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Despite the passage of a quarter-century since the AIDS/HIV infection was diagnosed, the stigma that surrounds it has not subsided. The number of persons who have become victims of this affliction has swelled to such staggering sums, that its enormous proportions have caused a global effort to be made to combat it.
The difficulty States, communities and individuals face in confronting the HIV epidemic lies in the fundamental but difficult issues it raises; issues of sex, sexuality, diversity, 'nonconformist' behaviour, inequality of all kinds in all spheres, issues that we as a society have been uncomfortable dealing with and discussing for a long time. This is an epidemic that knows no borders of geography, class, caste, gender and sexuality.
The worse kind of discrimination face by Persons Living With HIV/AIDS (PLWHA) has been in the area of employment. Discrimination can be broadly defined as the treatment of one person less favourably than the other in the same or comparable circumstances on the basis of a characteristic that is not immediately relevant to the situation. There is no concrete legal remedy available to PLWHA in case their right to employment is violated in the private sphere.
The Indian Scenario
India's socio-economic status, traditional social ills, cultural myths on sex and sexuality and a huge population of marginalised people make it extremely vulnerable to the HIV/AIDS epidemic. In fact, the epidemic has become one of the most serious challenges faced by the country since Independence.
Since the first case was reported in 1986 in Chennai, the capital of the South Indian State of Tamil Nadu, HIV has spread rapidly from urban to rural areas and from high-risk groups to the general population. In a country of over one billion people living with HIV/AIDS (NACO, 2004). This is less than one percent of the country's population. Still, India has the second highest number of people living with HIV/AIDS in the world after South Africa. India accounts for almost 10 per cent of the 40 million people living with HIV/AIDS globally and over 60% of the 7.4 million Persons Living With HIV/AIDS (PLWHA) in the Asia and Pacific region. Given the large population base, a rise of just a few percentage points in the HIV prevalence rates can push up the number of those living with HIV/AIDS to several millions.
The second decade of the epidemic is marked by visible heterogeneity. Tracking the epidemic and implementing effective programs is compounded by the fact that there is no one epidemic in India. Rather, there are several localised sub-epidemics reflecting the diversity in socio-cultural patterns and multiple vulnerabilities present in the country.
Though the country overall has a low prevalence rate, it has reported concentrated epidemics among vulnerable population such as sex workers. There are already localised epidemics within vulnerable groups in, and the virus has been found to spread among the general population in six states in India. young people in India are among those most vulnerable to HIV. Over 35% of all reported HIV/AIDS cases in India occur among young people in the age group of 15 to 24 years.
1986-1992, Denial of the Threat of HIV: This was a period that saw the beginning of a largely research-based programme. Surveillance activities were launched in 55 cities in three states. The programme activities were left to the states without strong central guidance.
1992-97, Backed by World Bank funding and strong WHO GPA (Global Programme on AIDS) support, this phase saw the creation of the National AIDS Control Organisation (NACO). Achievements included higher levels of awareness creation, establishment of state level structures for programme implementation and improvements in blood safety. The launch of successful individual projects such as the innovative intervention in Sonagachi amongst commercial sex workers and breakthroughs in reaching out to college youth through "University Talks AIDS (UTA)" were amongst its achievements. The scope of these efforts remained however on a limited scale. An emphasis on blood-safety and strengthening of infrastructure yielded some gains, but the approach remained primarily medical with HIV seen largely as a health issue.
1998 onwards, Building on the experience of the first phase, there was a two-fold drive to focus on coverage amongst high risk groups like sex workers, truck drivers and injecting drug users and to make the programme multi-sectoral. It has resulted in a strongly decentralized programme with the responsibility of implementation vested with the states. Flexible State AIDS Societies were formed with stronger mechanisms for state level programme management. An innovative approach for providing technical support to state programmes was launched by establishing a network of 12 Technical Resource Groups (TRGs), each covering different thematic areas of the epidemic. Each of them is mandated to provide technical support to states.
