India has taken lot of steps to protect HIV /AIDS persons by providing number of covenants. The Universal Declaration of Human Rights also lays down that the principle of non-discrimination is fundamental to human rights law. It equally applies to people suffering from HIV/AIDS because they have to suffer a very high level of stigma and discrimination. This article looks in depth the rights of HIV Patients in India.
HIV/AIDS is one of the biggest challenges faced by India. There are about three million people suffering from HIV/AIDS in India. The socioeconomic condition of the country coupled with the traditional outlook and the myths associated with the things has made it more vulnerable to the disease. Poor literacy level is one of the biggest causes of the spread of the disease. The disease has a very serious social stigma attached with it. People infected with HIV/AIDS are discriminated at every place and are looked upon in the society. The major field where they feel the effects of this disease is at the workplace. The disease not completely curable but measures can be followed to prevent it. Imparting knowledge and creating awareness amongst the people with regard to the disease, its causes, its effects can help in reducing it from spreading further.
WHAT IS AIDS
Acquired Immune Deficiency Syndrome (AIDS) is the term given to a combination of symptoms which results from a breakdown of the immune system. It is the final stage of HIV infection, which causes severe damage to the immune system and causes fatal infections. This is a disease in which the defense system of the human body is weakened and gives rise to a variety of symptoms leading to various disorders and set of diseases. AIDS is caused by a virus known as HUMAN IMMUNODEFICIENCY VIRUS (HIV). The virus attacks the immune system and leaves the body vulnerable to a variety of life-threatening infections and cancers.
HIV is transmitted primarily through sexual intercourse (including oral, vaginal, and anal sex), through transfusion of infected blood, by use of non-sterile, HIV infected or contaminated syringes and needles and from an infected mother to her unborn child.
LEGAL PROVISIONS IN INTERNATIONAL CONVENTIONS
Union of India has signed various treaties, agreements and declarations relating to HIV/AIDS, the protection of rights of those who are HIV positive, those who are affected by HIV/AIDS and those who are most vulnerable to HIV/AIDS in order to secure their human rights and prevent the spread of HIV/AIDS. The two conventions that aim at nondiscrimination on the basis of creed, political affiliation, gender, or race are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights. They also cover within their ambit nondiscrimination of the people infected with HIV.
The Universal Declaration of Human Rights also lays down that the principle of non-discrimination is fundamental to human rights law. It equally applies to people suffering from HIV/AIDS because they have to suffer a very high level of stigma and discrimination. It lays down certain work related provisions for a HIV/AIDS infected people which includes right to life, liberty and security of person, no person should be subjected to forced testing and/or treatment or otherwise cruel or degrading treatment, all people including HIV+ persons have the right to work and participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits and all persons including the people living with a positive 'HIV' diagnosis are equal before the law and are entitled without any discrimination to equal protection by the law.
People diagnosed with HIV+ are also entitled the rights enshrined in Art. 25(1) of the Declaration which includes the right to adequate standard of living, assistance, medical care and necessary social services, and the right to security in the event of unemployment according to their needs and their treatment choices.
The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage in law reform. It also guides the states to identify legal obstacles so as to form an effective strategy of HIV/AIDS prevention and care. It also lays stress on enactment of anti-discrimination and other protective laws that would protect HIV/AIDS diagnosed people from discrimination in both the public and private sectors would ensure their privacy, confidentiality and ethics in research involving human subjects and would lay emphasis on education and conciliation and provide for speedy and effective administrative and civil remedies.
LEGAL PROVISIONS IN INDIAN LAWS
With a view to safeguard the rights of patients suffering from HIV?AIDS, the ministry of health and family welfare rightfully announced the enforcement of the crucial Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency (AIDS) Syndrome (Prevention and Control) Act, 2017.
This was done right after the landmark move of the Supreme Court to scrap out the provision of section 377 of the Indian Penal Code (IPC) which previously criminalized homosexuality. This decision has strengthened the rights of the lesbian, gay, bisexual, transgender and queer (LGBTQ+) community since it comprised of a large margin of HIV and AIDS inflicted population in India.
The ministry of health and family welfare rightfully enforced the Act via a gazette notification, and as such the Act in itself received its presidential assent on 20 April 2017. This Act clearly and undeniable prohibits all forms of discrimination against any person inflicted with HIV and AIDS and also gives informed consent and confidentiality with regard to the treatment of such individuals and places obligations upon the requisite establishments to safeguard their rights. The Act also sought to prevent and control the spread of HIV and AIDS and further created a process for redressal of any grievances regarding this issue.
As per the law, “No person shall discriminate against the protected person on any ground such as the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public, whether or not for a fee, including shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads, burial grounds or funeral ceremonies and places of public resort."
