Health Law Notes

Decisions of Indian Courts with respect to matters pertaining to HIV-AIDS

● X v. Hospital Z, AIR 2003 SC 664

It is open to the hospital or the Doctor concerned to reveal such information
pertaining to the HIV status of the patient to persons related to the girl whom he
intended to marry and she had a right to know about the HIV positive status of the
appellant.1

● Sahara House v. Union of India, (2007) 9 Scale 619

In this case, the petitioner submitted that number of estimated HIV / AIDS patients
are 5.2 million and according to the Government the HIV / AIDS patients are 2.7
millions and out of them 10% require ART treatment and Government is not
releasing sufficient funds even though so many Multi National Voluntary
Organizations are willing to provide financial assistance to the Government of India
for the purpose. The Supreme Court held that it is the discretion of Government of
India to accept such financial assistance.

● Sahara House v. Union of India, (2014) 14 SCC 528

In this case, the petitioners challenged National AIDS Control Organisation's
Directives by which Second Line treatment was being made available only to certain
specified categories of persons based on identified and specified criteria and also
pleaded to provide such treatment free of cost without regard to geographical
location, current registration with ART Centres, length of time on first line ART or any
other condition. The Supreme Court held that Quarterly Anti-Retroviral Reporting
Format for private sector needs to be immediately supplied through National AIDS
Control Organisation's to all private hospitals who in turn will fill up Reporting
Format, which is annexed to affidavit of Union of India. It was further directed that
the Anti-Retroviral Reporting Format to be posted on Website of NACO within two
days. Private hospitals were required to submit data to NACO within two weeks after
Format is put on Website. Medical Council of India was also directed to implement
the above directions within two weeks from Reporting Format being put on Website.
The Medical Council of India was in turn further directed to issue appropriate
directions to private Doctors, to furnish requisite information in ART Reporting
Format to NACO.

● Sahara House v. Union of India, (2014) 15 SCC 513

In this case, writ petition was filed with respect to the implementation of a Scheme.
Union of India filed an affidavit duly sworn to by Joint Director of National Aids
Control Organisation (NACO), New Delhi with a comprehensive report as to
measures to be taken by various hospitals (both Government and private), NGOs and

1 See also Dr. Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd., (1998) 6 Scale 230

-Dr. Kirandeep Kaur, Assistant Professor of Law

Health Law Notes

other associations connected with treatment to be given to HIV / AIDS patients and
Government of India (Ministry of Health & Family Welfare) had already issued an
Office Memorandum dated 26-8-2008 to this effect and same had been sent to all
State Governments/Union Territories for implementing the Scheme. The Supreme
Court directed all State Government/Union Territories to comply with the directions
and submit a progress report to this effect within a period of four months.

● Naz Foundation (India) Trust v. Union of India, (2017) 6 Scale 500

In the present writ petition before the Supreme Court it was pleaded that inclusion
of HIV affected Children should be made within definition of "child belonging to
Disadvantaged Group" as defined under Section 2(d) of the Right of Children to Free
and Compulsory Education (RTE) Act, 2009. The Supreme Court held that in the
absence of any objection, we direct all other State Governments and Union
Territories to issue the necessary notification.

● Shiddanagouda v. State of Karnataka, (2015) 4 Law Herald (SC) 3123

It had come on record that the appellant was HIV positive and was being treated for
HIV and advanced AIDS. A Medical certificate issued by a competent doctor dated
17.03.2007 stated that the doctor was of the opinion that the appellant required
Anti-Retroviral Treatment, and that it was essential that the Treatment be provided
continuously for the management of the disease. No minimum sentence is
prescribed under Sections 279 and 304A of the I.P.C. Keeping these aspects of the
matter in view, while confirming the conviction for the offences punishable under
Sections 279 and 304A of the I.P.C., the Supreme Court modified the sentence to the
period already undergone. The Supreme Court, however, further observed that this
order was not be treated as precedent in any other case.

● National Legal Services Authority v. Union of India, (2014) 5 SCC 438

The Supreme Court in this case held that the members of the transgender
community (neither males nor females) should be treated as the Third Gender. They
are entitled to equal rights like any other citizen of India. The Supreme Court inter
alia directed Centre and State Governments to operate separate HIV Sero-
survellance Centres since Hijras/Transgenders face several sexual health issues.
“Transgender people, as a whole, face multiple forms of oppression in this
country. Discrimination is so large and pronounced, especially in the field of
health care, employment, education, leave aside social exclusion. A detailed
study was conducted by the United Nations Development Programme (UNDP
- India) and submitted a report in December, 2010 on Hijras/transgenders in
India: "HIV Human Rights and Social Exclusion". The Report states that the
HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI)
is now increasingly seen in Hijras/transgenders population. The estimated
size of men who have sex with men (MSM) and male sex workers population
in India (latter presumably includes Hijras/TG communities) is 2,352,133 and

