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JURISDICTION

The petitioner has filed the Public Interest Litigation under Article 32 of the Constitution of Humania for

the violation of Fundamental Rights enumerated in the Part III of the Constitution. The respondent

maintains that there is no violation of Fundamental Rights has taken place. Therefore, this Honble

Court need not entertain its jurisdiction in this Public Interest Litigation

MEMORANDUM ON BEHALF OF THE RESPONDENT


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STATEMENT OF FACTS:

Ms. Priya was working in one of these Private Sector Undertakings, as Head of

Department in an Advertising Company named- Pioneer Advertising Solutions Pvt. Ltd.

She had worked with many advertisement companies during the initial years of her career

and was rewarded for her work.

After working in the company for four years, in the year 2014 she fell ill. During this

period the company lost two minor and one major advertising project. This continued till

January 2015.

During an annual medical check-up, she came to know that she is an HIV positive. Priya

told Mr. Saxena about her disease.

In 2015, the Company decided to dismiss her from the job. This is because of her

incompetence to work, and due to her frequent leaves, the company was facing a huge

problem. The same was mentioned in the statement of termination.

She believes that her fundamental rights under Article 21-Right to live with human

dignity and right to livelihood are violated, and hence had approached an NGO

Humanity Improvement Venture (HIV), an NGO has filed a Public Interest Litigation

seeking directions to the Union of Humania for enacting the law to protect rights of HIV

infected employees in Private Sector Undertakings.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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ISSUES RAISED

ISSUE- I

WHETHER THE PUBLIC INTEREST LITIGATION FILED BY THE HUMANITY

IMPROVEMENT VENTURE ADMISSIBLE??

ISSUE- II

WHETHER THE BYE LAWS ENACTED BY THE PRIVATE SECTOR UNDERTAKING IS

VIOLATIVE OF ARTICLE 21?

ISSUE- III

WHETHER THERE ARE ALTERNATIVE REMEDIES AVAILABLE TO THE HIV

INFECTED EMPLOYEES?

MEMORANDUM ON BEHALF OF THE RESPONDENT


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SUMMARY OF ARGUMENTS

ISSUE- I

WHETHER THE PUBLIC INTEREST LITIGATION FILED BY HUMANITY

IMPROVEMENT VENTURE (HIV) ADMISSIBLE?

It is humbly submitted before the Honble Court that the Public Interest Litigation filed by the

Petitioner is not maintainable. The PIL cannot be issued under circumstances where it is futile or

ineffective. It discloses no substance. Moreover, a PIL cannot be filed against the executive or

legislative function of the Government. Thus, it is conceded and humbly known to the

confidence of the Honble Court that, the PIL is not admissible.

ISSUE- II

WHETHER THE BYE- LAWS ENACTED BY THE PRIVATE SECTOR

UNDERTAKING IS VIOLATIVE OF ARTICLE 21 AS REGARDS THE HIV

INFECTED EMPLOYEES?

It is humbly submitted before the Honble Court that the private sector has every power to

appoint or terminate any member of the company with the bye-laws of the company. The bye-

laws enacted by the Private Sector Undertaking are safeguards for both the employees and the

company thereof. Any private sector company has a statutory law which has to be adhered to. So

in the instant case the petitioner cannot demand the private sector to change the rules according

to their ease. Thus, it is conceded and brought to this Honble Court that the dismissal is

unquestionably right.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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ISSUE- III

WHETHER THERE ARE ALTERNATIVE REMEDIES AVAILABLE FOR HIV

INFECTED EMPLOYEES?

It is humbly submitted before the Honble Court that the Union Government of Humania has

taken necessary steps to safeguard the HIV infected employees. It has brought about the HIV Bill

and National Policy on HIV and many more awareness. As per the Constitution of Humania, the

Union Government is taking necessary to provide quick remedies for the HIV infected

employees.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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ARGUMENTS ADVANCED

ISSUE- I

WHETHER THE PUBLIC INTEREST LITIGATION FILED BY HUMANITY

IMPROVEMENT VENTURE (HIV) ADMISSIBLE?

