CHAPTER : 8. Judicial Approach. 8.0 Insurance Cover for HIV positive Delhi High Court directed IRDA to

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1 CHAPTER : 8 Judicial Approach 8.0 Insurance Cover for HIV positive Delhi High Court directed IRDA to implement the draft Guidelines in 8 months period In the matter of Dr. Rajeev Sharma Vs Union of India & Others. The Hon ble Delhi High Court bench comprising Justice D. Mugugesan and Justice V.K. Jain directed IRDA (Insurance Regulatory Development Authority) to implement the draft guidelines to cover all HIV positive under the ambit of Insurance cover...while directing the respondents High Court prescribed 8 months time to implement the same by all insurance companies of the country under the supervision of a High Power Committee represented by top IRDA, NACO and Health Ministry officials along with the petitioner. The guidelines were framed by IRDA under the pressure of a PIL filed by Dr. Rajeev Sharma. Arguing the matter before the Hon'ble Bench Advocate for the petitioner Tariq Adeeb along with Pankaj Sinha requested the bench to set time frame for the implementation of the guidelines in regard to the medical insurance cover for the PHLA (People Living with HIV/AIDS). [1] Delhi HC pulls IRDA on insurance cos denying benefits to HIV patients New Delhi: The Delhi High Court has sought a response from the Insurance Regulatory and Development Authority (IRDA) on a PIL challenging the insurance companies unreasonable and unconstitutional mandate to deny insurance benefits to HIV positive people. 250

2 A Division Bench headed by Chief Justice Dipak Misra issued a notice to the IRDA through the Government of India and demanded a reply to the petition that asked for a court order to the insurance regulator to direct all the companies to consider people suffering with HIV/AIDS on a par with others. [2] 8.1 HIV+ve pregnant woman denied treatment New Delhi: This petition focuses on the serious denial of reproductive rights, right to health and the right to food which have impacted on the right to dignity of a woman. The family of the victim belongs to Bihar and is living below the poverty line. Both husband and wife are HIV positive and have faced harassment at their native place on grounds of their HIV status. The woman faced denial of treatment during her advanced pregnancy stage. After which they came to Delhi on December 12, [3] Kolkata high court faced denial and discrimination for Reproductive health rights of people living with HIV 8.2 Writ Petition: X v. Union of India & Otherse -writ petition filed in Kolkata high court faced denial and discrimination for Reproductive health rights of people living with HIV Despite a strengthening of the legal rights of HIV positive individuals in India in recent years, many of those living with the virus still find themselves the targets of discriminatory practices. This petition is filed on behalf of two individuals whose reproductive and health rights including rights to confidentiality and against mandatory HIV testing have been breached by private and state health authorities. [4] 251

3 8.3 Shelter home for People Living with HIV/AIDS Women with HIV/AIDS in India face a disproportionate burden of discrimination. Their families often abandon them once their HIV status becomes known and they have a difficult time finding employment. Faced with trying economic circumstances it not uncommon for these women to have a difficult time accessing proper shelter for themselves and their dependents. A plan developed in 2001 sanctioned the creation of fifty women's shelters in West Bengal; however only five of these have opened thus far. 8.4 Bombay High Court orders second line treatment to people living with HIV/AIDS The Network of Maharashtra People with HIV had filed a petition in public interest in March 2009 in the Bombay High Court against the Ministry of Health & Family Welfare of the Union of India, the National AIDS Control Organisation (NACO), Maharashtra State AIDS Control Society, Sir JJ Hospital and the Ministry of Health of the State of Maharashtra on the issue of provision of free second line treatment to HIV positive persons who were not responding to first line antiretroviral therapy (ART). [5] Bengal Docket : Bengal Network of Persons Living with HIV / AIDS Vs. State of West 4 machine. Every district should have Anti Retro Viral Treatment Centre (ART) and CD- Anti-retro Viral is a medicine for HIV affected persons and CD-4 machine would help in counting CD-4 cell which gradually decrease in number if a person is tested with HIV positive. 252

4 8.5 XY vs YZ Combating everyday discrimination As well as fighting and winning landmark judgements, HRLN lawyers work on the day-to-day issues that affect people living with HIV/AIDS. This case is an example of such work and the everyday difficulties faced by people living with HIV/AIDS. [6] 8.6 X vs Y Action against an eye centre for refusal to provide treatment This petition was filed under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus or certiorari, order or direction to the Respondents against violation of the right to life (Articles 14 and 21 of the Constitution of India) via discrimination on the grounds of denial of medical treatment. The Petitioner was aggrieved for being refused an operation on his right eye because he was HIV positive. [7] 8.7 XYZ vs State of Rajasthan and Others Fighting discrimination and denial of equal opportunity This case concerned recruitment for the post of GIPA Coordinator by the Respondents. An advertisement was issued for this role, notifying that preference would be given to applicants living with HIV. Despite the status of the Petitioner, the recruitment process of the Respondents did not give said preference. In the order dated 30 June 2008, the learned judge issued notices and a copy of the order dated 30 June 2008 to the Respondents, returnable within 4 weeks. [8] 253

