise fair just and reasonable.

There is no dispute that Articles 14 and 21 come into play both at the
time of initial recruitment (pre-recruitment stage) and during the course
of employment (post-recruitment stage).  It is now well settled that the
purpose of the physical or medical fitness for the job is not "general
fitness" but must relate to the actual job that is to be performed by the
employee. It must necessarily imply the following:

 The person must be able to carry out the job that is assigned to her/him.
Conversely if there is a disability reported, that disability should not
affect the persons ability to carry out the job.
 The person must not a pose a substantial risk to others in the workforce.

Only then would the rigours of Article 14 (rational nexus and
non-arbitrariness) be satisfied.

It would therefore depend  on the person's fitness on a case to case
basis.  Lumping all HIV seropositive persons together as being unfit,
which is what the impugned circulars do, apart from being arbitrary and
irrational, is discriminatory as it has no rational nexus to the object
sought to be achieved and therefore violative of Article 14. Moreover, on
account of the window period in antibody testing, the HIV test does
achieve the object sought to be achieved, as it does not ensure that the
person tested is free from HIV. The person testing negative may in fact be
positive.

On the basis of these arguments the Court reiterated that it was not
constitutionally permissible for the State to condemn a HIV positive
person to certain economic death before s/he meets her/his actual death
due to the ailment. Along with reinstatement to employment and the payment
of back wages, the Court directed that MX be considered for absorption
into the permanent cadre of employees on the basis of her/his medical
fitness; the medical fitness to be decided on the basis of the usual
medical tests viz. X-Ray Chest, VDRL, Australia Antigen and vision test
notably not including the test for HIV.  

In reality, people living with HIV/AIDS are often prevented from
litigating in open court for fear that their HIV status will become public
knowledge, thus  disabling them from vindicating their rights. Suppression
of identity, whereby a person can litigate under a pseudonym, is
internationally established as a beneficent legal device in the area of
family law. Though its use in HIV/AIDS related cases is disputed in many
countries like Australia, through this case suppression of identity has
now been established as a positive instrument in HIV/AIDS related cases in
India. Early on in the case,  Lawyers Collective was able to obtain a
crucial order, the first of its kind in India, for the suppression of
identity, whereby MX was able to litigate under a pseudonym, thus
protecting her/his right to privacy and promoting her/his right to equal
protection and due process of law. In the context of HIV/AIDS, suppression
of identity enables and empowers HIV positive persons to assert their
rights without having to face the unnecessary  and traumatic social
stigmatisation associated with HIV/AIDS. Importantly, the legal device of
suppression of identity has now been established as a positive litigation
strategy in HIV/AIDS related cases in India. 

Dr. Mandeep Dhaliwal
Lawyers Collective
HIV/AIDS Unit













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