It is humbly contended before the Honble Court that the Public Interest Litigation filed

by the Humanity Improvement Venture (hereinafter referred to as the Petitioner) is not

admissible.

The same is not valid on the following grounds because:

It catches the eye just for the sake of garnering media attention and their one

minute of fame.1 (1.1)

It is a camouflage to foster personal disputes.2 (1.2)

It is counterproductive.3 (1.3)

The PIL has been filed prematurely. (1.4)

It is frivolous.4 (1.5)

1.1 It catches the eye just for the sake of garnering the media attention and their one

minute of fame-

It is contended that the NGO- Humanity Improvement Venture (HIV) has filed the

petitions on the grounds merely to gain publicity.


1
Ashok Kumar Pandey v. State of W.B., (crl.) 199 of 2003
2
Godavarman Thirumulpad v. UOI., (civil) 202 of 1995,decided on10.04.2006
3
Balco Employees' Union vs UOI., AIR 2002 SC 350
4
Imran Suleiman Querishi v. Mumbai repair & Reconstruction Board & Ors., 7 th May 2015

MEMORANDUM ON BEHALF OF THE RESPONDENT


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While it is the duty of this court to ensure fundamental rights, it is also the duty of

this court to ensure that the weapon under Art. 32, should not be misused or

permitted to be misused creating a bottleneck in the superior Court preventing other

genuine violation of fundamental rights being considered by the Court.5

Thus, it is humbly affirmed before the Honble Court that the petitioners are

misusing the weapon of PIL under Art. 32.

The petitioner has no locus standi in filing the PIL because of which the judicial

process has now been broken,6 because the aim of PIL should be for a public gain

and not for publicity.7

It is publicity interest litigation.8

Thus, it is confronted before the Honble Court that the Public Interest Litigation

filed by the petitioners is not admissible.

1.2 It is a camouflage to foster personal disputes

It is humbly contended that the petitioners have filed the PIL for benefiting

individual interest.9

It is the duty of the court to carefully observe that the member of the public who

approaches the court in cases of this kind, is acting bona fide, and not for private

profit or other oblique consideration.10

5
Chhetriya Pradushan Mukti Sangharsh Smiti v. State of U.P., AIR 1990 SC 3060; 1990 (4) SCC 449
6
Peoples Union for Democratic Rights v. UOI.,AIR 1982 SC 1473
7
Supra Note 1
8
Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.
9
Malik Brothers v. Narendra Dadhich., AIR 1999 SC 3211
10
S.P. Gupta v. UOI., AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365

MEMORANDUM ON BEHALF OF THE RESPONDENT


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Thus, it is asserted before the Honble Court that the petitioners have for vindicating

their personal interest.11

Thus, it is contended before the Honble Court that the petitioners have had personal

interest and not a public interest.

Private interest litigation is not maintainable.12

Therefore, it is humbly pleaded before the Honble Court that the petitioner has filed

private interest litigation and not public interest litigation.

1.3 It is counterproductive:

It is humbly submitted before the Honble Court that the PIL filed by the petitioners

is counterproductive in the sense that it violates the provisions of Constitution

regarding the policy making for the Union of Humania.

Article 32 cannot be invoked to make the state to accept and enforce a particular

policy.13

Regarding the petitioners question on enactment of law for the protection of HIV

infected employees; it is entirely a matter of executive branch of the government to

decide whether or not to introduce any particular legislation.14

The courts must not overstep the limits of its judicial function and trespass into the

areas reserved for executive and legislature by the Constitution.15

11
Subash Kumar v. State of BH., AIR 1991 SCW 121; 1991 SCR 5
12
Delhi Municipal Workers Union (Regd.) v. M.C. Delhi., AIR 2001 Delhi 68
13
Shrikrishna Bhatt v. UOI., 1990 (1) SCALE 155
14
State of H.P. v. Parent of a student, Medical College, Shimla., AIR 1985 SC910
15
S.P. Gupta & Ors. v. President of India., AIR 1982 SC 149

MEMORANDUM ON BEHALF OF THE RESPONDENT


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The public interest litigation is not a litigation of an adversary character undertaken

for the purposes of holding a Government or its laws for making reparation or

redirecting the government to enact laws.16

The respondent most humbly submits that the Supreme Court has long held that

interference into policy actions is not within its jurisdiction.17

1.4 The PIL has been filed prematurely-

The respondent submits that the Court has held that only if there is a violation of

Fundamental Rights can it step in under the Jurisdiction of Article 32.18

The petitioner is raising a mere scholarly objection, without any locus standi.