International Human Rights InstrumentsInternational human rights law relating to health and HIV/AIDS includes Article 25(1) of the Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR), and its partner covenant, the International Covenant on Civil and Political Rights (ICCPR).
1. ICCPR & ICESCR
The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights are two covenants that protects a range of economic, social, and cultural rights without discrimination based on creed, political affiliation, gender, or race. Nondiscrimination is a basic tenet of the human rights movement, enshrined in these two covenants, and countless other human rights treaties and declarations. This principle of nondiscrimination has begun to be applied at the national level with regard to individuals infected with HIV. Some nations have adopted legislation aimed at protecting people with HIV/AIDS from discrimination. This action is essential. The stigma associated with HIV/AIDS deprives people of their dignity and communities of productive members. Equally as detrimental, it provides an incentive to avoid testing, especially in circumstances when treatment options are limited or nonexistent. With legal protection, people will feel secure in their rights and dignity—and be more willing to seek testing and treatment.
2. UDHR- Universal Declaration of Human Rights, resolution adopted unanimously in December 1948 by the General Assembly of the United Nations. The objective of the 30-Article declaration is to promote and encourage respect for human rights and fundamental freedoms. The declaration proclaims the personal, civil, political, economic, social, and cultural rights of humans, which are limited only by recognition for the rights and freedoms of others and the requirements of morality, public order, and general welfare.
The principle of non-discrimination is fundamental to human rights law and is of particular significance to both displaced people and those living with HIV/AIDS who frequently suffer from high levels of stigma and discrimination.
This is reflected in Article 1 of the UDHR, the Preamble to the UN Charter, and Article 2(2) which states that these rights apply without discrimination of any kind as to ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Certain provisions relating to right to work of a person suffering from HIV/AIDS as mentioned in UDHR are as follows:
i) Right to life, liberty and security of person
ii) No person must be subject to forced testing and/or treatment or otherwise cruel or degrading treatment .
iii) Everyone, including persons living with a positive 'HIV' diagnosis has the right to work and participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits .
iv) All, including persons living with a positive 'HIV' diagnosis, are equal before the law and are entitled without any discrimination to equal protection by the law .
v) People living with a positive 'HIV' diagnosis have furthermore the rights as outlined in Art. 25(1) UDHR especially the right to adequate standard of living, assistance, medical care and necessary social services, and the right to security in the event of unemployment according to their needs and their treatment choices.
3. UNAIDS- The UNAIDS Guidelines, 1996 recognize the existence of vulnerable populations in developing countries and recommend that appropriate safeguards be incorporated in research protocols. The Guidelines further address multi-sectoral responsibilities and accountability, including improving the roles of the Government and Private sector. In addition they stress the duty of the states to engage in law reform and identify legal obstacles so as to form an effective strategy of HIV/AIDS prevention and care.
Regarding anti-discrimination, States should enact or strengthen anti-discrimination and other protective laws that protect people living with HIV/AIDS from discrimination in both the public and private sectors, ensure privacy, confidentiality and ethics in research involving human subjects, emphasis education and conciliation and provide for speedy and effective administrative and civil remedies.
National Human Rights Instruments
1. The Constitution Of IndiaArticle 14 of the Constitution of India guarantees equality to all persons within the territory of India. Equality implies an essential sameness or likeness. On the basis of this sameness, people should possess the same privileges and should enjoy equal rights, along with the accompanying responsibilities. In principle, discrimination is antithetical to equality. The guiding principle of Art 14 is that all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Article 16 prohibits discrimination in public employment on grounds of religion, caste, creed, sex, colour etc.
2. National Human Rights CommissionOne of the main reasons for the establishment of NHRC was because India is a party to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The human rights embodied in the aforesaid Covenants stand substantially protected by the Constitution.
The Commission has taken up a number of individual cases relating to discrimination faced by persons affected or infected by HIV/AIDS with regard to employment, access to medical treatment facilities and education. Further, the Commission has mounted a multi-media campaign to disseminate information on the Human rights and HIV/AIDS to various target groups.
