SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

or for the detention of any injuries as a result of sexual abuse or for the presence of any
sexually transmitted diseases.” 76
In India, several High Courts have dealt with discrimination based on HIV. The leading
judgment is the Bombay High Court decision in MX v. ZY 77 where the court struck down the
dismissal of a person living with HIV who was otherwise qualified to perform his job and
who did not pose a risk of transmitting HIV to others in the work place, as violating the right
to equality. MX was a casual labourer employed on a contractual basis with a public sector
corporation. A medical examination that was required to get his employment regularised
revealed his HIV-positive status based on which his contract was terminated. MX approached
the court, arguing that the rules that allowed his termination based on his HIV status violated
his fundamental rights under the Indian Constitution. The High Court ruled that his rights to
equality and life were indeed violated and established the rule that no person could be
deprived of his or her livelihood (employment) except by procedure established by law and
that the procedure must be just, fair and reasonable. It further held that where a person is fit to
perform the duties of his or her specific job, is otherwise qualified and does not pose
substantial risk of transmission to other workers, he or she cannot be denied employment for
being HIV-positive. The public sector company was asked to reinstate MX and pay him back
wages. 78
In Mr. “X” v. Hospital “Z,” 79 Mr. X, a doctor approached the Supreme Court over the breach
of his right of privacy and confidentiality by Hospital Z in revealing his HIV status. The
Supreme Court examined the duty of doctors to respect confidentiality and weighed the right
of Mr. X with that of the person with whom he was to be married before the result of his HIV
test became known and led to ostracism against him and his eventual departure from his
home State. In doing so it noted that the duty to maintain confidentiality has its origins in the
Hippocratic Oath, an ethical code adopted as a guide for conduct by the medical profession
that states among other things, “…Whatever, in connection with my professional practice, or
not in connection with it, I see or hear, in the life of men, which ought not to be spoken of
abroad, I will not divulge as reckoning that all such should be kept secret…” This is further
reflected in the International Code of Medical Ethics that states, “A physician shall preserve
absolute confidentiality on all he knows about his patient even after his patient has died." In
India, the Court noted that this has been included in the Code of Medical Ethics issued under
the Indian Medical Council (Amendment) Act 1964 i.e. “"Do not disclose the secrets of a
patient that have been learnt in the exercise of your profession. Those may be disclosed only
in a Court of Law under orders of the presiding judge."
The Supreme Court agreed that, “in the doctor-patient relationship, the most important
aspect is the doctor's duty of maintaining secrecy. A doctor cannot disclose to a person any
information regarding his patient which he has gathered in the course of treatment nor can
the doctor disclose to anyone else the mode of treatment or the advice given by him to the
patient.”
76 Section 15(5-A), Immoral Traffic Prevention Act, 1956 (India)
77 AIR 1997 Bombay 406
78 Rulings related to HIV status in the workplace have also been followed by other High Courts in India e.g. by
the Andhra Pradesh High Court in relation to armed forces in Lieutenant Commander KN Reddy v Union of
India & others 2008 INDLAW AP 277
79 AIR 1999 SC 495
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