When an alternative remedy has been specifically set up to hear the issues pertaining

to the nature of this PIL petition, the petitioner need not waste the time of this

Honble Court.19

Unless there is prima facie evidence to prove that exercise of discretion has been

arbitrary, unreasonable or mala fide, the Court cannot step into the shoes of the

Government to decide the validity of a policy or for the creation of a policy.20

16
Dr. Upendra Baxi & Ors., 1986 (4) SCC 106. Para 1 of Order dated March 1, 1982
17
Directorate Of Film Festivals v. Gaurav Ashwin Jain & Ors, Appeal (civil) 1892 of 2007
18
Romesh Thapar v UOI., AIR 1950 SC 124
19
Adjudication of Industrial Disputes by labor courts, Industrial Tribunals or National Tribunals under the

Industrial Disputes Act of 1947 or by any other corresponding authorities under the analogous state statutes. By

and large, the ultimate remedy of unsettled dispute is by way of reference by the appropriate government to the

adjudicatory machinery for adjudication.


20
State of M.P. and Others vs. Nandlal Jaiswal and Other, (1986) 4 SCC 566

MEMORANDUM ON BEHALF OF THE RESPONDENT


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It is a matter of public policy that the Court not permit litigations on the same issue

be raised in perpetuity,21 as no executive or legislature will ever succeed if such a

practice is encouraged.22

Thus, the policy decision of the Government regarding the protection of the HIV

infected employees is with the executive and prima facie cannot be brought under the

realm of judiciary.

Whether the principle of Res judicata applies in the present case? The respondent

maintains the applicability of the maxim, interest reipublicae ut sit finis litium.23 This

fundamental maxim is the basis for the conception of Res judicata, as also the

principle of Judicial Infallibility.24 In addition, Res judicata pro veritate occipitur, a

judicial decision must be accepted as correct.25

In Govt. of A.P v. A.P Jaiswal, the court observed the importance of consistency in

judicial decisions.26

Since, in the supra sub arguments, it has been proved that a PIL cannot be filed over

the limits of judicial function and trespass into the areas reserved for executive and

21
Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177

22
Satyadhyan Ghosal v. Sm. Deorajin, AIR 1960 SC 941
23
Daryao v. State of U.P, AIR 1961 SC 1457
24
Deena Dayal v. Union of India, AIR 1983 SC 1155
25
Mulla, Code Of Civil Procedure 69 (14thed, 2004)
26
Appeal (civil) 4799-4844 of 1997; Consistency is the cornerstone of the administration of justice. It is
consistency which creates confidence in the system and this consistency can never be achieved without respect to the
rule of finality. It is with a view to achieve consistency in judicial pronouncements; the courts have evolved the rule
of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are
not followed by courts then there will be chaos in the administration of justice.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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legislature by the Constitution,27 it is humbly submitted that the said public interest

litigation is not admissible as it is sheer waste of time of this Honble Court.

1.5 The Public Interest Litigation is Frivolous- The courts, while exercising jurisdiction and

deciding public interest litigation, has to take great care primarily, for the reason that wide

jurisdiction should not become a source of abuse of process of law by disgruntled

litigation.28

In order preserve the purity and sanctity of the PIL it has become imperative to issue

direction that the courts must encourage genuine and bona fide PIL and effectively

discourage and curb the PIL filed for extraneous consideration.29

Genuine and bona fide public interest litigation should be admissible whereas

the frivolous public interest litigation should be discouraged and the Courts must

take effective steps to prevent and cure its abuse on the basis of monetary and non-

monetary directions.30

People must not rush to courts to file cases in profusion under the attractive name of

public interest. They must inspire confidence in courts and amongst the public. Time

has come to weed out petitions, which though titled as public interest litigation are in

essence something else.31

27
Yaro Khan v. Union of India, WP(C) 2599 of 2007
28
Kalyaneshwari v. UOI.,2011 3 SCC 287
29
State of Uttaranchal v. Bhalwant Singh Chaufal., Civil App. No. 1132., 1134 (2002)
30
Federation Of Indian Placer ... v. M/S.Bala Murugan Chemicals ... on 26 July, 2012
31
Ujwala J. Patil v. Slum Rehabilitation Authority ... on 9 August, 2016

