Can HIV be sole ground for discharge from Army?

July 1, 2008

Legal Correspondent

New Delhi: The Supreme Court will examine whether a person serving in

the Army can be discharged on the sole ground of his being HIV-

positive. It, however, declined to stay the June 24 order discharging

Ved Prakash, havildar of the Indian Army Ordinance Corps, with effect

from June 30.

A vacation Bench, consisting of Justices Altamas Kabir and G.S.

Singhvi, on Friday posted the matter for final hearing on August 6.

In the meantime, the Centre and the Army were asked to give their

response.

The petitioner served the army for 24 years. His HIV-positive status

was detected during a blood donation camp in 1999. Subsequently, he

was given P2 (permanent) medical classification, a category assigned

to HIV-positive persons, who are not on Anti-Retroviral Treatment

(ART). He continued to do normal duties and during this period he was

promoted from Naik to the havildar rank.

From December 2007, Ved Prakash was put on ART and the medical

officer certified that he was capable of performing his duties.

However, he was discharged from service. The Delhi High court granted

an interim stay against discharge but later vacated it.

In his special leave petition against the High court order, Ved

Prakash said that under the " Guidelines for management and prevention

of HIV/AIDS infection in the Armed forces, " a person might be boarded

out only when he showed unsatisfactory response to therapy. But none

of the conditions applied in his case.

Questions of law

Ved Prakash said the SLP raised important questions of law: Could one

be discharged on the erroneous assumption that HIV- positive persons

were inherently incapable of serving the Army? Could the petitioner

be discharged by erroneously assigning him a medical classification

against the guidelines and policy of the government? Could he be

discharged without an order from the Medical Board invalidating him?

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