Project on Constitution-1

Topic:- HIV Patients and Constitution

Submitted by

Name-Kumar Karan
Division-‘C’ PRN No- 15010223029
Class-B.A.LL.B(2015-20)

of Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

IN
August 2016

Under the guidance of

Prof. Sudhir Verma

Visiting Faculty
Symbiosis Law School, NOIDA
Symbiosis International University, Pune

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 CERTIFICATE
_____________________________________

The project entitled HIV patients and the Constitution, submitted to the
Symbiosis Law School, NOIDA for Constitutional Law-1 as part of
Internal assessment is based on my original work carried out under the
guidance of Prof. Sudhir Verma and Prof. Satya Paraksh, from July 2016 to
October 2016.

The research work has not been submitted elsewhere for award of any
degree. The material borrowed from other sources and incorporated in the
thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

(Kumar Karan)
Signature of the Candidate

Date:

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 Acknowledgement
_____________________________________

I am highly obliged to my teacher, Prof. Sudhir Verma and Prof. Satya

Prakash for providing me an opportunity to work on the topic HIV patients
and the Constitution of India, which is a topic of such contemporary as well
as current relevance. This opportunity has been extremely enriching and
given me the requisite impetus to improve my understanding on the
controversial pension scheme plan imposed by the central government.

I also take this opportunity to thank SLS,NOIDA for providing me with the
online legal database which proved to be of a great help for me in the
completion of the project, and sincere thanks to Mr. Ram Singh, our
librarian for he was always there to help me with the books present in the
library.

The project gave me an opportunity to make my analytical skills stronger.

Kumar Karan
B.A.LL.B
Symbiosis Law School, NOIDA

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 Table of Contents
__________________________________________
Sl. No Particulars Page No.

1. Introduction 5

2. Provisions in the Indian Constitution to be dealt with 6

3. Legal Provisions as per International Conventions 6

4. List of Cases 6

5. Rights of HIV/AIDS patients 7

6. Case Study 8

7. Interpretation of Article 14 with reference to rights of HIV 9

patients

8. Interpretation of Article 21 with reference to rights of HIV 10

patients

9. Conclusion 11

10. Bibliography 12

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Introduction:
What is HIV?
Human Immunodeficiency Virus, if left untreated may lead to aids. And unlike another virus, the
human body is not capable of getting rid of this virus. HIV attacks the ‘T’ cells which help the
immune system fight the infections. Now what HIV does is it keeps on reducing the strength and
the count of the ‘T’ cells in the body, which in return makes the body immune system weak and
more to even the mildest of the disease. Over time the virus destructs so many other functional
cells of the body exposing the body to a greater threat to various forms of diseases. As of now,
the medical science has failed to find out any proper cure for the HIV virus, but certainly, with
proper care, the effect of this virus can be controlled. Uncontrolled growth of the HIV virus leads
to a disease called as AIDS(Acquired Immuno Deficiency Syndrome). The stage occurs when
the immune system is badly damaged, and the body becomes susceptible to various diseases. The
disease is said to have by the scientists that were acquired in the humans from a particular tribe
of a chimpanzee in Central Africa. Further study reveals that the disease was inflicted in humans
through the meat of such chimpanzees consumed by the humans.
But, unfortunately, in today’s society; the person suffering from HIV is not accepted in the
society, for the other people believing that upon contact with any such persons, the disease may
spread. However, this is not true. This attitude of the people makes the life of such patients
miserable. This is where the role of the state is important, and this shall be a discussion in the
project. The research work shall focus on :
1. Is our Constitution capable of tackling the problem of HIV patients?
2. Should such discrimination make out to the people suffering from such disease be held valid?
3. Doesn’t such discrimination if made by the state violate the basic structure of the constitution
as envisaged in Part 3 of the constitution of India? Are such cases being violative of Article 21 of
the Constitution of India?
The study shall be discussing the above-mentioned points with their relevance and their
application in the Indian scenario, with reference to the Constitution of India.

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Provisions in the Indian Constitution to be dealt with:
Article 14, 21, 38, 39 of the constitution of India.