5 8.8 Manipur Network of Positive People vs. Union of India and Ors. in Manipur A PIL that highlighted the woeful situation of HIV/AIDS prevention and treatment Northeast India has one of the largest proliferations of the HIV virus in the country. Despite this, health and prevention measures in the region have flagged behind the progress in the rest of India. For example, the State of Manipur only had 4 CD4 testing machines in the whole state. CD4 testing is crucial for many steps of the treatment/prevention process. Accurate CD4 counts are necessary to determine infection, stages of the illness, eligibility for various drugs and progress of the drugs. Therefore, CD4 testing machines need to be widely available to fight the spread of the virus. [9] 8.9 Love Life Society vs. Union of India & Ors This petition calls upon the government to include People living with HIV/AIDS in the category of 'chronically ill persons' for railway travel concessions. Delhi Network of Positive People &Anr. versus Union of India & Ors is a Public Interest Litigation, filed before the Delhi High Court by Human Rights Law Network (HRLN) on behalf of Delhi Network of Positive People and Love Life Society. [10] 8.10 Delhi Network of Positive People & Anr. vs. Union of India & Ors This petition calls upon the government to include People living with HIV/AIDS in the category of 'chronically ill persons' for railway travel concessions. Delhi Network of Positive People &Anr. versus Union of India & Ors is a Public Interest Litigation, filed before the Delhi High Court by Human Rights Law Network (HRLN) on behalf of Delhi Network of Positive People and Love Life Society. [11] 254

6 8.11 Voluntary Health Association of Punjab (VHAP) vs. The Union of India and others Petition to provide free ARV drugs to HIV positive people Despite a steady rise in the rate of HIV infection, prior to 2004, the Government of India only had an AIDS prevention policy. Treatment was not part of its duty. In 2003, HRLN filed a petition on behalf of the Voluntary Health Association of Punjab (VHAP) calling upon the government to provide free ARV drugs to HIV positive persons. Resultantly, treatment was accepted as part of government policy. This petition seeks the recognition and implementation of the right to health and treatment of positive persons as a part of their Right to Life under Article 21 of the Indian Constitution. [12] 8.12 XZ vs. Union of India of India. Petition against discrimination in employment under the article 16 of the Constitution Discrimination against those living with HIV/Aids has been found in various public and private sectors in India. This includes dismissing employees from service as soon as the employer knows about their HIV positive status, even though they can live a normal and physically active life for an indefinite period. [13] A landmark anti-discrimination case in the Bombay High Court that affirmed the rights of PLHAs in the workplace was MX v. ZY [AIR 1997 Bom 406] where MX, a casual labourer, was tested for HIV by his employer, ZY, a public sector corporation, prior to being regularised into a permanent position. MX tested positive for HIV, and though otherwise fit, was rejected from being regularised, and his contract was terminated. MX filed a writ petition in the Bombay High Court, arguing that the company's rules 255

7 (mandatory HIV testing and denial of employment to positive people) and actions violated Articles 14 (Equality before the law), 16 (Equality of opportunity) and 21 (Right to life and personal liberty) of the Indian Constitution. The court ruled that: A government/ public sector employer cannot deny employment or terminate the service of an HIV-positive employee solely because of their HIV-positive status, and any act of discrimination towards an employee on the basis of their HIV-positive status is a violation of Fundamental Rights. [14] 8.13 In RR v. Superintendent of Police & others (Unreported [2005] Karnataka Administrative Tribunal), RR, was tested for HIV as a requirement for entry into the police force. On being found to be HIV-positive his job application was rejected. RR approached the Karnataka Administrative Tribunal challenging the constitutionality of a circular issued by the director general and inspector general of police mandating that applicants testing HIV-positive would not be inducted into the Karnataka Police. The Tribunal declared that a person who was fit, otherwise qualified, and posed no substantial risk to others cannot be denied employment in a public sector entity. It also found that the policy circular that denied employment on grounds of an HIV-positive diagnosis alone was a violation of Articles 14 and 16 of the Constitution of India, and prohibited the government from denying employment on these grounds in future. It directed that RR be given employment as a police constable from the date he qualified for the post and that his service benefits should also be assessed from that date. [15] 8.14 In the appeal, Mr X v Hospital Z, [AIR 2003 SC 664], also known as the right to marry judgment, while the Supreme Court rescinded its earlier observations regarding marriage, and restored the right to marry for PLHA, it upheld its previous decision about partner notification maintaining that this disclosure was permissible. [16] 256