3. National Aids Control OrganisationThe national response to AIDS epidemic was seen in the beginning itself when the first case was reported in India in 1986. The Government constituted a high-power committee in 1986 under the Ministry of Health and Family Welfare. Subsequently, a National AIDS Control Programme was launched in 1987.
In India, the National AIDS Control Organisation (NACO) carries out the country's National AIDS Programme, which includes formulation of policy and implementation of prevention and control programmes. Besides NACO, the country also has a National AIDS Control Board, which is chaired by the Union Health Secretary. The Board reviews NACO policies, expedites sanctions, approve procurement and undertake and award contracts to private agencies. The other major functions of the Board are approval of annual operational plan budget, reallocation of funds between programme components, formation of the programme managerial teams and appointment of senior programme staff.
4. The National Aids Prevention And Control Policy, 2002The NAPCP articulates the governments understanding of the HIV/AIDS epidemic. It states that for an effective response, development and human rights need to be addressed through a multi-sectoral collaboration. The NAPCP prioritises human rights protection as an objective and not merely a strategy. Other objectives include reduction of the impact of the epidemic, bringing about a zero transmission rate by 2007, bringing about an enabling socio-economic environment for prevention and control, decentralisation of the programme and working towards a horizontal integration of the HIV/AIDS response with other national programmes relating to health. The implementation of the policy is through the involvement of different departments of the government, decentralisation and collaboration with NGOs especially for the purpose of targeted interventions.
5. State Aids Control Societies:For the implementation and management of HIV/AIDS programmes in states, State AIDS Cells were created in 32 States and UTs of the country. However over a period of time, it was realised that due to many cumbersome administrative and financial procedures, there was delay in release of funds sanctioned by the Government of India. This delayed the implementation of programmes at different levels. To remove the bottlenecks at the State level, Ministry of Health and Family Welfare advised the State Governments/Union Territories to constitute a registered society under the chairmanship of the Secretary Health. The society is broad-based with members representing various ministries like Social Welfare, Education, Industry, Transport and Finance and NGOs. On an experimental basis, the Tamil Nadu State AIDS Control Society was created followed by a similar society in Pondicherry. Successful functioning of these societies led to the Government of India advising other states to follow this pattern for implementation of the National AIDS Control Programme.
6. Non Government Actors
The Lawyers Collective (HIV/AIDS Unit) an NGO in India, with the help of European Commission, has set up this unit to provide legal aid and allied services for people affected by HIV/AIDS and people working in HIV/AIDS. The Lawyers Collective is one of the most prominent Organizations that has been fighting for the rights of PLWHA and has been successful in its legal battles to enforce the same. They have also made valuable contributions in ensuring that people have access to accurate information about HIV to protect themselves.
Right To Employment Of People Living With Hiv/AidsPreface
Employment is now emerging as a focal point of debate in the HIV/AIDS context, especially since it has become clear that the large number of persons living with HIV/AIDS in India are those who are employed or of employable age. It, therefore, becomes imperative for employers and companies to evolve policies that address this issue. With Indian economic policy veering toward liberalisation in the last decade, the private sector is rapidly creating the largest employment base.
In the context of employment, PLWHAs are often denied jobs at the time of recruitment on account of their HIV status. HIV-positive employees are discriminated against by their co-workers and employers and are frequently terminated from employment altogether. Often, discrimination is subtler and HIV-positive employees are gradually demoted or are kept on the payrolls but asked not to report to the work place. One study on HIV-related discrimination in India revealed that discrimination by employers largely takes the form of denial of the HIV epidemic altogether. Hence, not only do companies terminate HIV-positive employees as a matter of course, they also regularly deny compassionate employment and other benefits such as provident fund and gratuity to survivors of deceased HIV-positive employees.
Issues Involved & Problems Faced By PLWHAThe legal and ethical issues relevant to the context of the workplace and to these interventions are unclear and untested. But some of the common issues are:
# Can an employer, for example, legitimately require HIV testing of a prospective or current employee?
#Does an employer have the right to personal information that the employee may not want to disclose?
