Can HIV be sole ground for discharge from Army?

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

Legal Correspondent, for The Hindu