MEMORANDUM ON BEHALF OF THE RESPONDENT


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The most significant point to note in regard to public interest litigation is that it

disregards the traditional concept of locus standi which means that only the person

whose legal rights are been violated can approach the court for redress.32

Therefore, it is contended that the Public Interest Litigation filed by the Humanity Improvement

Venture was to weed out the time of this Honble Court.

ISSUE- II

WHETHER THE BYE- LAWS ENACTED BY THE PRIVATE SECTOR

UNDERTAKINGS ARE VIOLATIVE OF ARTICLE 21?

It is humbly submitted before the Honble Court that the Bye- Laws made by the Private

Sector Undertaking are not violative of Articles 14, 16 and 21 and rule of law.

The same can be proved on the grounds as mentioned under:

Whether or not the policy of the private sector undertaking has been framed

arbitrarily? (2.1)33

Whether the policy decision of the private sector undertaking violates Article 21.

(2.2)34

2.1 Whether or not the policy of the private sector undertaking has been framed

arbitrarily?

32
Villianur Iyarkkai Padukappu Maiyam v. UOI., (2009) 7 SCC 561: (2009) 8 JT 339
33
Legislating an Epidemic: HIV/AIDS in India, Lawyers collective

34 HIV/AIDS and Legal, Ethical & Human Rights Concerns

MEMORANDUM ON BEHALF OF THE RESPONDENT


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The respondent submits that the policies of the private sector undertaking have not been framed

arbitrarily. The decision has been taken in consonance with various provisions of various acts in

the interests of economic development.35

2.1.1. The Provisions and the Bye Laws of the Private Sector Undertakings have

been framed based on the Rule of Law-

The respondent humbly submits that the rules and bye laws as well as the private

sector undertakings policies have been framed on strict reasons and does not

violate the provisions of the Constitution or any other General Law.36

In the absence of arbitrary power is the primary postulate of Rule of Law upon

which the whole constitutional edifice is dependant 37 , hence it can be proven

before this Honble Court that the provisions do not violate the principal of

natural justice.38

The audi alteram partem rule, in essence, enforces the equality clause in Art 14 and it

is applicable not only to quasi-judicial bodies but also to administrative order.39

In the given scenario, the private sector undertaking has framed their termination

policies as under the provisions of Sec. 2(oo). 40 , which is not violative of the

principle enshrined in 15 (4)

35
Corporate responses to HIV/AIDS: case studies from India
36
Atam Prakash v. UOI. [(1986) 2 SCC 249]

37 Som Raj & Ors. v. State of HR & Ors., 1990 AIR 1176, 1990 SCR (1) 535
38
The Struggle for Access to Treatment for HIV/AIDS in India, Rachel Stephens

39
Delhi Transport Corporation v. DTC Mazdoor Union., 1991 AIR 101, 1990 SCR Supl. (1) 142
40
Industrial Disputes Act, 1947

MEMORANDUM ON BEHALF OF THE RESPONDENT


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Section 2 (oo) of the Industrial Disputes Act, 1947 defines Retrenchment as -

the termination by the employer of the service of a workman for any reason

whatsoever, otherwise than as a punishment inflicted by way of disciplinary

action, but does not include

(a) voluntary retirement of the workman, or

(b) retirement of the workman on reaching the age of superannuating if the

contract of employment between the employer and the workman concerned

contains a stipulation in that behalf; or

(b) termination of the service of the workman as a result of the non-removal of the

contract of employment between the employer and the workman concerned on its

expiry or of such contract being terminated under a stipulation in that behalf

contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health;

OR

The private sector undertaking frame their bye- laws on the following general

laws of land41:

Trade unions Act 1926; Industrial Employment (Standing Orders) Act, 1946;

Factories Act, 1948; Minimum Wages Act, 1948; Payment of Bonus, 1965; etc.

