CHENNAI: Faced with such blatant discrimination, what does the law offer the Indian living with HIV?Raman Chawla is a Senior Advocacy officer at the Lawyers Collective, New Delhi, the organisation that formulated the original draft HIV/AIDS Bill with the Union Health Ministry. This is what he says: “Right now it is only under the Constitution that HIV+ people can find some legal protection. But only the public sphere is covered under this. If any discrimination happens in the private sector, right now there is no legal protection.”He adds that the Supreme Court in its landmark Unnikrishnan Judgment of 1993 had defined schools as a public sphere, so the Fundamental Right to Equality would apply to private schools as well. Chawla is hopeful the court would take this as a precedent in judgments to come, and add hospitals to the public sphere. Countries like Cambodia, Vietnam and Philippines have comprehensive HIV-specific rights-based legislation. Others such as USA, South Africa and Australia address issues related to HIV/AIDS through anti-discrimination, disability or public health legislation. India has no existing anti-discrimination legislation that would cover discrimination on the grounds of HIV. The HIV/AIDS Bill 2007, which is still pending, specifically prohibits discrimination related to HIV/AIDS both in the public and private spheres, Chawla says. Under the Bill, no person may be discriminated against in employment, education, healthcare, travel, insurance, residence and property, based on their HIV-related status.The landmark anti-discrimination case MX vs ZY in the Bombay High Court affirmed the rights of People Living with HIV/AIDS (PLHA) in the workplace. The judgment stated that if a person were fired from his or her employment solely because of his or her HIV+ status, it would be condemning the person to ‘Certain economic death.’In that historic judgment, the court ruled that a government/ public sector employer cannot deny employment or terminate the service of an HIV+ employee solely because of their HIV+ status, and any act of discrimination towards an employee on the basis of their HIV+ status is a violation of fundamental rights. The services of HIV+ employees can only be terminated if they pose a substantial risk of transmission to their co-employees or are unfit or unable to perform the essential functions of their job. The court also held that an HIV+ person can suppress their identity and use a pseudonym in the course of court proceedings to protect themselves from further discrimination.
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