Tipnis, J.

Is it permissible for the State, under our Constitution, to condemn a person infected with HIV to virtual economic death before he must eventually meet his death due to the ailment is the question before us. The question is of great contemporary significance and importance.

2.The petitioner was working as a casual labourer with respondent no.1-Corporation, through a contractor in the year 1982. In 1984, the petitioner was interviewed for a vacancy against a regular post by the respondent-Corporation. However, the petitioner was not selected. In the year 1986, the petitioner was interviewed again by the Corporation and, thereafter, was employed as a casual labourer from 1986 till about 1994. The petitioner was required to sign a register/muster and was issued a muster card. In the year 1990, the petitioner was directed to go for a medical examination. The petitioner submitted himself to medical examination conducted by one Dr.V.S.Kulkarni who is a panel Doctor for the respondent-Corporation. Said Dr.Kulkarni referred the petitioner to various other specialists like Pathologist, Eye Specialist and also for lung test. There was nothing adverse revealed in the pathological report. The Eye Specialist certified that from the ophthalmic point of view, the petitioner is fit to do any work. The Doctor who examined the petitioner for lungs certified that no significant abnormality is detected in the examination of the petitioner. Although the petitioner was not appointed in a regular vacancy, he was included in the select list of persons to be appointed on a regular basis. It is the case of the petitioner that during 1991 to 1993, persons above as well as below the petitioner in the selection list were appointed in regular vacancies. On 1.9.1993, the petitioner was asked again to go for a medical test. Dr.Bhide certified after test for Australia Antigen that HBs Ag was absent. Dr.Bhide further certified that test for HIV (1 & 2) antibodies, revealed that HIV (1 & 2) antibodies were present. In respect of other tests like lung function, eyes, etc., the petitioner was found to be normal. The petitioner was also examined in the J.J. Hospital, Mumbai. The report of ELISA test showed HIV (1 & 2) positive for antibodies. The certificate of Dr.Alka Deshpande of J.J.Hospital states that the patient is fit for duty. However, she advised follow-up once a year. The certificate further mentions that the disease is a prolonged one. The patient after acquiring the infection can remain asymptomatic for a long time extending upto one to twelve years and the patient (petitioner) is presently asymptomatic. The Doctor further mentioned that as per the Governments policy, an employee cannot be discontinued because of his seropositivity. Dr.Gokhale, the panel Doctor of the respondent-Corporation, relying on the report of the J.J. Hospital, stated that the petitioner was examined at the J.J. Hospital. His HIV-1 and HIV-2 tests are positive for antibodies. As per the remarks of Professor of Medicine, Grant Medical College (Dr.Alka Deshpande), he is physically fit for duty and was advised repetition of blood test every year.

3.It appears that as the petitioner tested positive for HIV (1 & 2), the Senior Manager (Lube Complex), Trombay Unit of the respondent-Corporation, by notice dated 16.2.1994 deleted the name of the petitioner from selection panel of casual labourers with immediate effect. The petitioner wrote letters to the respondent-Corporation stating that otherwise he is fit for performance of his job, viz., loading drums on the truck and that it will take 8 to 10 years before he develops AIDS and he should be continued to be employed at least as a casual labourer. The petitioner submitted in that correspondence that he is the only earning member of the family and if he is not offered work, the whole family will find it difficult to survive. The petitioners also wrote to the Addl. Director of Health Services (AIDS), Government of Maharashtra, Mumbai, on 7.5.1994. After narrating all the facts, the petitioners stated that he is physically fit to do the duty. The petitioner submitted that he is the only earning member of the family, he is very poor, having wife and two children to look after. He requested the authority to direct the respondent-Corporation to allow the petitioner to continue to work as a casual labourer, if not as a regular employee of the Corporation. The Addl. Director of Health Services (AIDS), Government of Maharashtra, wrote a letter dated 7.3.1994 to the respondent-Corporation regarding the case of the petitioner. In the said letter, the Addl. Director of Health Services pointed out that though the petitioner is at present HIV positive, he may take 8 to 10 years to develop symptoms of AIDS. The Director mentioned that, as a matter of fact, it cannot be emphatically stated as to when he will develop the symptoms, but it is not likely to be earlier than 8 to 10 years. The Director drew the attention of the respondent-Corporation to the fact that HIV/AIDS is not transmitted by casual contact or by working together. It is transmitted only if blood of HIV positive is transfused to other person or if there is sexual intercourse with another person. The letter states that barring these two modes of transmission, the petitioner is not going to pose any risk to any of his colleagues where he is working or where he is likely to work in future. The letter further mentions that the guidelines of the Government of India under the National AIDS Control Programme are not to sack or remove any body from the services, whether private or public, only because of HIV status. The letter further states that keeping this scientific views in mind and also the need of support to the HIV positive person, the Director requested the Corporation to allow the petitioner to work in his capacity as a drum casual labourer as he was working previously. The Director specifically enclosed a copy of Health Education material for the perusal of the Corporation. The last para records the gratitude of Dr.Salunke, Addl. Director of Health Services (AIDS), Government of Maharashtra, for the promise given by the Director of the respondent-Corporation that he will issue necessary instructions to take back the petitioner on job to avoid hardship to the petitioner only because of his HIV status.