Article 31C. Notwithstanding anything contained in article 13, no law giving

effect to the policy of the State towards securing [all or any of the principles laid

down in Part IV] shall be deemed to be void on the ground that it is inconsistent

with, or takes away or abridges any of the rights conferred by 5[article 14 or

41
Ravi Singhania., Employment Law in India., 2nd Ed.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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article 19];42and no law containing a declaration that it is for giving effect to such

policy shall be called in question in any court on the ground that it does not give

effect to such policy: Provided that where such law is made by the Legislature of

a State, the provisions of this article shall not apply thereto unless such law,

having been reserved for the consideration of the President, has received his

assent.43

Therefore, the respondents prove that the questioning the bye- laws of private

sector undertaking is like indirectly questioning the validity of the government

made legislations which becomes unconstitutional.

Therefore, with the aforesaid provisions, it is clear that the grounds for

termination of employment is incompetence to work.44

2.2 Whether the policy decisions of the private sector undertaking invoke Article 21?

2.2.1 Importance of Livelihood vs. Importance of dignity

Article 21 is occupies a place of pride in the Constitution. The article mandates that no

person shall be deprived of his life and personal liberty except according to the procedure

established by law.45

Humania, being a signatory to the International Covenant on Civil and Political Rights,

1966 compels Article 21 of the Humania Constitution to be interpreted in conformity

with international law.46

42
Kesavanantha Bharti v. UOI., (1973) Supp. S.C.R. 1, the Supreme Court held the provision in italics to be invalid.
43
Constitution of Humania, 1950
44
Pg. 15 moot problem., Para 1
45
Durga Das Basu, Shorter Constitution of India 364 (14th Ed, 2010)
46
Peoples Union for Civil Liberties v. UOI (1997)1SCC301 (Paras. 20&26)

MEMORANDUM ON BEHALF OF THE RESPONDENT


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The state has the obligation to preserve the dignity as well as the livelihood of every

person. That which alone can make it possible to live must be declared to be an integral

component of the right to life.47

Thus, in the said ground the respondent submits that the state is duty bound to provide

employment opportunities and economic empowerment.48

Therefore, the policy decisions of the government with regards to the private sector

undertakings bye laws are not violative of Art. 21; because the bye- laws of a private

company are statutory.49

Therefore the policies and the bye laws made by the private sector undertaking does not

curb the livelihood of any HIV infected employee; because the government of Humania

is taking necessary steps as regard the protection of HIV infected employees.

2.2.2 Termination from employment Vs. Right to Livelihood

Since, Humania is signatory to the International Labour Organisation; it has set standard

as to the conditions for termination, which clearly states that incompetence to work and

frequent leaves are grounds for termination of employees.50

Since it is enumerated in the Constitution of Humania 51 ; to foster and respect the

international law and treaty obligations in the dealings of organized peoples with one

another, it deems fit that the termination of employment does not affect the right to

livelihood.

47
Paramanand Katara vs UOI, AIR 1989 SC 2039( para 7&8)
48
Ashok kumar Gupta vs UOI, (97) 5SCC 201 (para 26)
49
Margadarsi Chit Funt Pvt. Ltd., v. Government Of A.P., 1999 (5) ALD 718, 1999 (5) ALT 548
50
Convention 158, Termination of Employment Convention, 1982
51
Art. 51(c)

MEMORANDUM ON BEHALF OF THE RESPONDENT


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The absence of eight days from the date of the last post and nothing happens lien

automatic loss of the automatic termination of the service and terminating the mandate of

the force required to pass by the management.52

Thus, yet again it is conceded and presented before this Honble Court by the respondent

that the termination of service of employment on the grounds of frequent holidays, which

results in huge loss is a valid ground and it not violative of right to livelihood as

enshrined in the Constitution of Humania.