8 8.15 Lucy R. D'Souza v. State of Goa [Bombay High Court (AIR 1990 Bom 355)] The late Dominic D'Souza had gone to donate blood where he was found to be HIV positive and as a result was quarantined in a TB hospital. The Goa, Daman and Diu Public Health Act, 1985 authorised the State of Goa to mandatorily test any person for HIV and isolate persons found to be HIV positive and on such conditions for such period as may be prescribed. The provision was challenged before the Goa Bench of the Bombay High Court by Dominic's mother, Lucy D'Souza, on the ground that it violated the fundamental rights of her son, guaranteed under Articles 14 (right to equality),19(1)(d) (right to move freely throughout the country) and 21 (right to life) of the Constitution. The Court held that the matter essentially fell in the realm of policy and this decision was taken by those who were in charge of advancing public health and who were equipped with the requisite know-how. Further, while recognizing the harmful effects of isolation of people living with HIV, the Court held that held that in case of a conflict between individual liberty and public health, considerations of public health would prevail. However after the judgment had been passed, the Government has not to implement the impugned Act LX v. Union of India [Delhi High Court (CWP /2004, 5 May 2004) LX, an undertrial, tested HIV-positive and required antiretroviral therapy (ART) during the time he was incarcerated. He was initiated on an ART regimen by the jail hospital and Safdarjung Hospital. Subsequently, he was released on bail, but the authorities informed him that his treatment would be discontinued once he was released. The drugs were priced such that he could not afford to purchase them once he was released. LX filed a petition praying that the Government continue to provide him ART despite his release. 257

9 In a series of interim orders, the Delhi High Court directed the Government to continue to provide ART to LX. Later, LX was directed to present himself at the All India Institute of Medical Sciences (AIIMS) with his past records for the continuation of his treatment. Pursuant to the commencement of the ARV roll-out by the Government of India in April 2004, the High Court directed the government provide ART to LX under the ARV roll-out programme and to reimburse AIIMS for the costs incurred by them Shri Subodh Sarma & Anr. v. State of Assam & Ors. - Guwahati High Court (2000) This public interest litigation was filed praying for the proper utilisation of funds allocated by the Central Government to Assam for the HIV programme. Grievances of the Petitioners included, a lack of systemised data, general awareness among the public and proper documentation, blood banks operating without licenses and control, misallocation of funds, discrimination against people living with HIV, amongst others Ramdas R. Ubale v. State of Maharashtra - Bombay High Court (Criminal Application 371 of 2008 in Appeal No. 706 of 2006) In September 2008, an HIV positive prisoner from Yerwada Prison, Pune appealed for bail on the grounds that medical facilities in the prison were insufficient to manage his medical condition. He provided data to show that 32 prisoners in Yerwada prison had died between 2001 and 2005 due to non-availability of medical facilities. The Court however, based on expert opinion, dismissed the appeal, concluding that the applicant's CD4 count did not indicate the needs for initiation of ART treatment. While the application was pending, the prisoner died. 258

10 In view of the orders passed the matter was disposed off with a number of directions, some of which are highlighted below: (1) ICTC personnel may visit the prisons in the State where regular ICTC facilities are not available at least once in a week; (2) The State may try to increase the strength of sanctioned posts of Medical Officers in order to see that every person may have medical officers whose services can be utilised at the prisons. Till such time, the State was directed and see that a medical officer who is in charge of a local dispensary may visit such centre where there are no medical facilities regularly and at lease thrice a week; (3) One post of Laboratory Technician be filled latest by 31st July, 2010; So far as the remaining 11 posts of compounders were concerned, the State Government was directed to expedite the appointment procedure within a period of one month from today; 8.19 Mr. X v. Hospital Z (1998) 8 SCC 296, AIR 1998 SCW Supreme Court of India Mr. X, was directed by the Government to accompany his uncle, who was a minister in the State Government, to Z Hospital in the south of India for treatment. The minister was posted for surgery, however, it was cancelled due to shortage of blood. Later, Mr. X and his driver were asked to donate blood for the operation. Their blood samples were taken and test results showed that Mr. X's blood group was A(+ve). However, Mr. X was not disclosed the result of his tests at all. A bit later, Mr. X proposed marriage to one Ms. Y which was accepted. In the meantime, the Hospital informed the minister that Mr. X had tested positive for HIV. 259