# Does the employee have any legitimate control over the disclosure of medical results?
# The Constitution of India protects the State employees affected with HIV/AIDS but can such protection be guaranteed in the Private Sector as well?
Mandatory Testing In the Private Sector:In the private sector there is no legal restriction preventing employers from putting prospective as well as existing employees through HIV/AIDS screening as part of the assessment of fitness to work and to refuse employment if the test is positive. A refusal either to take the test or to allow the results to be given to the employer may result in the applicant/prospective employee not being offered a job and having no form of legal redress.
Fitness for the job is a major criterion and as such people living with HIV may find employment difficult to obtain. They also have little protection against dismissal. In general then, those who have developed HIV will be subject to the provisions relating to dismissal on grounds of ill health. Dismissal for reasons of sickness will depend on the circumstances of the case. For example, the length and regularity of absence from work, the need to replace the employee because of the position held within the organisation and the extent to which the employee's absence has a negative impact upon the business of the employer/organisation. Some protection may, however, be sought under Labour Laws relating to dismissal.
At the same time, mandatory testing is often justified by the argument that once an employee tests positive, special care and support could be provided for her/him. With respect to testing, it is stated that "HIV screening in the workplace or for purposes of employment should not be undertaken. HIV screening should not be required for employees, candidates for employment or others to enter or reside in another country".
With a view to anticipating loss of workers due to HIV/AIDS, many companies would like to know the proportion of the workforce they are likely to lose through AIDS. However, increasingly, employers are beginning to recognize the tremendous negative impact of pre-employment and on the job HIV screening. Testing the existing workforce is not only unethical, but leads to great hostility and is incompatible with effective HIV/AIDS prevention and care programmes at the workplace. Companies are beginning to find that, by abandoning testing requirements, a conducive climate can be created for workplace prevention programmes. A steadily increasing number of employers in the worst affected countries are reaching the conclusion that prevention is much more cost effective than HIV screening in the long term, and that respect for the rights of workers is a powerful tool in its own right.
Testing in the Armed Forces- Although HIV testing as a prerequisite for employment is not permissible in any other sector the policy makes an exception for armed forces, where before employment, HIV screening may be carried out? Voluntarily with pre-test and post-test counseling and the results may be kept confidential. This policy of permitting mandatory but informed testing is a contradiction in terms. A person who after pre-test counseling decides not to take the test may be eliminated as a candidate for employment.
Issue of Confidentiality:
Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an ethical code. The Hippocratic oath says, Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of about, I will not divulge, as reckoning this all such should be kept secret.
Every person has the right to privacy, which is the right to determine for themselves when, how and to what extent information about them is communicated to others. This issue of confidentiality at the workplace was dealt in the case of MX v. ZY which will be discussed in detail ahead.
Discrimination in the Private Sector
Articles 14 and 16 of the Constitution of India guarantee the right to equality and provide against discrimination in employment respectively. However, these rights are available against the state and not against private employers. As such, little can be done within the present legal regime to prevent discrimination in the private sector. An anti - discrimination legislation is required to prevent such discrimination which does not exist in India till date.
There is no specific employment law that provides protection from discrimination to people living with HIV/AIDS. Owing to a progressive judicial pronouncement by the High Court of Bombay MX v ZY employees of the public sector cannot be denied recruitment merely because of their HIV positive status if they are otherwise qualified and do not pose a substantial risk to others. Moreover they cannot be discriminated on account of their HIV positive status.
Relevant Case Laws
# MX v. ZY
The petitioner, who was a loader in a public sector company, was removed from the roster of casual labourer and his casual labour contract was cancelled, when he tested HIV positive. He filed a writ in the High Court, which held that an HIV positive person could not be denied recruitment to a job as long as he can perform his duties and as long as he does not pose a significant risk to others.