4.Literature of the World Health Organization is annexed to the petition and compilation thereof is also produced. The resolution passed by the Forty first World Health Assembly under the auspices of the World Health Organisation Global Programme on AIDS at Geneva on 13th May 1988 shows that inter alia it was strongly convinced that respect of the human rights and dignity of HIV infected people and people with AIDS and of members of population groups, is vital to the success of National AIDS prevention and control programmes and of the global strategy. It urged the Member States, particularly in devising and carrying out National programmes for the prevention and control of HIV infection and AIDS to protect the human rights and dignity of HIV infected people and to avoid discriminatory action against and stigmatization of them in the provision of services, employment and travel.

5.A Consultation on AIDS and the Workplace was convened in Geneva by the World Heald Organisations Global Programme on AIDS in association with the World Health Organisations office of Occupational Health and the International Labour Office between 27th and 29th June 1988. Thirty-six participants from 18 countries attended, including representatives of Government, union, business, public health, medical, legal and health education. The general statement contained that infection with the Human Immunodeficiency Virus (HIV) and the Acquired Immunodeficiency Syndrome (AIDS) represent an urgent worldwide problem with broad social, cultural, economic, political, ethical and legal dimensions and impact. In introduction, it is stated as under:-

"Epidemiological studies from throughout the world have demostrated that the human immunodeficiency virus (HIV) is transmitted in only 3 ways :

(a)through sexual intercourse (including semen donation);

(b)through blood (principally blood transfusions and non-sterile injection equipment; also includes organ or tissue transplant)

(c)from infected mother to infant (perinatal transmission).

There is no evidence to suggest that HIV transmission involves insects, food, water, sneezing, coughing, toilets, urine, swimming pools, sweat, tears, shared eating and drinking utensils or other items such as protective clothing or telephones. There is no evidence to suggest that HIV can be transmitted by casual person-to-person contact in any setting.

HIV infected and AIDS (HIV/AIDS) are global problems. At any point in time, the majority of HIV-infected persons are healthy; over time, they may develop AIDS or other HIV-related conditions or they may remain healthy. It is estimated that approximately 90% of the 5-10 million HIV-infected persons worldwide are in the economically productive age-group. Therefore, it is natural that questions are asked about the implications of HIV/AIDS for the workplace.

In the vast majority of occupations and occupational settings, work does not involve a risk of acquiring or transmitting HIV between workers, from worker to client, or from client to worker. This document deals with workers who are employed in these occupations. Another consultation to be organized by the WHO Global Programme on AIDS will consider those occupations or occupational situations, such as health workers, in which a recognized risk of acquiring or transmitting HIV may occur."

6.The policy principles adopted in the very document states that protection of the human rights and dignity of HIV-infected persons, including persons with AIDS, is essential to the prevention and control of HIV/AIDS. Workers with HIV-related illness, including AIDS, should be treated the same as any other worker with an illness. Most people with HIV/AIDS want to continue working, which enhances their physical and mental well-being and they should be entitled to do so. They should be enabled to contribute their creativity and productivity in a supportive occupational setting.

7.In respect of persons applying for employment, the policy statement in the said document states that pre-employment HIV/AIDS screening as part of the assessment of fitness to work is unnecessary and should not be required. Screening of this kind refers to direct methods (HIV testing) or indirect methods (assessment of risk behaviours) or to questions about HIV tests already taken. Pre-employment HIV/AIDS screening for insurance or other purposes raises serious concerns about discrimination and merits close and further scrutiny.