11 When he came to know of this, Mr. X himself called off the marriage. He went again to the Hospital Z where several tests were conducted and he was confirmed to be HIV positive. Since the marriage had been settled but was subsequently called off, several people including the members of the Mr. X's family and persons belonging to his community became aware of the appellant's HIV positive status. This resulted in severe criticism of Mr. X and he was ostracized by the community, forcing him to leave his State. Mr. X then approached the National Consumer Disputes Redressal Commission for damages against the Hospital Z, on the ground that the information which was required to be kept confidential at common law and under medical ethics was disclosed illegally. The Commission dismissed the Petition summarily by its order dated 3rd July 1998 on the ground that Mr. X could seek his remedy in the civil court. Mr. X therefore approached the Supreme Court. The question of law before the court was whether the National Consumer Forum had the jurisdiction to entertain a case in which the plaintiff was HIV positive and whose status was disclosed by the hospital to 3rd parties. The Supreme Court, however, chose to pass a judgment on merits and held that: (1) Patients suffering from 'AIDS' deserve full sympathy and are entitled to all respect as human beings. Jobs cannot be denied to them. (2) Although the doctor-patient confidentiality is an important and part of the medical ethics incorporated by the then Medical Council Act, a patient's right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse. 260

12 8.20 A, C & Ors. v. Union of India & Ors. (1999) - Bombay High Court A, a female and C, a male, both of whom had been diagnosed as HIV positive. They desired to get married to each other. They filed this Writ Petition in the Bombay High Court, seeking clarifications in the light of the Supreme Court judgment, in Mr. X v. Hospital Z (1998) 8 SCC 296 which had held that the person's right to get married was suspended, during the period when a person is HIV positive and if a person living with HIV were to marry, he or she may be guilty of an offence under the Indian Penal Code. The Bombay High Court held that as a person living with HIV had moved the Supreme Court, on the same issues raised in the Petition, contending that his fiancée had no objection to living with him in wedlock, and had sought clarifications from the Supreme Court, as to whether a person suffering from a communicable disease has a right to marry and even if such a marriage is solemnised by mutual consent, whether it attracts criminal action, A and C therefore, ought to approach the Supreme Court and all the more when the Supreme Court itself was seized of the matter. Read the full order HERE Mr. X v Hospital Z (AIR 2003 SC 664, (2003) 1 SCC 500) - Supreme Court of India This case was filed by the Lawyers Collective HIV/AIDS Unit on behalf of its client Mr. X, seeking clarifications and challenging the judgment of the Supreme Court in the case of Mr.X v. Hospital Z (1998) 8 SCC 296, where it had suspended the right of PLHAs to marry although it was never an issue before it. The Court held that all observations relating to marriage in Mr. X v Hospital Z 1998 were not warranted as they were not issues before the court. However, the Supreme Court's pronouncements regarding the role of hospitals to make disclosure of HIV status in Mr. X's judgment remain as they were made regarding an issue before it in the case 261

13 Therefore, it held that the Supreme Court's judgment in Mr. X v Hospital Z to the extent that it suspended the right of people living with HIV/AIDS to marry is no longer good law and restored the right of an HIV + person to marry. However, it further held that this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage MX v. ZY AIR 1997 Bom Bombay High Court MX was working as a casual labourer for a public sector corporation, ZY. After working for sometime, MX was put on a selection panel of casual labourers for confirmation to a regular post, for which he was required to undergo medical examination. The examination revealed that he was HIV positive, but otherwise physically fit. After learning the results of his medical examination, the Respondent, ZY, deleted MX's name from the selection panel of casual labourers, and terminated his contract. MX challenged his removal as well as the rules framed by his employer which required that all employees undergo mandatory testing for HIV and those testing positive would not be recruited, arguing that they violated Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life). In a landmark judgment, the Bombay High Court held that no person could be deprived of his or her livelihood except by procedure established by law and that the procedure must be just, fair and reasonable. It held that: (1) If a person is fit to perform his job functions; (2) is otherwise qualified and (3) does not pose a substantial risk to fellow workers; 262