Deprivation of livelihood, though affected by termination of service, should be just and

reasonable and to be carried out with procedure established by law.53

Hence, the ground of termination must be dealt with; and in the instant matter the PIL at

the very stand is invalid, as it prima facie does not invoke any fundamental right.

Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty

and for that matter on right to livelihood.54

The concept of life and liberty within Art.21 from the right to carry on any trade or

employment or business, a fundamental right conferred by Art. 19(1) (g) and the right to

carry on trade or business or employment are not included in the concept of life and

personal liberty. Article 21 is not attracted in case of trade and business.55

The Court rejected that right to employment at the present point of time can be included

as a fundamental right under Right to Life under Art. 21.56

52
Roberto de Souza's case (AIR 1982 SC 854)
53
Kraipak v. UOI., (1970) 1 SCR 457: (1969) 2 SCC 262: AIR 1970 SC 150
54
M.P. Jain, Indian Constitutional Law, Wadhwa, 5 th Ed. (2003), p. 1315
55
Sodan Singh v. New Delhi Municipal Committee., AIR 1989 SC 1988
56
Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1: AIR 2006 SC 1806.

MEMORANDUM ON BEHALF OF THE RESPONDENT


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Protection of Life and Personal Liberty No person shall be deprived of his life or

personal liberty except according to procedure established by law, therefore, the bye

laws made by the private sector undertaking regarding the termination are exceptions to

the Art.21 as accordance to procedure established by law.

The argument that the word life in Article 21 of the Constitution includes livelihood

has only to be rejected. The question of livelihood has not in terms been dealt with by

Article 21.57

Therefore, it is humbly asserted before this Honble Court that the Bye Laws are statutory laws

and cannot be invoked under Art. 21.

ISSUE- III

WHETHER THERE ARE ALTERNATIVE REMEDIES AVAILABLE FOR THE HIV

INFECTED EMPLOYEES?

The government is taking necessary steps as regard the protection of HIV infected

Employees and providing them with legal aids and remedies.

The remedies and measures taken by the Government of Humania are mentioned as

under-

Prohibition of discrimination against HIV positive persons: There are various grounds on

which discrimination against HIV positive persons and those living with them are

prohibited. These include the denial, termination, discontinuation or unfair treatment

with regard to: (i) employment, (ii) educational establishments, (iii) health care services,

57
In Re Sant Ram, AIR 1960 SC 932

MEMORANDUM ON BEHALF OF THE RESPONDENT


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(iv) residing or renting property, (v) standing for public or private office, and (vi)

provision of insurance (unless based on actuarial studies). The requirement for HIV

testing as a pre-requisite for obtaining employment or accessing health care or education

is also prohibited.58

HIV-I, AIDS in Humania was first identified among the commercial sex workers (CSW)

in 1986. Soon the government of Humania constituted a high-powered committee in

1986.59

In 1987, the National AIDS Control Programme (NACP) was launched.60

With the support of the international agencies such as World Bank, UNAIDS, UNDP and

WHO, the ministry formally established the National AIDS Control Organisation with

the prime function of policy formulation, prevention and control programmes.61

The priorities were focused on public health-related information and the IEC

(Information, Education and Communication) for disseminating the curative measures as

well as to bring about an overall behavior changes to drive away the menace.62

The 2006 estimates suggest national adult HIV prevalence in India is approximately 0.36

percent, amounting to between 2 and 3.1 million people. If an average figure is taken, this

58
The Human Immuno-deficiency Virus and Acquired Immuno Deficiency Syndrome (Prevention and Control Bill),

2014
59
National AIDS Committee (NAC) 1986
60
The ministry of Health and Family Welfare
61
Government of Humania (2004), National AIDS Policy 2004: source of Infections in AIDS cases in Humania
62
The National Health Policy 2002

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comes to 2.5 million people living with HIV and AIDS; almost 50 percent of the previous

estimate of 5.2 million.63

The specific objectives of the policy are: 64

(i) To reiterate strongly the Governments firm commitment to prevent the spread of HIV

infection and reduce personal and social impact.65

(ii) To generate a feeling of ownership among all the participants both at the

Government and non-Government levels, like the Central Ministries and agencies of the