-Dr. Kirandeep Kaur, Assistant Professor of Law

Health Law Notes

235,213 respectively. It was stated that no reliable estimates are available for
Hijras/TG women. HIV prevalence among MSM population was 7.4% against
the overall adult HIV prevalence of 0.36%. It was stated recently Hijras/TG
people were included under the category of MSM in HIV sentinel
serosurveillance. It is also reported in recent studies that Hijras/TG women
have indicated a very high HIV prevalence (17.5% to 41%) among them. Study
conducted by NACO also highlights a pathetic situation. Report submitted by
NACI, NACP IV Working Group Hijras TG dated 5.5.2011 would indicate that
transgenders are extremely vulnerable to HIV. Both the reports highlight the
extreme necessity of taking emergent steps to improve their sexual health,
mental health and also address the issue of social exclusion.”

● MX of Bombay Indian Inhabitant. v. M/s. ZY, AIR 1997 Bom. 406

It was held that a person suffering from HIV positive, cannot be rendered "medically
unfit" solely on that ground so as to deny him employment. Result of the test for
medical fitness prior to employment or even during employment has to be
correlated to his ability to perform normal job requirements and risk of health
hazard to others at the work place, not at the time of employment. In the Pre-
employment test for medical fitness, the petitioner though tested HIV positive but
found fit for his normal duty of loading of drums in the trucks and not likely to pose
any threat or risk to any persons at the work place. He was not likely to develop
symptoms of AIDS for 8 to 10 years - Order of deleting his name from the panel of
casual labourers to be regularised or absorbed held to be arbitrary, unjust and
unlawful and set aside.
“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 the rigour of Article 14. The rule providing that 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 person it 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
workplace. The persons who are rendered incapable, due to the 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 through the normal activities at the workplace, can
he reasonably and justifiably denied employment of discontinued from the
employment inasmuch 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 workplace. 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 interest of other persons

-Dr. Kirandeep Kaur, Assistant Professor of Law

Health Law Notes

at thee workplace during his normal activities cannot be included in the

aforesaid class. Such inclusion in the said class merely in the ground of having
an ailment is, obviously, arbitrary and unreasonable.”

● Ex-Const Badan Singh v. Union of India, (2002) 8 AD (Delhi) 553

In this case, pensionary benefits were denied on ground that the employee had not
completed 10 years qualifying service when he was declared medically unfit for
retention in service of BSF as suffering from HIV. No effort was made to give him
some alternate job to enable him to complete minimum qualifying service nor any
minimum qualifying service prescribed for such cases. The respondents were
directed to pay invalid pension to the petitioner from the date of termination with
costs of litigation Rs. 5000/- for showing callousness and unsympathetic view by the
authority.
“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.
The fact is that this disease is spreading like wildfire in the developing
countries, and in India it has assumed alarmingly epidemic proportions. This
indicates that it may be the consequence Governmental failure, albeit for
paucity of adequate funds, to bring about social awareness on the risks and
dangers endemic in careless conjugation. It is now also sufficiently
documented that AIDS is communicable not only through sexual contact but
also through blood transfusion. For this reason I had specifically recorded that
it had not been pressed by the Petitioner that he had contracted AIDS for no
fault of his own, or for reasons attributable to service. A reading of Rule 38 of
the Pension Rules, however, significantly discloses that grant of invalid
pension is not dependent on whether the bodily or mental infirmity which
permanently incapacitates the concerned person was contracted or suffered
in the course of service. All that the rule envisages is that the person should
be incapacitated for service. In this vital aspect, these rules are not similar to
rule 48 of the Defence Services Regulations which stipulates that disability
pension is admissible when an officer is retired from military service on
account of a disability which is attributable to or aggravated by such service.
It is quite clear that in the case in hand no effort was made by the BSF to
investigate whether the petitioner, inspite of his Medical affliction, could be
given some other duties to perform, at least so as to enable him to fulfil the
minimum 10 years service and become eligible for pension. It is quite possible
that the absence of a sympathetic if not a compassionate handling of the
case was because the disease in question is AIDS. I find it necessary to
emphasise that no person would willingly contract AIDS. Keeping in view the

-Dr. Kirandeep Kaur, Assistant Professor of Law

Health Law Notes

highly communicable instance and nature of this affliction, patients must be

treated with sufficient sympathy.”

-Dr. Kirandeep Kaur, Assistant Professor of Law