Transmission of HIV is known to occur in three ways: (1)through intimate sexual contact with an infected person; (2)through invasive exposure to contaminated blood or certain other bodily fluids, or (3)through perinatal exposure (i.e., from mother to infant). Although HIV has been isolated in several body fluids, epidemiologic evidence has implicated only blood, semen, vaginal secretions, and possibly breast milk in transmission. Extensive and numerous studies have consistently found no apparent risk of HIV infection to individuals exposed through close, non-sexual contact with AIDS patients. Based on the accumulated body of medical evidence, the Surgeon General of the United States has concluded:
There is no known risk of non-sexual infection in most of the situations we encounter in our daily lives. We know that family members living with individuals who have the AIDS virus do not become infected except through sexual contact. There is no evidence of transmission (spread) of AIDS virus by everyday contact even though these family members shared food, towels, cups, razors, even toothbrushes, and kissed each other."
18.The Constitutional Court of South Africa in Jacques Charl Hoffmann Vs. South African Airways in Case CCT 17/00 had an occasion to deal with the question of disqualification of a person from being disqualified for employment solely on the ground that he tested to be HIV positive. The Court while granting relief in paragraphs 50 to 53 had observed as follows:
"[50]An order of instatement, which requires an employer to employ an employee, is a basic element of the appropriate relief in the case of a prospective employee who is denied employment for reasons declared impermissible by the Constitution. It strikes effectively at the source of unfair discrimination. It is an expression of the general rule that where a wrong has been committed, the aggrieved person should, as a general matter, and as far as is possible, be placed in the same position the person would have been but for the wrong suffered. In proscribing unfair discrimination, the Constitution not only seeks to prevent unfair discrimination, but also to eliminate the effects thereof. In the context of employment, the attainment of that objective rests not only upon the elimination of the discriminatory employment practice, but also requires that the person who has suffered a wrong as a result of unlawful discrimination be, as far as possible, restored to the position in which he or she would have been but for the unfair discrimination.
[51] The need to eliminate unfair discrimination does not arise only from Chapter 2 of our Constitution. It also arises out of international obligation.42 South Africa has ratified a range of antidiscrimination Conventions, including the African Charter on Human and Peoples' Rights.43 In the preamble to the African Charter, member states undertake, amongst other things, to dismantle all forms of discrimination.
Article 2 prohibits discrimination of any kind. In terms of
Article 1, member states have an obligation to give effect to the rights and freedoms enshrined in the Charter. In the context of employment, the ILO Convention 111, Discrimination (Employment and Occupation) Convention, 1958 proscribes discrimination that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. In terms of
Article 2, member states have an obligation to pursue national policies that are designed to promote equality of opportunity and treatment in the field of employment, with a view to eliminating any discrimination. Apart from these Conventions, it is noteworthy that item 4 of the SADC Code of Conduct on HIV/AIDS and Employment,44 formally adopted by the SADC Council of Ministers in September 1997, lays down that HIV status "should not be a factor in job status, promotion or transfer." It also discourages pre-employment testing for HIV and requires that there should be no compulsory workplace testing for HIV.
[52] Where a person has been wrongfully denied employment, the fullest redress obtainable is instatement.45 Instatement serves an important constitutional objective. It redresses the wrong suffered, and thus eliminates the effect of the unfair discrimination. It sends a message that under our Constitution discrimination will not be tolerated and thus ensures future compliance. In the end, it vindicates the Constitution and enhances our faith in it. It restores the human dignity of the person who has been discriminated against, achieves equality of employment opportunities and removes the barriers that have operated in the past in favour of certain groups, and in the process advances human rights and freedoms for all. All these are founding values in our Constitution.
[53] In these circumstances, instatement should be denied only in circumstances where considerations of fairness and justice, for example, dictate otherwise. There may well be other considerations too that make instatement inappropriate, such as where it would not be practical to give effect to it."