14 8.23 Mr. Badan Singh v. Union of India & Anr. Delhi High Court (2002) Seven years after Mr. Singh was enrolled in the Border Security Force, it was discovered that he had contracted HIV Infection as well as tuberculosis of the lungs and abdomen with infective hepatitis. The Medical Board considered him unfit for further service. A Review Medical Board was also convened on his request but also arrived at the conclusion that he was unfit for further service. Mr. Singh was medically boarded out from service with seventy per cent (70%) disability though he asserted that on the date of the termination of his services, he was capable of performing the duties assigned to him but the Respondents made no effort to consider this aspect. Pension rules of the BSF do not preclude a person from obtaining a pension if the infirmity which permanently incapacitates them results from the duties officially performed. It was held that one of the essential functions and duties of the Government and any other Authority directly sourced from Government funds is to extend medical benefits and support to the suffering. The Court observed that the grant of invalid pension is nothing more than a basic obligation. The Respondents were directed to pay the Petitioner an invalid pension and interest at the rate of 6% p.a. as well as costs of the petition, quantified at Rs X v. State Bank of India (2002) - Bombay High Court Mr. X had been working at State Bank of India as sweeper (casual labour) since In about 1997 the bank considered X for recruitment as hamal-cum-sweeper for which he was interviewed. He was thereafter asked to undergo a medical check-up which included an HIV test. He tested positive for HIV. He was orally informed by his supervisor at the bank that he was rejected on grounds of his HIV positive status. X kept visiting the bank but he was not asked to undergo further fitness test or given a letter rejecting his application. 263

15 X approached the Bombay High Court on the ground that he was being discriminated against because of his HIV status. The court relying on the decision in MX v. ZY (AIR 1997 Bombay 406), held that X could not be denied the opportunity of employment, however, due to the passage of time, he would have to undergo reasonably required tests for his physical fitness. The bank was to consider Mr. X for absorption on a priority basis, subject to his medical eligibility, and till then he would be considered a casual labourer G v. New India Assurance Co. Ltd. (2004) - Bombay High Court G was a widow whose husband died while in employment of New India Assurance Co. Ltd. (the company). She had three minor children. She applied to the company for employment on compassionate grounds. On medical examination she was found HIV positive and the company's doctor opined that her HIV positive status made her medically unfit. Thereafter, the company sought an expert opinion, who on the other hand opined that G was medically fit to join the company and could perform her daily routine work. Her application however was rejected G approached the Bombay High Court which directed the Company to appoint G on compassionate grounds as a Class IV employee on temporary basis. The company was given liberty to seek further medical opinion about G. The Committee, so appointed, also recommended G for employment. The company was directed to appoint G on compassionate grounds to the post to which she was appointed for temporary period or another suitable post and give her all consequential benefits. The Court held that a person who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive. The Court further held that a person's HIV status cannot be a ground for rejection for employment as it would be discriminatory and would violate of the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution. 264

16 8.26 X v. The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82 X, a Reserve Police Constable, had applied for the post of Sub-Inspector of Police (Civil). Though he qualified both the physical and written tests and was provisionally selected as Sub-Inspector of Police, he was denied appointment on the ground that he had tested HIV positive. The Police Department relied on Order 70(3) of the A.P. Revised Police Manual which prohibited the appointment of, otherwise eligible, HIV positive candidates as Sub-Inspector of Police. On being denied appointment, X first approached the Andhra Pradesh Administrative Tribunal which held that he was not entitled to any relief on the ground that the A.P. Revised Police Manual permitted the state to not employ persons living with HIV. Against the order of the Tribunal, a writ petition in the Andhra Pradesh High Court was filed challenging Order 70(3) of the A.P. Revised Police Manual, arguing that denial of employment to a person only on the ground of being HIV positive infringes their right to life and livelihood. The High Court struck down Order 70 (3) and relying on MX v ZY (AIR 1997 Bom 406) held that a person, who was fit, otherwise qualified and posed no substantial risk to others, cannot be denied employment in a public sector entity. The matter was appealed in the Supreme Court, but was dismissed RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal In 1999, RR had applied for the post of police constable. He appeared for the interview and was provisionally selected. He was compelled to undergo a physical fitness test where he was found to be living with HIV and his appointment was cancelled due 265

17 to his HIV status. RR approached the Karnataka Administrative Tribunal, challending a circular of the police that disqualifying applicants testing HIV positive from being inducted into the Karnataka Police force on the ground that it violated of Articles 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life). The Tribunal relied upon MX v ZY AIR 1997 Bom 406 and Mr X v Hospital Z (Right to marry) 2002, SCCL.COM 701 and declared that a person, who was fit, otherwise qualified and posed no substantial risk to others, couldn't be denied employment in a public sector entity. It further declared the circular to be unconstitutional under Articles 14 and 16 of the Constitution and directed the Government to ensure that no denial of employment on the grounds of a person's HIV occur in the future. It further directed the Respondent-State to provide employment to the applicant as Police Constable (Civil) from the date he was entitled to S v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999] S (the petitioner) was a widow. Her husband was a Head Constable working with CISF. Her husband, the only earning member of the family, had died of HIV/AIDS related illness. S applied for compassionate employment to the CISF which was rejected without any reason and she had to vacate the residential quarters allotted to her husband while in service. S was in the asymptomatic stage and her immune system was good. She also had to incur additional expenses for medical treatment for her daughter and herself, both of whom were HIV+. The Respondents claimed that no vacancy existed. S approached the Bombay High Court on being denied compassionate employment on the ground that the act of the CISF amounted to discrimination on the basis of her HIV status. The Court held that there should be no delay in appointment in all claims 266