Legal Provisions as per the International Conventions:

The Union of India has signed various treaties and various declarations which speak and shows
India’s concern for the HIV patients and their protection of rights. The International Convention
on Civil on Civil and Political Rights and the International Covenant on Economic, Social, and
Cultural Rights are two international treaties signed by the Government of India to protect the
rights of the HIV patients in India.
The Universal Declaration of Human Rights also lays down that the principle of non-
discrimination is a fundamental right to humans. The same also applies to the people suffering
from HIV/AIDS. The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage
in law reform. It also guides the states to identify legal obstacles so as to form an effective
strategy for HIV/AIDS prevention and care.

List of cases:
1. MX of Bombay Indian Inhabitant v. M/s ZY (AIR 1997 Bom 406)
2. Indian Network for People living with HIV/AIDS, rep. by its President and Tamil Nadu
Networking People with AIDS/HIV Vs.Respondent: Union of India (UOI) rep. by the Secretary,
Department of Industrial Policy and Promotion, Ministry of Industry and Commerce, Controller
General of Patents and Designs, Assistant Controller of Patents and Designs and F. Hoffmann-La
Roche AG (2009 (1) CTC32)
3. Mr. X v. Chairman, State Level Police Recruitment Board, Tamil Nadu (2006 (2) ALT 82)
4. Naz foundation v. Govt of NCT of Delhi (2010 CriLJ94)
5. Chotulal Sambhai v. State of Gujrat
6. Mr. Badan Singh v. Union of India & anr
7. X. v. Bank of India
8. G v. New India Insurance India Company Limited

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Rights of HIV/AIDS patients:
Right to treatment
Right to treatment has been held as one of the basic fundamental rights of the HIV patients. Any
kind of treatment can’t be denied to any patient on the basis of his/her suffering from HIV/AIDS.
Any such denial to the patient shall amount to discrimination. The Supreme Court of India has
issued directions to make HIV/AIDS patients receive treatments free of cost.

Right to confidentiality
A person diagnosed with HIV/AIDS has the right to keep his/her HIV/AIDS status confidential.
The courts too have kept this thing in mind and while delivering judgements have used pseudo
names and not the name of the parties. Such a freedom provided to the HIV/AIDS patients
support their right to a dignified life, a basic fundamental right guaranteed by the virtue of article
21 of the Constitution of India.

Right to employment and right against discrimination at workplace

The basic of all the fundamental rights guaranteed by the constitution of India is the right against
discrimination. Each citizen, which includes those suffering from HIV/AIDS have right to equal
treatment which also extends to the equal job opportunities and not discriminated on the grounds
of their suffering from HIV/AIDS.

NACO Guidelines against pre-screening tests conducted on perspective employees:

The National AIDS Control Organization has issued a comprehensive HIV testing policy, which
provides that any sort of mandatory HIV testing should be done only after an informed and a
valid consent for providing any sort of employment opportunity in any private firms.

Remedy available in case of any discrimination or denial of facilities:

In a situation wherein a HIV/AIDS patient is denies any sort of the basic rights provided such
have the liberty to approach the courts to get his/her rights enforced. The court shall maintain the
confidentiality of the petitioner as well as issue directions to restore the usurped rights of the
person suffering from the HIV/AIDS.

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Case Study:
LX v. Union of India
In the given case, a person LX was diagnosed HIV+ was denied the AntiViral Therapy(ART)
aginst AIDS after his release from the prison. In a petition brought before the Delhi High court
by him, the court ordered the government to continue to provide ART to LX. In another similar
matter a pregnant lady infected with HIV+ was denied treatment by the hospital. In a petition
brought by her husband, the Delhi high court immediately ordered the hospital authority to treat
the lady and arrange for a unit of blood from any authorised blood bank.