19.A similar question came to be considered by a division bench of the Bombay High Court in MX of Bombay Indian Inhabitant Vs. M/s.ZY and another reported in AIR 1997 Bom 406.The Bombay High Court after reviewing all the cases, in paragraphs 46 to 50 had observed as follows:
46. As a matter of fact, the policy statement states that pre-employment HIV/AIDS screening as part of the assessment of fitness to work is unnecessary and should not be required. Under the ultimate general recommendations, it is stated in view of the modes of HIV transmission, a seropositive person's fitness for work cannot be called into question by the purely theoretical risk of virus transmission, and any discrimination is unacceptable. That in the current state of knowledge, there is not evidence to suggest that neurological or neuropsychiatric disorders occur relatively early in the course of HIV infection. The is, therefore, no reason to exclude asymptomatic HIV seropositve individuals from certain job assignments in accordance with the recommendations formulated by the WHO, ILO expert and the Council of the European Communities. It is further recommended that the health personnel aware of a job applicant's HIV seropositivity base their decision solely on the actual capacity of the individual to satisfy the job requirements and in this context, only the usual aptitude tests and adherence to health and safety measurers are of any real value.
47. In fact, the international opinion on the subject of AIDS and the workplace as revealed from the various recommendations in the international conventions co-sponsored by UNESCO, WHO, ILO, the Council of Europe and the European Communities, among others, is against mandatory testing for HIV infection prior to employment, or during the employment.
48. Even in this country, the National AIDS Control Organisation has published a National HIV testing policy under the auspices of the Government of India. The said policy states that since during the prolonged asymptomatic carrier stage of HIV infection, one remains fully active physically and mentally which demands an appropriate intervention which maintains the life style, dignity and rights of the patient and at the same time reduces or eliminates transmission. In the ultimate recommendations, it is stated that any testing procedure without explicit consent of the patient/mandatory testing must be discouraged when it tends to identify an individual except in exceptional situations. Any kind of mandatory linked testing (unless otherwise required by the court) excepting blood unit (not necessarily the donor)should be discouraged which includes testing ..... pre or in-service employment screening or insurance procedure.
49. The circular dated 31-10-1991 issued by the respondent-Corporation shows that the management had decided to include inter alia HIV test for AIDS in addition to the existing test for fresh recruits in order to ensure that they do not have any serious communicable disease. The circular dated 8th April, 1993 reiterating the directions in the earlier circular dated 31-10-1991 in para 2 additionally provides that it has been now decided that HIV test for AIDS (ELISA) is mandatory test for pre-confirmation. In para 4, the circular states that if the employee is found to be HIV positive by ELISA test, his services will be terminated. Thus, the respondent-Corporation, has framed a rule, which denies employment to the fresh recruits and which enables the Corporation to terminate the services of the employee solely on the ground that the employee is found to be HIV positive irrespective of the fact that such a person is able to carry out the job requirements or, that such person does not pose any threat to persons and property at the workplace.
50. If the person who is HIV positive and on that count is disabled to perform the normal job requirements, or if such a person poses a risk to other persons working with him or to persons coming into his contact at the work place, he could be justifiably and lawfully denied employment on the ground that he is "medically unfit". However, the overwhelming medical opinion and the opinion of persons qualified in the field show that, firstly, that except through sexual intercourse and blood transfusion, there is no risk of transmission of HIV. Secondly, during asymptomatic period, the person may continue to be healthy and capable of performing the job requirements for a number of years which may range upto 18 years."
20.Thereafter, a division bench of the Andhra Pradesh High Court vide its judgment in Mr.X, Indian Inhabitant Vs. Chairman, State Level Police Recruitment Board and others reported in 2006 (2) ALD 513 had to deal with the vires of the Order 70(3) of the A.P. Revised Police Manual which directed the candidates selected provisionally as stipendiary cadet trainees by direct recruitment invariably to undergo a medical examination for the HIV test and to produce the certificate and the candidates having HIV positive will not be able to be appointed. While striking down the said rule, in paragraphs 43 to 46, it was observed as follows:
"43. At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the right or interests of the victim of the discrimination have been affected, and whether the discrimination has impaired the human dignity of the victim, (Jacques Chart Hoffmann (supra 3).
44. On medical evidence, available as at present, it is clear that not all persons living with HIV are prone to contracting infectious diseases - it is only those persons whose infection 'has reached the stage of immune suppression, and whose CD4 count has dropped below 350 cells per microlitre of blood. The conduct of the respondents towards those police officers, who are already in its employ is irreconcilable with the stated purpose of its executive instructions. It is not the case of the respondents that it tests those already employed in the police establishment for HIV/AIDS. They may continue to work despite the infection, and regardless of the stage of the infection. Yet they may pose the same health, safety and operational hazards as prospective police officers. Apart from this, the practice also pays no attention to the window period. If a person happens to undergo a blood test during the window period, he would test negative and can thus secure employment. But if the same person undergoes the test outside of this period, he or she will test positive and not be employed.