Moreover, this Act also states that no HIV test, medical treatment or research can be permitted to be conducted over any individual without their informed consent over the matter and also, no person is at all obligated to disclose the fact that they suffer from HIV in order to obtain employment or any services unless done with the informed consent of the individual or if a court order required such a person to do so. The legislation also safeguards the property rights of HIV positive individuals and provides that every HIV affected person below the age of 18 years shall have all the normal requisite rights of residing within a shared household and thus enjoy the facilities of the said household without being ousted or discriminated against.
The law further prohibits all individual from publishing any information or advocating any untoward feelings of hatred against HIV-positive individuals along with any person who is living with such persons.
The penalty for any violation of the Act through the means of publication of information about people living with HIV (PLHIV) or advocating hatred against them shall attract imprisonment ranging from three months to two years or a maximum fine of ₹ 1 lakh or both.
LEGAL PROVISIONS IN INDIAN MEDICAL COUNCIL ACT, 1956 (Professional Conduct, & Ethics) Regulations, 2002)
The Medical Council of India lays down certain duties that have to be observed by the doctors towards the HIV/AIDS patients. These are enumerated below:
- Duty to take care and to take informed consent from the patient.
- Disclosure of information & risks to the patient
- Provide information of options available & benefits
- Duty to warn
- To admit patient in emergency without consent
- The physician should not abandon his duty for fear of contracting the disease himself.
LEGAL PROVISIONS IN IMMORAL TRAFFICKING PREVENTION ACT, 1986
Immoral Trafficking Prevention Act, 1986 deals with sex work in India. The Act provides for conducting compulsory medical examination for detection of HIV/AIDS. It also made provisions for compulsory testing.
HIV/AIDS Bill, 2007
HIV/AIDS Bill is a joint initiative of the government and civil society. The Bill specifically prohibits discrimination of HIV/AIDS patients in public as well in private spheres. The Bill prohibits discrimination of a HIV/AIDS patient in matters of employment, education, healthcare, travel, insurance, residence and property, etc, based on their HIV status. It takes within its ambit all acts and omissions whether actual or perceived which are discriminatory on the basis of HIV status.
The Bill provides that the consent for HIV testing and research must be specific, free and informed. Consent for HIV-related testing, treatment and research. It further guarantees the confidentiality of HIV status of the person and also provides the exceptions under the information can be disclosed. A duty is imposed upon HIV/AIDS patient to prevent transmission of HIV virus through different means. The HIV/AIDS patients have been given a universal and free access to comprehensive treatment for HIV/AIDS and also for its prevention, care and support. The Bill specifically provides for protection of risk reduction strategies from civil and criminal liability and law enforcement harassment. According to the Bill, every person has the right to information and education relating to health and the protection of health from the State. The major focus of the Bill is upon women and young persons. It puts an obligation upon the State to institute IEC programmers which are that are evidence-based, age-appropriate, gender-sensitive, non-stigmatizing, and non-discriminatory.
The Bill provides for appointment of health ombudsmen in every district to provide easy and quick access to health services for all persons. It also makes provisions for internal complaints mechanisms in institutions. Grievance readdress provisions also include special procedures in courts with emphasis on fast trials and creative readdress. The Bill also recognizes certain rights for women, children and persons in the care and custody of the State who, due to social, economic, legal and other factors, find themselves more vulnerable to HIV and are disproportionately affected by the epidemic. It also recognizes the link between sexual violence and HIV and provides for counseling and treatment of sexual assault survivors and directs the setting up of sexual assault crisis centres.
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010 which is likely to be considered by the Cabinet, contains stringent provisions to check discrimination against HIV/AIDS patients. The Act punishes the act of discriminating against any person infected with HIV. It also makes punishable the dissemination of any such information which is likely to propagate hatred against the infected people.
According to the proposed bill, testing for AIDS cannot be a re-requisite for employment or for access to healthcare, education or public places. They can move courts against discrimination. Moreover the Bill proposes that any person infected with HIV/AIDS cannot be removed from job or denied employment except with a written assessment of a qualified and independent healthcare provider that the afflicted person indeed poses risks of transmission.
The Bill makes a safeguard provision against eviction for people below 18 years of age and a woman of any age wherein they would be entitled to live in a shared property. The medical costs will be factored in during any maintenance settlements. The law aims at deterring rampant victimization of HIV/AIDS patients.
The Bill proposes that no person can be forced to take an HIV test. Informed consent of the person concerned is a must for conducting a test that too after due counseling on all pros and cons. An HIV/AIDS patient cannot be subjected to medical treatment without his consent. A person cannot be compelled to disclose his HIV status except under the directions of the Court. A doctor can disclose his patient's HIV+ status to his partner if he believes there is a risk of infection. However, he would have to guard against such disclosure about a woman if there is apprehension that it can lead to her being abandoned or facing violence.
