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Employment of HIV Positive Persons: A Case in Point
Since the inception of the HIV epidemic, persons living with HIV/AIDS have faced unprecedented stigma and discrimination in all spheres of life. In employment settings, persons living with HIV have consistently either been denied jobs or been removed from employment. Though case law upholding the right of persons living with HIV/AIDS to employment and government policy has led to a growing understanding of the rights of HIV-positive persons, their recruitment in the police and armed forces remains a contentious issue. One of the key reasons for this has been the assumption that HIV-positive persons are unable to meet the higher fitness requirements of these jobs. This very issue came up before the Karnataka Administrative Tribunal, which in September 2005, in a path breaking decision held that HIV-positive people have a right to be employed in the police force. This judgment of the Tribunal in RR vs. Superintendent of Police & others (2005) is a clear recognition of the rights of HIV-positive persons to employment. The decision will also help break myths surrounding the employment and capabilities of HIV-positive persons, particularly in relation to the police forces. Background In the year 1994, the Director General and Inspector General of Police of Karnataka, Bangalore issued a circular which provided that all candidates applying to the police, “should be subjected to blood tests, to know whether there are any cases with HIV positive before inducting the recruits into the force” and further that officers concerned with recruitment, “shall take all precautions to ensure that persons with HIV positive are not inducted into the force.” Pursuant to this circular candidates for various posts in the Karnataka police were tested mandatorily for HIV and were not recruited if found HIV-positive. One such candidate was RR* who, in 1998, applied through the employment exchange at Shimoga, a district in Karnataka, for the post of Police Constable (civil). RR was called for an interview after which he underwent a series of tests for physical fitness that he successfully completed. As a result RR was provisionally listed as a selected candidate and even received a letter from the Superintendent of Police, Shimoga to this effect. The letter also indicated that RR had to undergo a medical check up. On 22 March 1999 RR underwent a medical test. During the two days of medical tests, RR was tested for HIV not only without his consent but without any intimation whatsoever that such a test was going to be conducted on him for the purpose of assessing his physical fitness. In June of that year, RR received a letter canceling his temporary selection merely on the basis that he had tested HIV positive. Specifically, the letter said,
Aggrieved by the cancellation of his temporary selection, RR approached the Karanataka Administrative Tribunal for relief. The Karanataka Administrative Tribunal is set up under section 4(1) (2) of the Administrative Tribunal Act, 1985 to adjudicate disputes and complaints with regard to the recruitment and condition of services of persons appointed to public services and posts in connection with the affairs of the Union and the States and comprises judicial and administrative members. RR’s case In challenging the cancellation of his selection, RR challenged the circular of the Director General and Inspector General of Police, Karnataka, Bangalore and the pursuant cancellation order of his temporary selection as violative of Articles 14, 16 and 21 of the Indian Constitution. RR relied heavily on the decision of the Bombay High Court in MX vs. XY (AIR 1997 Bom 406), which upheld the right of HIV-positive persons to employment. Article 14 embodies the constitutional guarantee of equality; through case law developed over time under this Article, courts apply the objective classification, rational nexus and arbitrariness tests to determine whether particular government actions are discriminatory. Simply put, these tests state that any classification made should be made based on a objective criteria and such a classification should have a rational nexus to the object that the particular legislation or circular seeks to achieve and should not be arbitrary. RR using these tests stated that the classification made in the circular i.e. HIV-positive people and HIV-negative people was based on objective criteria. But the circular, who’s rational was to induct physically fit candidates, by assuming that HIV-positive candidates would not be fit or are unfit to work in the Police Forces is arbitrary and wrong. RR further challenged his disqualification based on his HIV status as violative of his right to livelihood guaranteed under Article 21 of the Indian Constitution. RR also claimed the violation of the principles of natural justice, as he was not given an opportunity to present his case before the concerned authorities. The Police Department’s Response The Police department in response submitted that RR’s selection was only temporary and