45. Order70(3) of the A.P. Revised Police Manual undoubtedly discriminates, those persons who have tested HIV positive seeking appointment in the police force vis-a-vis those tested HIV positive after appointment in the police establishment and those tested during the window period, and falls foul of the equality clause enshrined in Articles 14 and 16 of the Constitution of India. If all HIV positive patients are to constitute a class, there cannot be a further classification between those who are already employed, those who were tested during the window period and after appointment were found to be HIV positive and those who after being tested HIV positive seek appointment in services under the State as they satisfy the prescribed physical and other standards.
46. The fact that some people found to be HIV positive may, under certain circumstances, be unsuitable for employment in the police force does not justify the exclusion from employment of all people who are living with HIV. Were this to be the case, people who are HIV positive would never have the opportunity to have their medical condition evaluated in the light of current medical knowledge for a determination to be made as to whether they are suitable for employment in the police force. On the contrary, they would be vulnerable to discrimination on the basis of prejudice and unfounded assumptions. This is manifestly unfair. The constitutional right of the petitioner not to be unfairly discriminated against cannot be determined by illinformed public perception regarding persons with HIV. Prejudice can never justify unfair discrimination. People who are living with HIV must be treated with compassion and understanding. They must not be condemned to "economic death" by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. Not all people who are living with HIV are unsuitable for employment. It is only those whose CD4+ count has dropped below a certain level who may become unsuitable for employment. Having regard to all these considerations, denial of employment to the petitioner, who had fulfilled the prescribed physical and other standards, only because he was tested HIV positive impaired his dignity and constituted unfair discrimination. (Jacques Chart Hoffmann (3 supra)). Since Order 70(3) is patently arbitrary, irrational and discriminatory. It is ultra vires Articles 14 and 16 of the Constitution of India. As a result no person can be denied employment solely on the ground that he has tested HIV positive." (Emphasis added)
21.The Union of India had evolved a National Policy on HIV/AIDS and the Word at Work released by the Ministry of Labour and Employment. The said policy came to be evolved after taking into account various international standards. The guiding principles governing employer is set out in paragraph 3.4 of the National policy. It is relevant to extract the paragraphs regarding non discrimination, no screening for purpose of employment and confidentiality which may have relevant for the present case on hand, which reads as follows:
"3.4 Guiding Principles The policy adopts the key principles of the ILO Code of Practice on HIV/AIDS and the World of Work that is in line with the Government of India.sNational HIV/AIDS policy. The ten principles are:
.....
II Non-discrimination There should be no discrimination or stigmatization of workers on the basis of real or perceived HIV status. Discrimination and stigmatization of people living with HIV/AIDS inhibits efforts aimed at promoting HIV/AIDS prevention.
.....
VI No Screening for purpose of Employment HIV/AIDS screening should not be required of job applicants or persons in employment or for purposes of exclusion from employment or worker benefits. In order to assess the impact of HIV, employers may wish to do anonymous, unlinked HIV prevalence studies in their workplace. These studies may occur provided it is undertaken in accordance with the ethical principles of scientific research, professional ethics and the protection of individual and confidentiality. Where such research is done, workers should be consulted and informed that it is occurring. Testing will not be considered anonymous if there is a reasonable possibility that a person's HIV status can be deduced from the result.
VII Confidentiality There is no justification for asking job applicants or workers to disclose HIV- related personal information. Nor should co-workers be obliged to reveal personal information about fellow workers.
Personal data covered by medical confidentiality should be stored only by personnel bound by rules on medical secrecy and should be maintained apart from all other personal data.
In case of medical examination, the employer should be informed only of the conclusion relevant to the particular employment decision. The conclusions should contain no information of a medical nature. They might as appropriate, indicate fitness for the proposed assignment or specify the kinds of jobs and the conditions of work which are medically contra-indicated, either temporarily or permanently.