18 of compassionate employment. If there exists no suitable post, a supernumerary post must be created. The court directed the respondents to create a supernumerary post for the petitioner within 8 weeks, and consider her case for grant of service quarters on priority basis in accordance with the rules A v Union of India [Unreported In the High Court at Bombay(28 November 2000), WP No of 2000 The Petitioner (A) joined the Indian Navy and was posted in the Submarine branch. He was deputed in a crew to bring a submarine from Russia in At that time he had to undergo medical examination, wherein he tested HIV positive. A was placed in a low medical category and was continued in service, so as to enable him to complete 15 years of service, which will entitle him to full pensionary and other benefits. Later, recommendations and requests from his Commanding Officer and the Staff Officer (Personnel) that A for reengagement for a further period of three years, the higher authorities in the Navy informed the Petitioner that his case was not recommended as he was HIV Positive. The Petitioner approached the Bombay High Court, arguing that the Respondents letter and Naval Order 26/93 violated Article 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life) of the Constitution. Holding that no person had a right to be re-engaged, the High Court did not find the letter and Navy order to be in violation of Article 14 and 21 and dismissed the Petition. Later on a Review Petition was filed on the ground that the Hon'ble High Court had not expressed any opinion on whether the Petitioner may be given an onshore duty, instead of duty in the submarine. The High Court held that this matter had to be considered by the authorities, if such a request is made by the Petitioner. It was open to the Petitioner to make an appropriate representation to the authorities concerned. 267

19 8.30 CSS v. State Of Gujarat (2001) [Unreported Special Civil Application No of 2000 (Gujarat High Court) (17 February 2001) CSS was selected for the post of unarmed police constable in the Gujarat State Police force. He appeared for the medical fitness test. The Civil Surgeon classified CSS as "not medically fit" as he was HIV-positive without conducting any further medical examination. After the Civil Surgeon communicated the letter of fitness to the police force, CSS's name was deleted from the list of selected persons. Further, CSS also alleged that other HIV-positive candidates, whose parents were serving in the police force, were appointed. This allegation was not controverted by the Respondent. The Court, following MX v ZY (AIR 1997 Bom 406), held that an HIV-positive person who is otherwise medically fit shall not be denied opportunity of employment solely on the ground of his HIV-positive status. Further, the deletion of CSS's name in light of the specific instances of appointment of two other HIV-positive constables, which were not controverted by the Respondent, violates Articles 14 (right to equality) and 16 (right to non-discrimination in government employment) of the Constitution. The Court therefore directed the Respondent to restore CSS to the list of selected persons and send him for further medical examination. The Respondent was further directed not to deny opportunity of employment to CSS solely on the ground of his HIV-positive status, if he is otherwise medically fit India Network of Positive People v T.A. Majeed & Ors. (Order of the Supreme Court in SLP (Civil) No(s). 5527/2004 dated 03/01/2007) In 1993 the Drug Controller of Kerala issued a licence to one T.A. Majeed to manufacture 'Immuno QR' powder - an ayurvedic medicine claiming to increase the resistance of persons for certain ailments, like night sweats, fever, cough and skin problems. Contrary 268