"Epidemiological studies from throughout the world have demonstrated that the human immuno deficiency virus (HIV) is transmitted only 3 ways:
# through sexual intercourse (including semen donation);
# through blood (principally blood transfusions and non-sterile injection equipment; also includes organ or tissue transplant);
# from infected mother to infant (prenatal transmission).
There is no evidence to suggest that HIV transmission involves insects, food, water, sneezing, coughing, toilets, urine, swimming pools, sweat, tears, sharing eating and drinking utensils or other items such as protective clothing or telephones. There is no evidence to suggest that HIV can be transmitted by casual person-to-person contact in any setting. In the vast majority of occupations and occupational settings, work does not involve a risk of acquiring or transmitting HIV between workers, from worker to client, or from client to worker.
"In 1990, an international meeting on the subject of AIDS and the workplace, which was co-sponsored by UNESCO, WHO, ILO, the Council of Europe and the European Communities, among others, adopted recommendations against mandatory testing in the workplace. These recommendations note that "the recognised modes of HIV transmission make it clear that no risk of infection from seropositive persons exists in the vast majority of occupational settings. HIV seropositivity does not affect an individual’s fitness to work; there is no reason to refuse work to seropositive employees who remain able to perform their job duties and any discrimination is unacceptable".
It was stated by the Counsel for the petitioner that in view of the stigma which is attached to HIV infection, the persons infected with HIV may be reluctant to approach the Court of Law wit h the fear that the disclosure of his HIV status may expose him to social ostracisation and also discrimination is every walk of life. Therefore, it was held that to protect such a petitioner from discrimination, he could be allowed to prosecute his case under a pseudonym. It further held that Medical test must pass the rigors of Article 14 and 21.
# Chhotulal Shambahi Salve v. State Of Gujarat
The petitioner in this case, was selected for the post of unarmed Police Constable and his name figured in the select list. He appeared for the medical fitness test but the Civil Surgeon, forwarded a letter dated 20th September, 1999, mentioning that the petitioner is not medically fit as he was HIV Positive. Upon receipt of this letter, the respondents deleted the name of the petitioner from the select list and did not consider his case for appointment.
The action of the respondents in deleting the name of the petitioner from the select list is illegal and violative of Articles 14 and 16 of the Constitution. Besides the fact that the petitioner’s blood tested as HIV positive, he was perfectly fit to carry on the duties of an unarmed police constable. The case of MX v. ZY was relied on in giving a judgment for this case. The Apex court had mentioned in that case that a person suffering from AIDS couldn’t be denied Government job.
It was decided that the action of the respondents in deleting the name of the petitioner from the select list is quashed and that the respondents are directed to restore the petitioner in the select list.
# Mr. Badan Singh v. Union of India & Anr
The Petitioner was enrolled in the Border Security Force on June 1990. In March 1997 it was discovered by the Respondents that the Petitioner was suffering from HIV Infection. He appeared before a Medical Board on April 1998 and was considered unfit for further service. A Review Medical Board was also convened on his request September 1998 which also arrived at the conclusion that the Petitioner was unfit for further service.
The BSF Authorities, who had carried out the investigations against the Petitioner, have never made any allegation of attributing any blame on the Petitioner for alleged HIV Infection suffered by him. There appears to be an oblique accusation in the writ petition that the HIV Infection has been contracted by the Petitioner as a consequence or any of his personal acts. They were of the belief that HIV is the consequence of an immoral act.
It had been prayed, in the writ petition that (i) the petitioner be reinstated with continuity of service, or (ii) that he be provided alternative employment to enable him to earn his livelihood and pension on attaining the age of superannuation and or (iii) alternatively that he be granted all pensionary benefits as admissible to persons with 100% medical disability attributable to service.
The Respondent, Border Security Force, has strenuously resisted the petition on various grounds. Accusations were also made that the petitioner had contracted HIV so as to earn a disability pension.
Unfortunately there still remains a severe social stigma against persons suffering from HIV. It is difficult to conceive of a situation where any person would consciously or wittingly run the risk of contracting AIDS. It is ludicrous to contend that anyone would. Contract HIV so as to earn a disability pension.
It was decided that the Respondents are directed to pay to the Petitioner invalid pension together with interest at the rate of six per cent (6%) per annum.
