Report No. 256

Chapter IV

The Domestic Legal Framework: Facilitating Direct and Indirect Discrimination against Persons affected by Leprosy in India

4.1 Several Indian laws are both directly as well as indirectly discriminatory against Persons affected by Leprosy. The issues surrounding such discrimination were taken up for consideration by the Rajya Sabha Committee on Petitions in 2008 and have also been deliberated upon by the same Committee in its Action Taken Report (Hundred and Thirty-Eight Report) of 2010.68 However, no affirmative action has been taken by the Central Government or by some of the State Governments, to modify or repeal any of the legislations that are applicable to Persons affected by Leprosy.

68. See 131st Report on Leprosy (n 45) and 138th Report on Leprosy (n 49).

4.2 Certain provisions under the Hindu Marriage Act, 1955, the Dissolution of Muslim Marriage Act, 1939, the Indian Divorce Act, 1869, the Indian Christian Marriage Act, 1872, the Special Marriage Act, 1954 and the Hindu Adoption and Maintenance Act, 1956, are directly discriminatory against Persons affected by Leprosy and consider Leprosy to be an 'incurable and virulent' disease. An infection from Leprosy for not less than two years, under these legislations, serves as a legitimate ground for divorce or separation between spouses.

4.3 Under the State Beggary Acts, Persons affected by Leprosy are earmarked in the same category as persons suffering from lunacy. Further, medical examination and arrest and detention of Persons affected by Leprosy for an unspecified duration are also provided for under these Acts, in line with past notions wherein Leprosy was considered to be incurable. Children, who are wholly dependent on begging until the age of five and who have a parent suffering from Leprosy, are also liable to be detained under such Acts.

The Life Insurance Corporation Act, 1956 contains a discriminatory provision, wherein higher premium rates are to be charged from Persons affected by Leprosy on account of the higher risk to their lives as understood through past notions. Several State Municipal and Panchayati Raj Acts, which are listed out in Chapter VII, also contain specific provisions that bar Persons affected by Leprosy from holding or contesting for civic posts.

4.4 In respect of indirect discrimination, relevant provisions under the Railways Act, 1989, the Motor Vehicles Act, 1988, the Industrial Disputes Act, 1947 and State Acts such as the Bombay Municipal Corporation Act, 1888, permit the denial of certain rights, privileges and concessions to persons who suffer from an infectious or contagious disease or disability. Leprosy, in light of its traditional understanding, continues to be included within the range of such contagious diseases and disabilities.

On the other hand, the Rehabilitation Council of India Act, 1992 and the Persons with Disabilities Act, 1995, do not include all categories of Persons affected by Leprosy within their purview, which results in the denial of access to special privileges for many of such persons.

4.5 In addition to the aforementioned legislations, the decision of the Supreme Court in Dhirendra Pandua v. State of Orissa, AIR 2009 SC 163 also adds to the long-standing notion of Leprosy being an incurable and infectious disease requiring segregation and special treatment. In the aforementioned case the criteria for selection of persons to civic offices under Sections 16(1)(iv) and 17(1)(b) of the Orissa Municipal Act, 1950 was discussed. The two sections disqualified Persons affected by Leprosy from occupying civic offices under the said Act.

The Supreme Court noted that although scientific developments now have a cure for Leprosy, few studies demonstrated that nearly 10% of the patients continue to harbour viable persisters of the disease, despite two years of regular therapy.70 The Court further noted that in light of available sources, it was evident that despite various measures, at the relevant time, reactivation of Leprosy could not be completely ruled out and was dependent on a multiplicity of factors.71

In light of its findings, the Court upheld the disqualification of the petitioner by observing that the legislature in its wisdom has rightfully retained the provisions in the statute that bar Persons affected by Leprosy from occupying civic offices, as there is a reasonable concern of the disease being contagious.72

70. AIR 2009 SC 163 at Para 19-21.

71. AIR 2009 SC 163.

72. AIR 2009 SC 163 at Para 27-29

4.6 It is pertinent to mention here however, that the Supreme Court observed in its discussion in the aforementioned case, that the notion about Leprosy was changing, given that in light of the recommendation of the Working Group on Eradication of Leprosy, appointed by the Government of India, several State Governments and Union Territories had repealed the antiquated Lepers Act, 1898 and similar State Acts that provided for the segregation and medical treatment of Persons affected by Leprosy.73

The Court stated that, keeping in view the research conducted on Leprosy along with professional inputs, the legislature may perhaps seriously reconsider its stance of retaining provisions in statutes that discriminated against such persons.74

73. AIR 2009 SC 163 at Para 30-31.

74. AIR 2009 SC 163.

4.7 The need for better treatment of Persons affected by Leprosy has also been recognised by Courts, in instances where Persons affected by Leprosy have been segregated or discriminated against. For example, in a recent order in the case of Pankaj Sinha v. Union of India, Supreme Court Order dated 28 November, 2014, Manupatra citation: MANU/SCOR/51230/2014, the Supreme Court again noted that even though Leprosy, as of today, is curable, on account of the lack of empathy shown by the concerned authorities, it still remains a stigmatic disease in the society. The Court also held that such stigmatisation affects human dignity and the basic concept of humanness.76

76. Supreme Court Order dated 28 November, 2014.

4.8 In the case of Maharashtra State Road Transport Corporation v. Uttam Shatrughan Raserao, 2002 (4) BomCR 68, the employment of the complainant was terminated as he was considered unfit to work. The complainant suffered from Leprosy and was considered to be in a poor condition to work in any post offered by the establishment authorities.

However, the Bombay High Court dismissed the arguments advanced by the establishment authorities, and held that since Leprosy is now curable, persons suffering from the disease need to be treated and rehabilitated instead of being shunned.78 The Court finally extended the grant of benefits in favour of the complainant in light of the clarifications issued by the establishment, wherein employees whose services were terminated on account of their permanent disability were entitled to a supplementary gratuity.79

In the case of Dhirendra Pandua as well, the Court took cognizance of the changing notions regarding Leprosy and called upon the legislature to consider changing the legislations applicable to Persons affected by Leprosy in light of scientific developments that had found a cure to the disease. Dhirendra Pandua v. State of Orissa (n 69) at Para 30-31.

78. 2002 (4) BomCR 68 at Para 4.

79. 2002 (4) BomCR 68.

4.9 Considering these legislative and judicial patterns and as noted in Dhirendra Pandua, the law applicable to Persons affected by Leprosy in India is obsolete as it adheres to specific standards of treatment and segregation that are no longer applicable to such persons, especially in light of the recent compelling developments in science and the discovery of MDT, which has emerged as a reliable and suitable cure for Leprosy.

4.10 Thus, a strong case can be made out for the need for legislative intervention in amending, modifying and/or repealing relevant provisions under various legislations that discriminate against Persons affected by Leprosy and seek to segregate them from the general public.