live in the hope of a world that will be, if not free of
disease, free of fear and discrimination."
Late HIV/AIDS Activist
petitioners directly affected by the HIV/AIDS, epidemic from
the city of Mumbai, two of whom are HIV positive, have filed a
petition in the Bombay High Court seeking declarations from
the court on the issues of the right to marry of PWAs and
confidentiality in the medical setting. The petition arises in
response to critical queries raised by a judgment passed last
year by the Supreme Court of India reported as Mr. X v.
Hospital Z, (1998) 8 SCC 296. Copies of the aforementioned
judgment, petition and other related materials are available
at the Lawyers Collective website under the HIV/AIDS Unit
section at www.hri.ca/partners/lc or via e-mail at firstname.lastname@example.org.
petition is premised upon the affirmation that an HIV-positive
person should inform their partner of their HIV status. On the
issue of right to marriage, the petition argues that the right
to marry is a constitutionally protected right. The right to
marry can be and has been read into the right to life and
liberty guaranteed under Article 21 of the Constitution of
India. Moreover, the right to life and liberty has to be read
in the context of the Universal Declaration of Human Rights
and the International Covenant of Civil and Political Rights,
to both of which India is a signatory. These recognize the
right to marry and found a family as a fundamental human
right. Many other countries like the United States have not
only recognized the right to marry as a constitutionally
protected right, but have also struck down statutes and/or
regulations which sought to abridge that right. The petition
further argues that since the right to marry is a
constitutionally protected fundamental right, only a valid
statutory law passed by a competent legislature can abridge
it. Courts have no jurisdiction to abridge or suspend the
fundamental right to life and liberty. Furthermore,
restricting or suspending the right to marry for HIV-positive
persons is arbitrary, unjust and discriminatory in nature, and
violative of Articles 14 & 16 of the Constitution of
petition relies on studies that clearly show that PWAs can
lead normal, healthy lives for many years without any kind of
disability. In those cases where a HIV-positive person wishes
to get married with the informed consent of his/her
prospective spouse, no restriction should be placed on them,
especially considering the fact that transmission of HIV can
be prevented by following safe sex practices like the proper
and consistent use of condoms during sexual intercourse.
Significantly, many studies of discordant couples viz. where
one partner is HIV-positive and one is negative have shown
that by practicing safe sex methods consistently none of the
negative partners have become positive and live a normal
healthy life. Furthermore in terms of having children, peri-natal
transmission can be practically reduced to a negligible amount
through appropriate medical interventions. The implications
and impact of a person being HIV positive go far beyond
physical and mental health. An HIV-positive diagnosis is
accompanied with stigmatization, discrimination, often leading
to loss of employment, support from family and friends,
medical and social benefits. It is thus crucial for such a
person to have the support of a spouse. Relationships,
physical or sexual relations and procreation are natural forms
of human expression and are the natural rights of all human
beings. In the context of HIV/AIDS, marriage becomes even more
immanent for leading a healthy, stress free life.
petition further argues that legislative policy relating to
marriages does not make a marriage void in case of one of the
concerned parties has a communicable venereal disease. Though
having a communicable venereal disease is a ground for divorce
in many of the marriage laws, in none of the statutes
governing divorce, is this ground available for having the
marriage declared void, i.e. whereby the law does not
recognize the marriage in the first place or can be considered
to be annulled at the instance of a party to the marriage.
Therefore having a communicable venereal disease cannot be
used as a ground for preventing a person from getting married.
depriving HIV-positive people of the fundamental right to
marry is likely to make them distrustful of and antagonistic
towards government health care programs that propagate
voluntarism and positive behavioural change essential to HIV
prevention strategies. More plainly put, denying HIV-positive
persons the right to marriage and found a family is likely to
have negative public health implications in the HIV/AIDS
scenario. All international data to date conclusively
demonstrates that coercive strategies such as this only serve
to drive the epidemic underground thereby increasing the rate
of new HIV infection. It has been seen that when governments
fail to protect the human rights or worse where they deprive
individuals of rights, government policies are more likely to
drive people away form public health programs than to ensure
petition also calls attention to the fact that there are many
other communicable diseases that are in fact easier to acquire
than HIV like TB, Hepatitis B; yet no restrictions have been
placed on persons suffering from these illnesses. Then is it
not inherently discriminatory and arbitrary in nature to place
restrictions on people who are HIV-positive? The Commission on
Human Rights (United Nations, 1989) concludes that "all
human rights must apply to all patients without exception and
that non-discrimination in the field of health must apply to
all people and in all circumstances".
terms of confidentiality, the petition raises the question
whether the doctor is required to keep the medical status,
including the HIV status of his/her patient confidential? The
petition argues that even in certain exceptional cases it is
the doctor's ethical and moral duty to inform the patient
first of his condition, and then give him/her adequate
counselling to practice the least restrictive alternative.
