The right to life

The High Court of Andhra Pradesh recently awarded compensation to a woman who had contracted AIDS through negligence on the part of a government hospital. KALPANA KANNABIRAN reviews this judgment, emphasising the need for periodic and mandatory blood tests to detect the disease.

OF the estimated 26.8 million adults and over 2.5 million children worldwide who have HIV/AIDS, India alone accounts for 3.5 to 4 million adults. While there has been a significant increase in HIV/AIDS awareness programmes and advocacy in India, there is need to increase public discourse on this issue. Questions with regard to the rights of persons who test HIV +ve have been debated in courts in the past few years, foregrounding the right to life. This article examines a couple of critical issues debated in the judiciary, in the light of the recent Full Bench decision of the Andhra Pradesh High Court in M. Vijaya's case.

An issue that merits serious consideration is the apparent conflict between the rights of individuals affected by HIV/AIDS and the social responsibility of the State and its institutional apparatus. While employers and hospitals have used the argument of public safety to deny rights of employment and access to persons with HIV/AIDS, the courts on the other hand have managed to create an environment conducive to a discussion on rights in all its complexity. The most debated one has been that of the right to privacy of a person with HIV/AIDS, and the consequent right against disclosure.

The case of Mr. ``X'' vs. Hospital ``Z'', 1999 decided by the Supreme Court deals with the "suspended right to marry." A doctor, who tested HIV +ve claimed damages against a hospital for disclosing his status to the family that brought him a marriage proposal, leading to the withdrawal of the proposal. When the National Consumer Disputes Redressal Commission refused to take up his case, he approached the Supreme Court, arguing that the right to marry was a fundamental right. The Supreme Court, while arguing that persons with HIV/AIDS have a right to employment, felt that the Court could not assist such persons to marry.

What is disturbing about the decision is the preamble to the statement on the court's inability to assist in marriages: ``AIDS is the product of indisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone howsoever high or low he may be in the social strata.'' Apart from distorting the reality of AIDS, the decision not to support the doctor's claim, when seen against this, appears grossly unjust, if only because it is framed by a moral judgment that is not only unacceptable but also irrelevant to the case. Yet again this ambivalence is characteristic of judicial discourse particularly evident in cases of rape.

A recent Full Bench decision of the Andhra Pradesh High Court views AIDS as a public health issue and one that needs to be articulated in terms of the constitutional guarantee to the right to life, making employers and health providers accountable for any negligence, omission or failure to conform to procedure.

In M. Vijaya vs. Chairman, Singareni Collieries Hyderabad, M. Vijaya, whose husband has been an employee of the company for the past 17 years, underwent a hysterectomy at the company's hospital in January 1998, for which her brother donated blood. Fifteen days later, she fell sick and was advised further tests, which revealed that she was HIV +ve. Her husband tested negative, while her brother tested positive. In its counter affidavit, the hospital not only disclosed facts about the widespread prevalence of HIV/AIDS in the collieries but also admitted that it had not tested the blood of the donor before accepting it.

This, the court said, was negligence on the part of doctors and could scarcely be condoned. The Court awarded compensation as a public law remedy in addition to and apart from the private law remedy for tortuous damages. Drawing on D. K. Basu's case where the Supreme Court held that the State is vicariously liable for infringements of the rights of citizens by public servants, and is thus liable to pay compensation, the court directed Singareni Collieries to pay Rs. one lakh towards medical costs, in addition to the special or general claims for damages that the petitioner might make.

The corporatisation of health care, now in its ascendancy, goes hand in hand with the collapse of public health systems that are meant to provide care to the working class. While the mere absence of adequate facilities itself is an infringement of the right to life, negligence only compounds it. In this context, this case shifts public discourse on HIV/AIDS out of the arena of promiscuity into the arena of public health, thus also effecting a shift away from the individual to the social responsibility of the State and its agencies, particularly health care and delivery systems.

When a disease/ailment reaches epidemic proportions, the State is responsible for putting in place policy measures for its treatment and eradication. However, the problem arises when the State, in the conceptualisation and implementation of its policy, masks the character of the disease in question. The forced testing of blood is carried out as a matter of routine on socially marginalised and vulnerable populations, the so-called ``high risk'' constituencies. In this case, since even the Supreme Court believes that AIDS is a result of indisciplined sex, the highest risk categories are sex workers. But identifying and targeting sex workers cannot lead to the eradication of HIV/AIDS. This approach even denies the possibility of a near accurate census and mapping of its occurrence. Instead we need to think of HIV/AIDS as a public health concern and conceive of policy in new and effective ways.

As the Supreme Court has held, mandatory blood testing does not constitute a violation of a citizen's right to privacy. There are multiple channels of transmission of HIV/AIDS, and AIDS has in fact reached epidemic proportions. The public health campaign that comes immediately to mind both in terms of its reach and spirit is the polio eradication programme, or what is more popularly known as Pulse Polio. All citizens, irrespective of gender, class, social location, sexual orientation or occupational status, must be required to go through periodic and mandatory blood tests for HIV/AIDS. By articulating the problem as an issue of public health policy that is generally applicable to all citizens, the debate will be relocated in a space free from moral censure.

Medical procedures take on the character of health check ups in which the HIV/AIDS test will be one component. This will be clearly separate from the coercion that is intrinsic to State sponsored target-oriented approaches to health and population control.

The right to privacy is a right that is mediated by class. The poor do not have the right to privacy. When everyone is required, as a matter of routine, to go through tests, and when health delivery systems of the State are required to conduct them and maintain detailed and accurate records of these tests, the issue of privacy becomes redundant. All citizens then, across class will be in a position to make informed life choices, without having to depend on the benevolence of disclosure or on the arbitrariness of contemporary medical practice and health delivery. The onus is, in other words, on the State to take appropriate measures to restore the citizen's fundamental right to life.

(The writer teaches at NALSAR University of Law and works with Asmita Resource Centre for Women, Hyderabad.)

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