8.In the document entitled "AIDS and the Workplace _ General Recommendations" regarding fitness for work, it is observed as under :-

"1.In view of the modes of HIV transmission, a seropositive persons fitness for work cannot be called into question by the purely theoretical risk of virus transmission, and any discrimination is unacceptable.

2.In the current state of knowledge, there is no evidence to suggest that neurological or neuropsychiatric disorders occur relatively early in the course of HIV infection. There is, therefore, no reason to exclude asymptomatic HIV seropositive individuals from certain job assignments in accordance with the recommendations formulated by the WHO, ILO expert and the Council of the European Communities.

3.It is recommended that health personnel aware of a job applicants HIV seropositivity base their decision solely on the actual capacity of the individual to satisfy the job requirements. In this context, only the usual aptitude tests and adherence to health and safety measures are of any real value.

4.Routine screening for HIV seropositively in the work context must be prohibited: it is recommended that the WHO/ILO experts statement and the conclusions of the Council of European Communities act as guidelines."

9."Conditions of Work Digest" Vol. 12.2/1993 on page 53 states as under:-

"In 1990, an international meeting on the subject of AIDS and the workplace, which was co-sponsored by UNESCO, WHO, ILO, the Council of Europe and the European Communities, among others, adopted recommendations against mandatory testing in the workplace. These recommendations note that "the recognized modes of HIV transmission make it clear that no risk of infection from seropositive persons exists in the vast majority of occupational settings. HIV seropositivity does not affect an individuals fitness to work: there is no reason to refuse work to seropositive employees who remain able to perform their job duties and any discrimination is unacceptable". With respect to testing, the recommendations state that "HIV screening in the workplace or for purposes of employment should not be undertaken... HIV screening should not be required for employees, candidates for employment or others to enter or reside in another country."

10.In an article "HIV/AIDS and discrimination in workplace: The ILO perspective" by Louis Ndaba, Equality and Human Rights Coordination Branch, ILO, Geneva, the ten WHO/ILO principles inter alia include the following :-

"Pre-employment: HIV/AIDS screening as part of an assessment of fitness to work is unnecessary and should not be required.

Screening recruits for AIDS is undesirable. Why Because screening is futile, socially irresponsible, irrational and unfair. At the same time it is time-consuming and expensive. Pre-employment testing is futile because it cannot achieve what it sets out to do. It cannot guarantee a sanitized AIDS-free workplace. The test is not conclusive: there is a "window" period in which the presence of virus in the bloodstream is not revealed by the test. More significantly, an applicant who tests negative may contract the disease after being hired for the job and his or her condition will be hidden from the employer.

Testing for AIDS is socially irresponsible. If all employers screened out HIV positive people, a "leper colony" of unemployed and unemployable people would be created: the social consequences of this (alienation, deprivation, discrimination) are undesirable.

HIV positive job applicants may have years of constructive, healthy service ahead of them. To exclude them lacks a rational foundation and is unfair. They can be hired without compunction. When the symptoms eventually emerge and the sufferer becomes incapacitated, the usual employment laws amply protect the employer. No employer can be forced to retain someone who is unfit for the job, and this applies equally to AIDS sufferers.

Extracting and testing blood is both time-consuming and expensive. But the cost does not stop there: standard guidelines indicate that before the test is administered, employees should be counselled on its implications and, if it proves positive, they should be intensively counselled about the consequences of the disease. Are employers ready to pay for this counselling Or are they to cast the rejected applicant out on the street, jobless and without professional guidance and assistance Discriminatory testing is wasteful. The money spent on it could be better used on education and information on AIDS."

The article also refers to the provisions of reasonable arrangement. It is stated that HIV infection by itself is not associated with any limitation in fitness to work. If fitness to work is impaired by HIV-related illness, reasonable alternative working arrangements should be made. In conclusion, it is observed that the rights of HIV positive persons or persons with AIDS, especially in the labour and employment field, must be protected. This is not a only a moral imperative, but a public health principle: discrimination and stigmatization drive infected people away from the support, care and information they need, thus encouraging the spread of infection. It also prevents them from taking part in programmes to promote behavioural change among their peers. The only responsible answers to the AIDS epidemic lie in prevention, education and non-discrimination. It has been said that "the most significant obstacle to progress" against the AIDS epidemic is the threat of discrimination.