Only then should the doctor if necessary reveal his/her
medical status to an identifiable third party if and only if
imminent danger is perceived to that person.
on sound testing policy, the petition goes on to argue that a
blood bank is required to keep the identity and HIV-status of
the donor confidential. Furthermore there is no duty cast upon
the blood bank to disclose such information to third parties.
The petition relies upon studies and international experience
clearly indicates that in the HIV scenario, strategies aimed
at prevention of HIV transmission are best advanced by
protecting the rights of the HIV positive individual,
including his/her right to confidentiality of his/her medical
Petitioners are seeking the following declarations
from the Court:
An HIV-positive person is entitled to marry and this
right is not taken away or suspended on account of
his/her HIV-positive status.
· In a blood bank setting there is no duty cast upon
the blood bank to disclose the HIV-positive status of
the donor to any third party.
· A doctor has a primary duty to keep information
about his/her patient confidential except in limited
exceptional cases where it may be legally required for
them to disclose.
a result of the severe social stigma still associated with
HIV/AIDS, the rights of PWAs are often violated and they must
go to court to defend their rights. However, PWAs are often
prevented from litigating in court for fear that their HIV
status will become public knowledge, thus disabling them from
protecting their rights. To date, the Lawyers Collective
HIV/AIDS Unit has been involved in several HIV/AIDS related
cases in the areas of employment, divorce and medical
negligence where suppression of identity was used as a
beneficent litigation strategy. Simply put, suppression of
identity allows the litigant to pursue legal remedy under a
pseudonym, thereby protecting the litigant's right to privacy
and promoting the litigant's right to equal protection and due
process. In this case, the court has already granted orders
for suppression of identity. In all official documents, the
case now bears the title of AC and Others v. Union of India.
matter is up before the division bench of Justice Pandya and
Justice Parkar on April 28th, 1999 in the Bombay High Court.
a petitioner in this case, has been living with HIV since the
past 8 years. He came to know of his HIV-positive status in
1993. The news was broken to him by his two brothers who had
collected his test reports. His first reaction was fear and
worry as to how long he would live as he did not have much
knowledge/information on HIV/AIDS. At this time itself a
marriage proposal was made to him that he declined. His
brothers gave him the much- needed support to cope with this
was not until 1995 that C received counselling from G.T.
Hospital and was referred to an organization that provided
anonymous testing and counselling services for PWAs. It is
here that C got a great deal of emotional support and courage
being with other people facing the same problems. His
interactions and relationships with other PWAs and sharing
information with them has helped him tremendously. Today he is
well informed about the disease, its modes of transmission,
ways of staying healthy by having a nutritious diet and
methods of prevention of the virus. His positive attitude has
helped him maintain a healthy lifestyle. He hopes to see the
next millenium and also hopes that a cure is found for
does regret not getting married at an earlier age as he misses
having a companion and someone to look after him and share his
life. Today, he would like to get married if he finds a girl
who is compatible with him, and who is willing to marry him
knowing his HIV- positive status and its implications.
What was your initial reaction to the judgement?
I didn't take the judgement too seriously since I felt that
actual reality was quite removed from laws and legislation and
that to enforce such a law was going to be difficult.
on further reflection I found the judgement to be singling out
and targeting people with HIV. This is discrimination as there
are other illnesses that are more dangerous and easier to
transmit than HIV. For example, illnesses like Hepatitis B,
TB, Malaria are much easier to transmit. In the case of TB,
merely living together with a person who is infected can pass
on the infection to other members of the family. Whereas in
the case of HIV there are only four known ways of transmitting
the virus i.e. through sexual intercourse with an infected
partner, through infected blood transfusions, sharing of
infected needles and mother to child transmission.
feel that HIV/AIDS is not as dreadful an illness as it is made
out to be because people living with the virus have been known
to live a healthy life for many years even without the
combination drug therapy. In the case of TB and Hepatitis B if
no medication is taken for a period of time it could be fatal.
What advice would you give to persons living with HIV with
regard to marriage?
According to me this would vary with each case. It would
depend on how old they are. If they were young, I would
recommend that they get married. Of course, the infected
partner should inform the prospective spouse of the
HIV-positive status. I would also advise them to practice safe
Why did you think of filing the petition challenging the
I strongly believe that PWAs are being discriminated against
by this judgement - there is no valid basis for targeting only
them, all persons should be treated equally in a democratic
society. It is primarily a question of depriving someone of
his/her human rights.
should be just and fair for all people alike. Why are such
laws not passed for persons suffering from other illnesses
like Hepatitis B, TB, syphilis etc.? Persons with HIV are
human beings just like anybody else and should be treated
reason for filing the petition was what happens in the
situation if I or any other HIV-positive person does get
married with the consent of the partner, and if the marriage
does not work out and the matter appears before the courts?