20 to the conditions of the licence, Majeed started selling Immuno QR as a cure for AIDS. Consequently, in September 1997 the Drug Controller cancelled Majeed's licence. Majeed challenged this order before the Kerala High Court which stayed the Drug Controller's order; which meant that Majeed could continue manufacturing and selling the drug till the final disposal of the case and as a result also as a cure for HIV/AIDS. Between 2000 and 2001, petitions were filed in the Bombay and Kerala High Courts by the Maharashtra Network of Positive People (MNP+) and the Peoples Union for Civil Liberties (PUCL) respectively to prevent Majeed and others from advertising any cure for HIV/AIDS. Both Courts restrained Majeed from advertising Immuno QR as a cure for AIDS. However, Majeed was allowed under a previous order of the Kerala High Court to continue the manufacture and sale of Immuno QR. It was in this case, originally filed by Majeed to challenge the Drug Controller's order, that the Indian Network for People living with HIV/AIDS (INP+) filed an intervention application. In December 2001, the Kerala High Court restrained Majeed from manufacturing any drug for which a licence was required. In response, Majeed filed a Special Leave Petition (SLP) in the Supreme Court, which sent the matter back to the Kerala High Court directing Majeed not to manufacture Immuno QR. When the matter was taken up by the Kerala High Court in August 2003, it was informed by the government pleader that a committee consisting of experts in the field of ayurvedic medicine had been set up but had failed to meet. The government asked for three months. However, the High Court allowed Majeed to manufacture and sell Immuno- QR as long as he did not advertise it as a cure for AIDS until the committee gave its report. The High Court further directed the government to clinically test the drug and submit its report to the Court. Effectively Majeed continued to manufacture and sell the drug. 269

21 INP+ then filed an SLP in the Supreme Court against the order of the Kerala High Court. On the 3rd of January 2007, the SLP filed by INP+ came up for hearing before the Supreme Court, the Court: (1) Set aside the order of the Kerala High Court which had suspended the Drug Controller's order of cancellation of the drug and substituted that order with its earlier order that directed Majeed not to manufacture Immuno QR till the final disposal of the case. (2) Held that it was not a valid ground to stay the order of the Drug Controller that the committee had not been able to examine the drug and file its report. (3) Directed the Kerala High Court to expedite the hearings and dispose of the Petitions pending before the court preferably within three months. (4) Restrained Majeed from manufacturing and selling Immuno QR till the final disposal of the cases pending in the Kerala High Court P v. Union of India (2001) - Kolkata High Court (Negligence in blood transfusion) P, a pregnant lady was admitted for delivery of her child at a hospital under the administrative control of the Indian Navy. After delivery P required blood transfusion. A sailor donated blood to hospital, which did not come from the blood bank of the hospital as required under the provisions of the Drugs & Cosmetics Act. The sailor's blood was not tested for HIV at the time of donation. He was later found to be HIV+. P also became HIV+ which was clearly on account of the negligent transfusion of blood to her. 270

22 The Court felt that since the hospital was under administrative control of the Indian Navy, it had a duty to compensate P. Pursuant to correspondence between the parties Indian Navy made an offer of compensation which included, a Government job at Kolkata or the place where she desired, accommodation on her appointment on the usual terms and conditions, a sum of Rs. 10 lakhs from the date of filing of the writ 18% interest and medical treatment at the cost of the Government. P agreed to the offer and the Court passed the judgement in terms of the compromise arrived at by the parties M. Chinnaiyan v Sri Gokulam Hospital & Queen Mary's Clinical Laboratory (National Consumer Dispute Redressal Commission, 2006) The Appellant's wife underwent a hysterectomy operation, at the 1st Respondent hospital in 1990 where she was transfused 2 units of blood post her operation which was procured from the 2nd Respondent laboratory in In mid-1994 the Appellant's wife developed recurrent loose motions, weight loss, respiratory infection and difficulty in swallowing etc. On being tested she was found to be HIV+ and showed symptoms of AIDS. In July 1995, she developed left-sided hemiparesis, oral candidiasis and TB. Later she was diagnosed with glioma of the brain and died in August Her husband filed a complaint before the State Consumer Redressal Forum against the hospital and pathology laboratory for deficiency of services under the Consumer Protection Act. His Complaint was rejected. Aggrieved by this order he appealed to the National Consumer Dispute Redressal Commission (National Commission). The National Commission held: The 1st Respondent gave blood transfusion without obtaining the consent of the patient and that the concerned doctor negligently transfused blood, as he did not inform the Petitioner's wife about the benefits, risks or alternatives of blood transfusion, which amounted to deficiency of service under the Consumer Protection Act. 271