was subject to medical examination. The department also argued that as per the Karnataka Civil Services (General Recruitment) Rules, 1977 they had a right to prescribe any requirement or standard for appointing people. The Department sought to justify the issuing of the circular by quoting Rule 12 of the General Recruitment Rules that state, “it is open for the government/authorities to prescribe standards required to be satisfied by a person for appointment to any services or post which are incidental as may be necessary”. In discussing the requirement of an HIV test for a person applying to become a police constable, the Department argued that police personnel are often required to be provided security for VIPs and in cases of emergency, such police personnel may need to provide blood. The Department adopted a line of argument common to many employers that RR being HIV-positive was likely to reach the stage of AIDS at the earliest which might render him unfit to work in the services. Decision of the Tribunal A division bench of the Karnataka Administrative Tribunal comprising a retired high court judge and an IAS officer, heard RR’s case after considering various decisions of the Supreme Court, the High Courts of Bombay and Gujarat, international judgments as well as documents and policies of India’s National AIDS Control Organisation and of the World Health Organisation decided in favour of RR. The Tribunal in its order examined in great detail various judgments including Mr. X vs. Hospital Z (1998 8 SCC 296), Chhotulal Shambahi Salve vs. State of Gujarat (unreported 2001), MX vs. XY (AIR 1997 Bom 406), D.S. Nakara and Others vs. Union of India (1983 1 SCC 305) and the judgment of the South African Constitutional Court in Jacques Charles Hoffmann vs. South African Airways CCT 17/00( 28 September 2000). In agreeing with RR’s contention that the circular was violative of the constitutional guarantee of equality, the Tribunal observed that,
The Tribunal directed that RR be provided employment as a Police Constable (Civil), and that all service benefits be given to him as if he was in service on the day of his rejection order. The Tribunal further took the radical step of directing that in case there was no vacancy in the Police services, the same should be created for RR. Pros and Cons It must be acknowledged that the decision of the Tribunal is radical and will go a long way in recognizing the rights not only of RR but also of persons living with HIV in general. The Tribunal not only accepted RR’s challenge to the circular requiring mandatory HIV testing of applicants and their non-employment in the police; it went a step further in directing the Police department to provide him with a job as duly deserved by him. Commendably, the Tribunal also ordered the Department to create a vacancy for RR if none existed. In the field of armed and police forces, the decision is of particular importance as it challenges the idea that persons living with HIV are not fit to serve in these services. While some countries and the United Nations have in their armed and police forces policies adopted the view that HIV status in and of itself is not an indication of fitness, most countries, including India continue to be reluctant to recruit persons living with HIV in these services. The grounds for this exclusion are similar to those raised by the Police Department in this case. While the precedent value of the Tribunal’s judgment is open to discussion being that of a quasi judicial body, its finding will, it is hoped, open up the debate on the recruitment of persons living with HIV in these services by providing a different view on this issue. In spite of the above, it cannot be forgotten that this radical decision took about five years to be rendered, as judges and benches were changed. It was a hard and emotionally draining task for RR to patiently await the decision of the Tribunal. Even after the long-drawn-out proceedings RR had to wait an additional four months before the Police Department finally implemented the Tribunal’s order and recruited him. In the end, RR achieved his goal of joining the Police services as a Police Constable (civil). But why the case was delayed by over five years remains an unanswered and serious issue. We must ask if it wasn’t possible for this matter to be decided earlier. While such questions are always in the minds of most litigants, they are especially relevant for HIV-positive litigants. It is important to understand that while persons living with HIV might face issues common to other litigants, the repercussions are different for them. A protracted legal battle means a drain on time, money and energy that is likely to seriously affect an HIV-positive person’s ability to pay for their healthcare and treatment and to continue the legal battle. It is vital that orders are delivered early for persons living with HIV to ensure that they are in a position to enjoy the benefits of these orders. *Names have been changed for protection of the HIV-positive individual’s identity.
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