Will legal action be taken against me or the HIV-positive
person concerned? Can we/he/she be arrested for committing an
offence by marrying someone since that right has been
suspended by the Supreme Court?
also feel that passing this judgement is not the solution to
stop the virus from being transmitted in society.
What do you hope for from the Court by filing this petition?
I hope that the decision of the Supreme Court suspending the
right of an HIV positive person to get married will be
reversed. I know of many discordant couples who are living
happily together. There are also cases where though the
partner knows the HIV-positive status of the other, he/she
still desires to marry - can such people be barred from being
is living with HIV and a member of Maharashtra Network of
Positive People (MNP+). MNP+ is a support group for PWAs based
in the state of Maharashtra. The main objective of MNP+ is to
provide care and support to persons living with HIV. Their
work includes providing a referral service, dissemination of
information, counseling, and developing the capacity of PWAs
in the areas of counseling and communication.
What was your understanding of the judgement?
I think the judgement is totally wrong. Even the media has
understood and focussed only on one aspect of the judgement.
The judgement is prejudiced against PWAs in presupposing that
all PWAs are dishonest and will knowingly choose to infect
other people with the virus.
is your opinion about the suspended right to marry of persons
living with HIV?
I think it is wrong to take away this right from PWAs. It will
have harmful consequences in the sense that it will drive the
epidemic underground. It will only serve to widen the gap
between PWAs and society. It is in no way going to be able to
prevent the spread of the virus as has been supposed by the
The Supreme Court has passed the judgement in view of
protecting women who are vulnerable to being infected by their
husbands - what do you think about this?
I still feel such a judgement is not the solution. Instead
steps should be taken to create awareness and provide
counseling services to PWAS - information and knowledge about
safe sexual practices should be imparted.
What is your opinion on partner notification?
It is the doctor's/counselor's duty to make the PWA aware of
the consequences and implications of transmitting the virus
not only to a married spouse but also to other partners with
whom they have sexual relations. The doctor/counselor should
try and address the problems of the PWA and together find
solutions. Once the client understands the consequences of
transmitting the virus to another, he/she is sure to act in a
responsible manner and disclose his/her HIV positive status to
his/her partner of his/her own accord. In fact I know of many
couples who have gotten married where one partner is positive
and the other is negative.
Have you discussed the petition with other members of MNP+,
and what is the general opinion?
We definitely support the petition. The right to marry of
positive persons should not be suspended. There has been a
significant change in the thought patterns of positive
persons. Initially they were hesitant about getting married
but today most of them know that use of preventive methods
reduces the risk of transmission to a minimum and they would
like to get married. It is important to them to have the
companionship and support of a spouse. With regard to bearing
children, they are aware of the fact that risk of transmission
can be significantly minimized.
How do you think MNP+ can help in advocacy work related to the
I feel that there should be workshops conducted for those in
the legal community who are involved in deciding such issues/judgements.
They should be sensitized about HIV/AIDS and the issues that
confront PWAs. There should also be workshops for PWAs to
educate them about the legal and ethical issues related to
do write to us with your comments and queries at the
address given below:
Lawyers Collective HIV/AIDS Unit provides legal aid and
allied services for people affected by HIV/AIDS. The
main objective of the Unit is to protect and promote the
fundamental rights of persons living with HIV/AIDS, who
have been denied in areas such as:
· Health care
· Terminal dues like gratuity, pension
· Marital rights relating to maintenance, custody etc
Unit is also involved in initiating public interest
litigations on varied issues, like access to public
health care, safe blood supply, access to services
amongst others. We also conduct workshops on legal and
ethical issues relating to HIV/AIDS for different groups
of people - lawyers, judges, health care providers, NGOs
affected by HIV/AIDS seeking legal aid, advice and
support including organizations, individuals, members of
legal community, NGOs in need of information are welcome
to contact us at:
Collective HIV/AIDS Unit
7/10, BOTAWALLA BUILDING, 2ND FLOOR
HORNIMAN CIRCLE, FORT
MUMBAI - 400 023
TEL: 22 267 6213/9 FAX: 22 270 2563
E-MAIL : email@example.com or firstname.lastname@example.org
Hours : Monday – Friday : 10:00 a.m. – 7:00 p.m.
Saturday : 10:00 a.m. – 4:00 p.m.