Making testing for HIV mandatory for military recruits, and denying HIV-positive persons jobs in the armed forces, could be open to constitutional challenge

The Indian Armed Forces are at present contemplating instituting a mandatory pre-recruitment HIV test. The stated rationale for this is to prevent the recruitment of HIV-positive personnel thereby creating an ‘HIV-free’ armed force. While mandatory testing for HIV and the arbitrary denial of employment based solely on a person’s HIV-positive status have been found by the courts to be a violation of the fundamental rights to livelihood and equality in the civilian context, the military context is different.

Article 33 of the Constitution gives Parliament the power to determine the extent to which fundamental rights can be restricted within the armed forces. The restrictions are aimed at ensuring the proper discharge of duties and the maintenance of discipline within the force. Thus, under section 21 of the Army Act, 1950, Section 21 of the Air Force Act, 1950, and Section 19 of the Navy Act, 1957, Parliament has imposed restrictions on the right of freedom of speech and expression and the right to form an association, or the rights conferred under Articles 19(1)(a) and (c) respectively.

There is, however, no provision in either of these statutes authorising the armed forces to restrict the right to equality (Article 14) or the right to liberty or livelihood (Article 21) of persons merely on the basis of HIV-positive status. Therefore, a policy in the armed forces making it mandatory to test recruits for HIV and deny recruitment to HIV-positive persons solely on the basis of their HIV status could be subject to constitutional challenge. In international cases, courts have found the rejection of applications to the military based solely on HIV status to be discriminatory.

For example, In N v. Minister of Defence, (Case No LC 24/98, Unreported, delivered May 10, 2000), the Labour Court of Namibia ruled that the Namibian Defence Force’s (NDF) rejection of an applicant on the basis of his HIV-positive status amounted to discrimination on an unfair basis. Notwithstanding N’s HIV infection, he was in sound and good health and capable of performing his duties anywhere in Namibia, hence his HIV status alone was not determinative of his fitness for military service and was not a reasonable basis upon which to refuse to enlist him.

In Canada (Attorney General ) v. Thwaites ( T D ), ([1994] 3 F C 38), the Canadian Federal Court upheld the decision of the Canadian Human Rights Commission that the Canadian Armed Force’s (CAF) discharge of an HIV-positive staffer because of his HIV-positive status was an act of discrimination. The Commission had found that CAF had failed in its duty to individually assess Thwaites and make a specific determination whether the risk he posed (to himself and others) was significant enough to warrant dismissal. It had further noted that a decision of this nature must be based on updated scientific and medical data, “not hasty assumptions, speculative apprehensions or unfounded generalisations.” The Federal Court also upheld the decision of the Commission that CAF had a duty to accommodate Thwaites by reassigning him to another position and its ruling that he be awarded damages.

This article is taken from the website of the Lawyers Collective www.lawyerscollective.org
The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realisation that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by, or vulnerable to, HIV, and undertakes advocacy and research initiatives related to law, rights and HIV.

Infochange News & Features, February 2008