# X v. Bank of India
In June 1987 the petitioner had joined Golden Enterprise as a sweeper. He was given sweeping work on contract basis at the State Bank of India. The petitioner satisfactorily performed his duties for more than 9 years. In or about 1997 the State Bank of India considered the case of the petitioner for recruitment for part-time hamal cum sweeper. The petitioner remained present for the interview along with the concerned documents. His application was accepted and he was asked to undergo medical investigations. The petitioner carried out the required medical investigation such as Chest P.A. The petitioner also gave blood sample for ELISA- Enzyme Linked Immuno Sorbant Assay- test at the J.J. Hospital and was diagnosed that he is HIV asymptomatic. he was informed by his superior orally that his application for the said job has been rejected on medical ground and he was not required to come for his work from that day onwards. He was also told that he should report only when he gets clear reports i.e. he is tested HIV negative.
Thereafter on 21.10.1997 the petitioner got tested which showed he was positive for HIV 1 and 2 antibodies. The petitioner was also diagnosed asymptomatic by the report dated 24.10.1997. According to the petitioner in November 1997 he was informed by the officials orally that the bank does not allow recruitment of HIV positive at the pre-recruitment stage and therefore he would not be made permanent sweeper. Thereafter the petitioner had been periodically approaching the respondent to know about his case of recruitment. But he was never informed by the respondent that he had to undergo further medical examination so that he can obtain a medical fitness certificate which is pre-requisite for recruitment. The petitioner was never appraised of the real situation. In the meanwhile from 1998 the petitioner started working as a casual labourer on daily wages from time to time. His financial condition forced him to work as casual labourer. The petitioner had realized that his rights had been violated but he was unaware of the course of action to be taken. The petitioner sent letter dated 22.2.2002 to the respondent calling upon the respondent to recruit him as permanent hamal cum sweeper with effect from April 1997. The respondent by the said notice, was also called upon to provide the petitioner with the copy of the bank rules/policies/circulars/notifications/ documents that it has referred and relied upon in rejecting the petitioner’s application for the said post. Thus in the absence of a medical fitness certificate, a mandatory requirement for appointment, the petitioner could not be given appointment in the bank. The respondent’s offer of appointment to the petitioner, in view of the above has been withdrawn and cancelled. In the circumstances the petitioner has approached this court seeking direction to absorb him as hamal cum sweeper with the respondent bank. 5.
The counsel for the Petitioner has brought to our notice the judgment of the Division Bench of this court reported in AIR 1997 Bombay 406 in the case of MX of Bombay Indian Inhabitant vs. M/s. ZY and another. In the said judgment, this court has, categorically held that HIV positive person cannot be denied employment only on the ground that the person is HIV positive, even though otherwise fit. Justice Tipnis speaking for the bench observed:
No person can be deprived of his right to livelihood except according to procedure established by law. Obviously, such procedure established by law has to be just, fair and reasonable. In other words, such procedure also must pass rigour of Art 14. The rule providing that a person must be medically fit before he is employed or to be continued while in employment is, obviously, with the object of ensuring that the peon is capable of or continues to be capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the work place.
The persons who are rendered incapable, due to ailment, to perform their normal job functions or who pose a risk to other persons at the work place say like due to having infected with some contagious disease which can be transmitted though the normal activities at the work place can be reasonably and justifiably denied employment or discontinued from the employment in as much as such classification has an intelligible differentia which has clear nexus with the object to be achieved , viz, to ensure the capacity of such persons to perform normal job functions as also to safeguard the interests of other persons at the work place. But the person who, though has some ailment, does not cease to be capable of performing the normal job functions and who does not pose any threat to the interests of other persons at the work place during his normal activities cannot be included in the aforesaid class.
Such inclusion in the said class merely on the ground of having an ailment is, obviously, arbitrary and unreasonable. So tested the impugned rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and prospective of the fact that he does not pose any threat to others at the work place is clearly arbitrary and unreasonable and infringes the wholesome requirement of Art 14 as well as Art 21 of the Constitution of India. Accordingly, the circular in so far as it directs that if the employee is found to be HIV positive by ELISA test, his services will be terminated is unconstitutional, illegal and invalid.