22.If it is seen in the light of this, then the action of the respondent State owned Transport Corporation in driving the petitioners to test for HIV itself was totally repugnant to the National Policy. Their further attempt to deny them employment after having found HIV positive and holding them as unfit for employment is again not only unwarranted and also contrary to the dictum laid down by various courts and the policy evolved by the Union of India. The test result produced does not show that their CD4 count had dropped a particular level as found by the Andhra Pradesh High Court in the case referred to above. There is no indication that this was done by the the specilised laboratory which had the facility to find out the fitness of a person being employed. It is only a general practitioner who had certified their unfitness to work solely on the ground that in the first case, the petitioner was tested for HIV positive I and II and in the second case, HIV positive for 1. The CD 4 count was not furnished in the laboratory report referred to by the medical practitioner.
23.In this context, it is necessary to refer to a judgment of the Supreme Court in Mr.'X' Vs. Hospital 'Z' reported in 1998 (8) SCC 296, wherein the Supreme Court after referring to various international decisions (some of them have been referred to above), held that such persons who are afflicted with AIDS have right to avocation and that Government jobs and services cannot be denied to them. Hence it is necessary to refer to paragraph 45 of the said judgment which reads as follows:
"45."AIDS" is the product of undisciplined sexual impulse. This impulse, being a notorious human failing if not disciplined, can afflict and overtake anyone howsoever high or, for that matter, how low he may be in the social strata. The patients suffering from the dreadful disease "AIDS" deserve full sympathy. They are entitled to all respect as human beings. Their society cannot, and should not be avoided, which otherwise, would have a bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions. (See: School Board of Nassau Country, Florida V. Airline; Chalk V. USDC CD of Cal.; Shuttleworth V. Broward Cty.; Raytheon V. Fair Employment and Housing Commission, Estate of Chadbourne. But "sex" with them or the possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object." (Emphasis added)
24.A survey of the above decisions both national and international and also the National policy on HIV/AIDS regarding employment opportunity,clearly show that the course adopted by the contesting respondent transport Corporation in denying employment to the petitioners are not based on any scientific basis. The certificates relied on by the respondent corporation does not help the case of the respondent. On the other hand, it is only a pedestrian understanding of AIDS and HIV. The respondents in their counter affidavit had only expressed layman apprehension with reference to the disease and not shown a scientific approach consistent with the constitutional principles laid down by the Courts. The respondents were clearly not adhering to the national policy on HIV and AIDS as set out above. Not only they were wrong in sending them to get tested for AIDS, but also only on the basis of the medical practitioner's report without there being any specific finding that their counts in the blood samples will totally disqualify them for holding the post of drivers cannot be supported. Being engaged in a public service, they are likely to come into contact with passengers/traveling public cannot by itself disqualify the persons having tested HIV positive. On the other hand, there must be specific finding that persons having the disease with so contagious and that he had become unemployable. But, there is no test for CD 4 count dropping below 350 cells per microlitre of blood which alone can be the scientific test for negativing such candidate from employment and not every case of being tested for HIV positive.
25.In the light of the above, this court has no hesitation to allow both the writ petitions. Accordingly, both writ petitions will stand allowed. The impugned order will stand set aside. The respondent State owned transport Corporation is directed to employ the petitioners as drivers as there is no other disqualification expressed by them in the records and the disqualification is solely emanated from the medical certificate given by one medical practitioner. If respondent Corporation still has an apprehension that the two petitioners are tested to be HIV positive, they can send the petitioners for the test before their confirmation to find out whether the CD 4 count had dropped below 350 cells per microlitre of blood. This is the standard test adopted even by the Indian Army. Such standards have been approved in the judgments of the Andhra Pradesh High Court and the Bombay High Court referred to above. This order shall be implemented by the contesting Tamil Nadu State Transport Corporation within a period of eight weeks from the date of receipt of copy of this order. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
vvk To
1.The Secretary to the Government, Transport Department, Government of Tamil Nadu, Fort St. George, Secretariat, Chennai-600 009.
2.The Principal Secretary (Health & FW) Department of Health & Family Welfare, Government of Tamil Nadu, Fort St. George, Secretariat, Chennai-600 009.
3.The General Manager, Virudhunagar Region, Tamil Nadu State Transport Corporation (Madurai) Ltd., No.6/377,MAdurai Bye Pass Road, Virudhunagar-626 001 Virudhunagar District.