Government of India, State Governments, city corporations, industrial undertakings in

public and private sectors, panchayat institutions and local bodies to make it a truly

national effort.66

(iii) To create an enabling socio-economic environment for prevention of HIV/AIDS, to

provide care and support to people living with HIV/AIDS and to ensure

protection/promotion of their human rights including right to access health care system,

right to education, employment and privacy. To mobilise support of a large number of

NGOs/ Community Based Organisations (CBOs) for an enlarged community initiative

for prevention and alleviation of the HIV/AIDS problem.67

63
Report by NACO, the National Institute of Health and Family Welfare and the National Institute of Medical

Statistics (a body under ICMR) estimated Humanias population living with HIV and AIDS.
64
National AIDS Prevention & Control Policy, affiliated with the UNESCO.
65
Chhotulal Shambahi Salve (CSS) v State Of Gujarat (2001) (Unreported Special Civil Application No. 11766 of
2000
66
A v Union of India (Unreported [28 November 2000] In the High Court at Bombay, WP No 1623 of 2000 and

Review Petition No 3 of 2000)


67
http://www.un.org/ga/aids/coverage/FinalDeclarationHIVAIDS.html

MEMORANDUM ON BEHALF OF THE RESPONDENT


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(iv) To decentralise HIV/AIDS control programme to the field level with adequate

financial and administrative delegation of responsibilities.68

(v) To strengthen programme management capabilities at the State Governments,

municipal corporations, panchayat institutions and leading NGOs participating in the

programme. 69

(vi) To bring in horizontal integration at the implementation level with other national

programmes like Reproductive and Child Health, TB Control, Integrated Child

Development scheme and with the primary health care system.70

(vii) To prevent women, children and other socially weak groups from becoming

vulnerable to HIV infection by improving health education, legal status and economic

prospects.71

(viii) To provide adequate and equitable provision of health care to the HIV-infected

people and to draw attention to the compelling public health rationale for overcoming

stigmatisation, discrimination and seclusion in society.72

(ix) To constantly interact with international and bilateral agencies for support and

cooperation in the field of research in vaccines, drugs, emerging systems of health care

and other financial and managerial inputs.73

68
S. Indian Inhabitant of Mumbai v. Director General of Police, CISF and others (Unreported [2004] High Court at

Bombay in WP No. 202 of 1999)


69
International Guidelines on HIV/AIDS and Human Rights, 1996 Sept.
70
Convention on the Elimination of All forms of Discrimination Against Women (CEDAW-1979) & Convention on

the Rights of the Child (CRC-1989)


71
International Covenant on Economic, Social and Cultural Rights (ICESCR-1966)
72
International Convention on the Elimination of All Forms of Racial Discrimination (CERD-1965)

MEMORANDUM ON BEHALF OF THE RESPONDENT


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(x) To ensure availability of adequate and safe blood and blood products for the general

population through promotion of voluntary blood donation in the country.74

(xi) To promote better understanding of HIV infection among people, especially students,

youth and other sexually active sections to generate greater awareness about the nature of

its transmission and to adopt safe behavioral practices for prevention.75

Therefore, with the light of so many alternatives and the remedy measures taken up

by the Government of Humania, it was unnecessary to have filed the Public Interest

Litigation to enact laws.

73
National Conference on Human Rights and HIV/AIDS, November 2000
74
People Living with or Affected by HIV/AIDS (PLWHA)
75
Regional Human Development Report- HIV/AIDS and Development in South Asia, 2003

MEMORANDUM ON BEHALF OF THE RESPONDENT


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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Honble Court be

pleased to:

1. Dismiss the Public Interest Litigation

2. Award damages for filing an erroneous petition

3. In the alternative declare and adjudge:

That the Bye- Laws of the Private Sector Undertaking with regard to the HIV infected employees

are not violative of the principles laid down in the Constitution of Humania.

Also, it is entirely a matter of executive branch of the government to decide whether or

not to introduce laws regarding the protection of HIV infected employees.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good

Conscience.

And for this, the Respondents as in duty bound, shall humbly pray.

COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT