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Introduction
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 Instruments
International 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 India
Article 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 Commission
One 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 Organisation
The 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, 2002
The 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/Aids
Preface
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 PLWHA
The 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.
Suggestions
# 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.
Conclusion
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.
Bibliography
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
Websites:
#
www.naco.nic.in
#
www.unaids.com
#
www.lawyerscollective.org
#
www.encarta.com
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Human
Rights Perspective On Hiv/Aids Vis-À-Vis Right To Employment Of
Persons Living With Hiv/Aids
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author can be reached at: chandrika_himanie@legalserviceindia.com /
