Despite Enactment Of HIV & AIDS (P&C) Act & Awareness Measures By Govts, Stigma Accompanying HIV+Ve Diagnosis Is Still Prevalent In Society: SC
|The Supreme Court in a case said that despite the enactment of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (in short “HIV & AIDS (P&C) Act”) and the awareness measures taken by Governments, the stigma and discrimination accompanies an HIV+ve diagnosis.
The Court was deciding an appeal challenging the judgment of the Principal Bench of the Armed Forces Tribunal (AFT), New Delhi by which it rejected a man’s prayer seeking reference of his diagnosis as AIDS inflicted, to a fresh Medical Board.
The two-Judge Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta observed, “We would be remiss in not recognising the particular circumstances of the appellant’s discharge from service which compounded the agony of the process, i.e., a wrongful diagnosis of AIDS and subsequent termination of services on the same ground. It is no secret that despite the enactment of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, and the slew of awareness measures taken by Governments in recent times, the stigma and discrimination which lamentably accompanies an HIV+ve diagnosis is still an illness that afflicts the minds of society today. The discriminatory sentiment of deeming persons who are HIV+ve to be unfit for employment, is starkly evident from the way in which the appellant has been responded to and treated by the various authorities.”
Advocate Kawalpreet Kaur represented the appellant while Senior Advocate Balasubramanian represented the respondents.
Facts of the Case -
The appellant was enrolled in the Indian Army in 1993 as a Havaldar and he continued discharging his duties on a clerical post without impediment until the year 1999 when he began suffering from fever, headache, and vomiting. For treatment, he was referred to the Jabalpur Military Hospital and was tested positive for HIV. In 2000, the Army Headquarters issued a notice stating that all persons who are HIV+ve and are suffering from pulmonary or extrapulmonary tuberculosis would be considered as AIDS cases. In 2001, the appellant was reported to be suffering from “AIDS defining illness in the form of neuro- 3 tuberculosis” and thus was officially diagnosed with AIDS.
The appellant was then recommended to be invalided out in the “P5” category. After 8 years and 58 days of service, at the young age of 27, he was discharged from service under Rule 13 (3), Item III(iii) of the Army Rules, 1954 on the ground of having been found medically unfit for further service. He approached the Madhya Pradesh High Court seeking quashing of the discharge order and his writ petition was allowed. However, the Division Bench reversed the order under appeal. An application for review was also dismissed and hence, he challenged the same before the Apex Court.
The Supreme Court in the above context of the case noted, “The Constitution, through its Preamble, guarantees to all its people ‘Justice’, in the deliverance of which, the Courts of the land have developed a nuanced compensatory jurisprudence through a catena of judgments, for a wide compass of situations.”
The Court said that having been discharged from the services of the Indian Army at the prime age of 27, the appellant was robbed of the opportunity of further serving the nation for many more years on account of a most unfortunate turn of events, the responsibility for which can lie on no shoulders other than the respondents and that the appellant neither received his leave encashment, nor received reimbursement for the expenses incurred by him in medical tests.
“It has been submitted by the counsel for the appellant that he is presently aged 50 years and is into a small business of his own. Having considered the plight of the appellant, which his employer failed to address, as well as the social stigma attached to persons who are diagnosed as HIV+ve patients, coupled with the position that the appellant’s reinstatement in service is not an available option now and also that direction for grant of pension, which we propose to make, cannot be considered an equitable restitution of what the appellant has suffered by reason of psychological, financial and physical trauma, we deem it fit to additionally award him monetary compensation”, it observed.
Furthermore, the Court remarked that by misdiagnosing the appellant with AIDS, the respondents indubitably subjected the appellant to further misery in not only combating social stigma against a disease which the appellant never suffered from but also from the dreadful thought of an imminent death resulting from an incurable disease.
“In view of the extreme mental agony thus undergone by the appellant, in not only facing the apathetic attitude of the respondents 2 to 4 but in facing the concomitant social stigma and the looming large death scare that accompanied such a discharge from the armed forces, we deem it fit to award a lumpsum compensation of Rs.50,00,000/- (Rupees fifty lakh only) towards compensation on account of wrongful termination of services, leave encashment dues, non-reimbursement of medical expenses and the social stigma faced, to be paid by the respondents 2 – 4 to the appellant within eight weeks from the date of this judgment without fail”, it added.
The Court held that the appellant shall be entitled to pension in accordance with law as if he had continued in service as Havaldar and on completion of the required years of service retired as such, without being invalided.
“We make it clear that since the appellant had not continued in service beyond 26th December, 2001 and there was no occasion to assess his performance for securing a promotion, he shall not be entitled to raise any plea in relation thereto. However, in computing the quantum of pension payable to the appellant, the respondents shall take into account allowances / increments that the appellant would have been entitled to, had he continued in service till the date of his retirement as Havaldar”, it clarified.
“We are conscious that whatever amount by way of compensation has been directed to be paid to the appellant, by the respondents 2 to 4, can in no manner compensate for the ordeal he had to face over the years; there could never be an appropriate substitute for such adversity but such financial compensation might act as a balm to soothe the mind and steady the future. Now that we have been informed that the appellant is active and involved in a business of his own, our prayers are with him to lead a long and healthy life”, it concluded.
Accordingly, the Supreme Court allowed the appeal and set aside the judgment.
Cause Title- Satyanand Singh v. Union of India & Ors. (Neutral Citation: 2024 INSC 236)
Appearance:
Appellant: AOR Satya Mitra, Advocates Kawalpreet Kaur, Umesh Kumar, and Nayab Gauhar.
Respondents: Senior Advocate R. Bala, Advocates Rajesh Kr. Singh, Mohan Prasad Gupta, Sanjay Kr. Tyagi, Sweksha, AOR N. Visakamurthy, Advocates Arun Kumar Yadav, and Debashish Mishra.