23 Furthermore, the Drugs and Cosmetics Rules, 1945, requires that every licensee of a blood bank get samples of every blood unit tested for freedom from HIV antibodies, which the 2nd Respondent had failed to do. As compensation, the Commission awarded Rs. 4,00,000 (Rs. 4 lakh) with interest at the rate of 6% p.a. from the date of filing the complaint, which was to be paid jointly and severally by the Respondents and Rs 10,000 as costs. An appeal by one of the Respondents to the Supreme Court was dismissed [17] 8.34 The HIV/AIDS Bill 2009: HIV/AIDS: Need for a Law People living with HIV are discriminated against merely because of their HIV status. Children living with HIV or having parents with HIV are refused admission in schools; HIV positive patients are denied treatment in hospitals. Such HIV-related discrimination is directed not only towards people living with HIV but also their families and to communities vulnerable to HIV. This discourages people infected or affected by HIV from accessing healthcare services, driving the epidemic underground. On the other hand, when people are assured of their rights, they will not be afraid to seek testing and know their HIV status. Assurance of non-discrimination, as also provision of voluntary and confidential services, encourages adoption of HIV prevention and treatment, making it easier to control the epidemic. It is only by protecting the rights of the people who are infected with HIV or are vulnerable to it; that we can effectively fight the epidemic. Countries like Cambodia, Vietnam and Philippines have comprehensive HIVspecific rights-based legislation. Others such as U.S.A, South Africa and Australia addr ess issues related to HIV/AIDS through their respective anti-discrimination, disability, or public health legislation. In India, there is no comprehensive law on HIV. 272

24 Constitutional remedies against discrimination are only available against the public sector. The duty to obtain consent and maintain confidentiality is recognized at common law, which is practised inconsistently, depending on the predilection of judges. Though the National AIDS Prevention and Control Policy 2002, espouses a rights-based approach, it does not have the force of law and cannot be enforced in courts. In the absence of a comprehensive statute, HIV positive people remain vulnerable to rights violations, thus weakening the response to AIDS. The need for an HIV law is urgent. [18] 8.35 The HIV/AIDS Bill: The Process The process of drafting the HIV/AIDS Bill started with the International Policy Makers Conference on HIV/AIDS, held in May 2002 in New Delhi, where the need for a law on HIV was highlighted. An advisory working group was formed, chaired by the Project Director of the National AIDS Control Organisation (NACO), under the Ministry of Health and Family Welfare. The responsibility of drafting the HIV/AIDS Bill was given to Lawyers Collective HIV/AIDS Unit, a non-profit organisation, based on its work and expertise in the field of HIV and law. The Bill was prepared after extensive research and nationwide consultations with stake-holders including HIV positive people, high risk groups, women and children s groups, healthcare service providers, employers and employee organisations, lawyers and civil society organisations. The HIV/AIDS Bill was submitted to NACO in August 2006 after taking feedback from State Governments, State AIDS Control Societies (SACS) and Central Government Ministries. Presently the Health Ministry is in discussion with the Law Ministry regarding some provisions of the Bill. The Bill is still to be tabled in Parliament. [19] 273

25 8.36 Salient Features of the HIV/AIDS Bill Prohibition of discrimination: The Bill provides protection against discrimination in employment, education, healthcare, travel and insurance in both public and private sector. Informed consent for HIV testing, treatment and research:. The Bill mandates the provision of non-coerced, written consent after giving full details about risks, benefits and alternatives. Non-disclosure of HIV related information: The Bill recognizes a person s right to privacy and confidentiality of HIV status with certain exceptions. Access to treatment: The Bill requires that the State provide for free-of-cost access to comprehensive HIV related treatment including diagnostics, ARVs and nutritional supplements. Right to a safe working environment for doctors, healthcare workers and other persons whose occupation may put them at risk of exposure to HIV. The Bill imposes an obligation on healthcare institutions to provide necessary universal precautions and prophylaxis. Promotion of risk reduction strategies for groups at higher risk of HIV infection: Targeted interventions like promotion of condoms among sex workers and men who have sex with men and distribution of clean needles to people who inject drugs have proven to prevent HIV transmission. certain criminal laws, however, impede these services by threatening providers and recipients with prosecution. The Bill provides legal immunity to risk reduction programmes, thus strengthenening efforts to prevent HIV. [20] 274

26 A bill aiming to protect people with HIV/AIDS against discrimination was introduced in the Rajya Sabha Tuesday. The HIV/AIDS (Prevention and Control) Bill, 2014, was introduced in the upper house by Health Minister Ghulam Nabi Azad. The draft of the bill was finalised in 2006, and civil society groups and HIV/AIDS-affected people have long been demanding passage of the legislation. Under the proposed law, HIV/AIDS-affected people will be provided protection against discrimination in employment, health care, education, travel and insurance, in both public as well as private sectors. The bill proposes imprisonment and fine for those spreading hatred and discrimination against HIV patients. According to official information, a fine up to Rs.10,000 and two years' imprisonment has been proposed as punishment for spreading hatred against people with HIV/AIDS. The bill also proposes a legal commitment to provide Anti-Retroviral Therapy (ART) by the government to patients as far as possible. [21] 275

27 References (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) 20Prevention%20and%20Control%20Bill% pdf (21) 276