# G v. New India Assurance Co. Ltd
This petition was filed by the Petitioner - widow whose husband was working with Respondent Company, died while in employment. The Petitioner had applied to the Respondent Company for employment on compassionate ground, which was rejected by the Respondent Company. On medical examination she was found HIV positive. The Petitioner has three minor children. The respondent Company’s Doctor had opined that as the Petitioner was suffering from HIV positive, she was medically unfit. Thereafter, the Company had sought an expert opinion of Dr. Gilada who had opined that the Petitioner was medically fit to join the Company. He had categorically stated that though the Petitioner carries Human Immunodeficiency Virus, she was absolutely asymptomatic and her immunity was still intact. Dr. Gilada has also gave necessary clinical data justifying that the Petitioner can perform her daily routine work. However the respondent company refused to recruit her and avail of her services.
The Court held that the approach of the Company was illegal and the petitioner cannot be denied employment in law when she was entitled to employment on compassionate ground as her husband died while in service. In Balbir Kaur and anr v. Steel Authority of India Ltd and ors, Banerjee J., speaking for the Bench observed that the socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning. Law courts cannot be mute spectators where relief is denied to the horrendous sufferings of an employee’s family on account of death of the bread earner.
A person cannot be denied employment only on the ground that the person is HIV positive, but otherwise fit. In the opinion of the High Court, HIV positive status cannot be a ground for rejection for employment as it would be discriminatory and violative of the principles laid down in Articles 14, 16 and 21 of the Constitution. As a result the petition succeeded. The Respondent company was directed to appoint the Petitioner on compassionate ground in her present post were she was appointed for temporary period or any other suitable post within a period of four weeks from date of judgment and be given all consequential benefits.
# To enact an anti-discrimination legislation that should apply equally to both the public and private sectors and should prohibit work related discrimination. This legislation should include prohibition of pre-employment HIV testing, routine health checkups with mandatory HIV testing, reasonable accommodation etc.
# Increasing private sector and community participation in the response to HIV/AIDS, including building capacity and responsibility of civil society to respond ethically and effectively.
# The Government may have done much towards prevention by spreading awareness about HIV/AIDS, however not much has been done for those already suffering from it. The Government should therefore introduce action positive discrimination in the form of insurance and health care benefits and introduce medical insurance schemes to cover HIV positive employees.
People Living With HIV/AIDS, their friends and relatives, their communities, national and international policy- and decision makers, health professionals, and the public at large all, to varying degrees, understand the fundamental linkages between HIV/AIDS and human rights. The importance of bringing HIV/AIDS policies and programs in line with international human rights law is generally acknowledged but, unfortunately, rarely carried out in reality. Policymakers, program managers, and service providers must become more comfortable using human rights norms and standards to guide and limit the actions taken by or on behalf of governments in all matters affecting the response to HIV/AIDS. To control the HIV/AIDS pandemic and mitigate its impact, require legal action not only within a country's own borders but also in line with international human rights obligations through its engagement in international assistance and cooperation. Sustained commitment is critical to the future of the HIV/AIDS epidemics around the world.
However, no policy or laws can alone combat HIV/AIDS related discrimination. The fear and prejudice that lies at the core of the HIV/AIDS discrimination needs to be tackled at the community and national levels. A more enabling environment needs to be created to increase the visibility of people with HIV/AIDS as a 'normal' part of any society. In the future, the task is to confront the fear based messages and biased social attitudes, in order to reduce the discrimination and stigma of people who are living with HIV or AIDS.
Books & Articles:
# Legislating An Epidemic (HIV/AIDS In India), The Lawyers Collective, Universal Law Publishing Co.
# Know your Rights, Human Rights and HIV/AIDS, National Human Rights Commission,
# Interview by Sandhya Bhalla, Adviser, Confederation of Indian Industry, Lawyers Collective
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