Mr. X v. Hospital Z
In the given matter the Supreme Court held that the patients suffering from AIDS deserve full
sympathy and are entitled to all respect as human beings. Any person suffering from such disease
can’t be denied jobs on the basis of their suffering from HIV/AIDS. The court also interpreted
that such confidentiality included as a part of the medical ethics incorporated by the medical
councils act. In another case of Mr. X v. Hospital Z the Supreme Court ruled that the persons
suffering from HIV/AIDS had also a right to marry as a fundamental right enshrined by the
virtue of Article 21 read with article 14 of the Constitution of India.

MX v. ZY
The Bombay High Court held that no person could be deprived of his/her livelihood except the
procedure established by the law, which includes the procedure must be just , fair and reasonable
not violating the principles of natural justice. The court also said that if the person is fit to carry
out the job and has no potential to infect any of the persons working with them, the person has
got a full right to the work and can’t be denied job merely on the facts of him/her suffering from
HIV/AIDS. The court further said that a person’s HIV status can’t be a ground for rejection for
employment as it would be discriminatory and would violate the rights enshrined under the
articles 14, 16 and 21 of the constitution of India. In Mr. X v. DGP, the Bombay high court held
that there should be immediate remedy granted to the wife of the deceased husband who died due
to the suffering from AIDS. Thus, it can be said that the courts have actively played a role
interpretation of the rights of HIV patients and granting them relief under Article 14, 16 and 21.

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Interpretation of Article 14 with context to the rights of the HIV patients:
Article 14 of the Constitution of India provides that the state shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India. The
nature of the right guaranteed is negative in nature, which prohibits the state from making any
sort of discrimination upon the citizens India. Employment opportunities are one of the basic
necessaties that must be provided to a person in order to live a life. Earlier, it was found that the
persons suffering from HIV/AIDS were denied employment opportunities on the grounds of their
suffering from the disease. The major issues involved in such conflicts are whether an employer
legitimately require HIV testing of a prospective or a current employee? Does an employer have
the right to personal information that the employee may not want to disclose? Can such
prohibition of not disclosing the medical facts be granted against private sector too?
The article 14 and 16 of the constitution gurantees the right and provide against discrimination in
employment respectively. But, the fundamental rights guranteed are always against the state and
not against a private individual? India is a form of liberal economy wherein the private sector is
providing more employment opportunities to people. The right if not protected against the
private individual could lead to violation of the basic rights of the persons from the HIV/AIDS.
As of now, there is no specific explicit employment law which prohibits that person having HIV
shouldn’t be provided equal job opportunities. In the case of ChotuLal Shambahi v. State of
Gujrat1, the petitioner was selected for the post of unarmed Police Constable and his name
figured in the selected list, but the petitioner was denied employment on the basis that he was
suffering from HIV+ and was not suitable for the job. The court held that the act of the
respondents was unconstitutional on the grounds of it being violative of Article 14 and 16 of the
Constitution of India. The apex court ruled that any person can’t be denied job opportunities on
the ground of him/her suffering from HIV+. In another case of Mr.Badan Singh v. Union of
India and Anr, the petitioner was dismissed from the job of a BSF jawan on the grounds of him
suffering from HIV+. The court, in the similar manner held such expulsion to be null and void.
However, in determining the rights against the private sector, the Supreme Court by
interpretation of article 14 has analysed that no person can be compelled to undergo the HIV test

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against his wish. Thus, the court through the interpretation of Article 14 coming forward in the
rescue of the rights of HIV patients against private parties.

Interpretation of Article 21 with context to the rights HIV patients:

India as of now is devoid of any explicit law dealing with confidentiality, though the courts have
constructed Article 21 to include this right to privacy, from which one can derive the right to
confidentiality. The first instance in the Supreme Court where the court ruled such right to be an
integral part of the Article 21 was in the case of Mr. X v. Hospital Z2 where the petitioner
donated his blood and upon examination it was found that the petitioner was suffereing from
HIV+. The Hospital having disclosed the fact to the would be wife of the petitioner, such act of
the hospital was held to be violative of Article 21 and the court laid down the concept that Right
to life includes right to live with dignity. The justification as put forward by the Supreme Court
was highly influenced by the judgement of the American Court in the judgement of Roe v. Wade
and article 8 of the European Convention on Human Rights wherein the right to privacy was
allowed when the “health or ,morals or…. Rights and freeom”3 were at stake.
In the case of M Vijaya v. Chairman, Singareni Collieries Hyderabad4 is a which highlights
judiciary stand on confidentiality. The petitioner was an employee of the Singareni Colleries for
17 years. Upon going through the hysectomy at the Company’s hospital in January,1998 she was
contaminated with HIV with the blood donated by her husband. The court held that such act
should have been mentioned by the respondent who knew that upon such transfer the other
person may be affected by contamination of the virus filled blood.
In the case of MX of Bombay Inhabitant v. M/s ZY5 the has held that person can’t be regarded as
medically unfit and denied employment merely on the grounds that he/she is found to be a HIV+
patient upon diagonisis. The courts have interpreted the words of article 21 of the constitution
which provides the Right to life a fundamental right, does not just means that the state should
take care of the lifes of its subjects but, it means that the right to life meant right to a dignified
life in a society.

2
1998 8 SCC 296
3
Mathew Coles, Mandatory Pre-Marital HIV testing: A record of failure, American Civil Liberties
4
(2002) A CC 32
5
AIR 1997 Bom 406

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Conclusion:
After analyzing the contours of various High Court and Supreme Court judgments, certain
observations are to be made on what more the courts can do to further extend rights of
PLHAs.

First, it is possible to use courts to advance the rights of persons living with
HIV/AIDS. This is however not conclusive as highlighted in earlier sections of the papers.

Second it is possible to go to court to fight for one’s rights without having one’s status revealed
publicly. This is done through the use of the lightning rod of public interest litigation.

Third, the judiciary needs to be educated about HIV/AIDS. Two points on this issue have been
noted on this case, one on how the judiciary has relied on scientific data to buttress their points
while at the same time(MX of Bombay Case), using selective case law to impinge on the right
of PLHAs. Finally the fact that one set of judges might have decided from a different angle
throws light on the need for a specific legislation to protect the rights of persons living with
HIV/AIDS.

This approach might seem optimistic, however we are witnessing a change in mind sets,
namely in light of the recent, more oft quoted Naz Foundation Judgment of the Delhi
HighCourt. The author would finally suggest that in order to avoid such discrepancy in
decisions regarding rights of PLHAs, it is best a specific legislation be drafted to protect and
widen their rights, hopefully bringing them on par with citizens who have been guaranteed the
all important protection of right to life under Article 21 of the Indian Constitution.

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Bibliography:
Website Material
1. HelpLine Law. (2016) Rights of HIV patients in India. Retrieved October 5, 2016 from
http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-
india.html
2. Legalservice India. (2016) Human Rights Perspective on HIV/AIDS Vis-à-vis Right to
employment of persons living with HIV/AIDS. Retrieved October 5, 2016 from
http://www.legalserviceindia.com/articles/hu_aids.htm
3. Lawyers Collecive. (2015) Judgements and Orders related to HIV/AIDS patients. Retrieved
October 5,2016 from http://www.lawyerscollective.org/hiv-and-law/judgements-a-orders.html

Books
1. Basu, Durga Das (2015) Commentry on the Constitution of India (Part 2) (9th Edition).
Gurgaon, Lexis Nexis
2. Basu, Durga Das (2015) Commentry on the Constitution of India (Part 5 ) (9th Edition).
Gurgaon, Lexis Nexis
3. Bakshi, P.M. (2011) The Constitution Of India ( 11th Edition) Universal Law Publishing Co.
pvt.ltd, New Delhi
4. Jain, M.P. (2010) Indian Constitutional Law (6th Edition) LexisNexis, Gurgaon
5. National Human Rights Commission. (2011). Know your Rights (Know your rights series).
New Delhi, National Human Rights Commission
6. Shukla, V.N. (2016) Constitution of India (12th Edition) Easteren Book Company, Sector 64,
NOIDA

Legal Database
1. www.manupatra.com
2. www.scconline.com
3. www.westlawindia.com
4. www.jstor.org

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