National Policy on HIV/AIDS and the World of Work” Policy
The National Policy on HIV/AIDS and the World of Work is a policy document formulated by the Ministry of Labor & Employment was launched at 43rd Session of the Standing Labor Committee. The Policy was developed by the Ministry of Labor & Employment after consultations with ILO (International Labor Organization), NACO (National Aids Control Organization) and Social partners. The policy is aimed at generating awareness about HIV/AIDS, encourage action to prevent its spread and further improve and develop the support and care initiatives at the workplace. It objective is to prevent transmission of HIV infection amongst workers and their families; protect right of those who are infected and provide access to available care, support and treatment facilities, deal with issues relating to stigma and discrimination related to HIV/AIDS by assuring them equity and dignity at the workplace and ensure safe migration and mobility with access to information services on HIV/AIDS.
The policy says that HIV/AIDS screening should not be required of job applicants or persons in employment or for purposes of exclusion from employment or worker benefits. In order to assess the impact of HIV, employers may wish to do anonymous, unlinked HIV prevalence studies in their workplace. These studies may occur provided it is undertaken in accordance with the ethical principles of scientific research, professional ethics and the protection of individual and confidentiality. Where such research is done, workers should be consulted and informed that it is occurring. Testing will not be considered anonymous if there is a reasonable possibility that a person’s HIV status can be deduced from the result. It also provides that HIV infection is not a cause for termination of employment. Persons with HIV related illnesses should be able to work for as long as medically fit in appropriate conditions. The other legislation, polices and agencies which provide protection to the HIV/AIDS patients are:
- Daman, Diu Public Health Act, 1985 Goa, Amended in 1986
- Indian Penal Code, 1860
- Drugs and Cosmetic Act, 1940
- Juvenile Justice (Care and Protection of Children) Act, 2000 and 2006.
- Maharashtra Protection of Commercial Sex Workers, Bill, 1994.
- Medical Termination of Pregnancy Act, 1971
- Narcotic Drugs and Psychotropic Substances Act, 1985
- National AIDS Control Organization (NACO), Department of AIDS Control, Policies and Guidelines.
Antiviral Therapy Guidelines for HIV infected Adults and Adolescents including Post-exposure.
- Condom Promotion by SACS - Operational Guidelines
- Data Sharing Guidelines
Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006
- Guidelines for HIV Testing, March 2007
- Guidelines for Network of Indian Institutions for HIV/AIDS Research (NIHAR)
- Guidelines for Prevention and Management of Common Opportunistic
Infections Guidelines for Setting up Blood Storage Centres
- Link Worker Scheme(LWS) Operational Guidelines
- NACO Ethical Guidelines for Operational Research
- NACO IEC Operational Guidelines
- NACO Research Fellowship-Scheme Under NACP-III
- National Guidelines on Prevention, Management & Control of Reproductive Tract Infection
- National Guidelines on Prevention, Management & Control of RTI including STI
National Policy on HIV/AIDS and the World of Work
- Procurement Manual for National AIDS Control Programme (NACP-III)Standards for Blood Banks and Blood Transfusion Services
- Surveillance Operational Guidelines
- Targeted Intervention for Migrants – Operational Guidelines
Targeted Interventions for High Risk Groups (HRGs)
- Targeted Interventions for Truckers – Operational Guidelines
- Voluntary Blood Donation – An Operational Guidelines
- National AIDS Control and Prevention Policy (NACPC)
- National Blood Policy (NIHFW)
- National AIDS Control Programme (NIHFW)
- National AIDS Prevention and Control Policy
- Suppression of Immoral Traffic in Women and Girls Act, 1956
- Young Persons (Harmful Publications) Act, 1956
- National AIDS Prevention and Control Policy
- The Indian Employers' Statement of Commitment on HIV/AIDS
- Joint Statement of Commitment on HIV/AIDS of the Central Trade Unions in India
- ILO Code of Practice on HIV/AIDS and the World of Work
- State AIDS Control Societies
- National Human Rights Commission
RIGHTS OF HIV/AIDS PATIENTRIGHT TO TREATMENT:
A person suffering from any ailment has the right to get treatment for his suffering. Treatment cannot be denied to a patient on the basis of his HIV/AIDS status. If any HIV/AIDS patient is denied treatment, it amounts to discrimination. The Supreme Court of India has issued directions to make second-line HIV/AIDS treatment available free of cost to all those who need it.
In the matter of LX v. Union of India, LX, an under trial who was tested HIV+ was denied antiviral therapy (ART) against AIDS after his release form the prison. In a petition filed by him, the Delhi High Court directed the Government to continue to provide ART to LX. Pursuant to the commencement of the ARV roll-out by the Government of India in April 2004, the High Court directed the government provide ART to LX under the ARV roll-out programme and to reimburse AIIMS for the costs incurred by them.
In another matter a pregnant lady infected with HIV+ was denied treatment by the hospital. In a petition filed by her husband, the Delhi High Court gave immediate directions to the Hospital saying that there was an urgent need to issue direction to ensure the protection of the right to health and life of the women and her foetus. A direction was issued to immediately arrange one unit of blood and further quantity of blood as may be required, from any of the authorized blood banks.
A person who has been diagnosed with HIV/AIDS has the right to keep his/her HIV/AIDS status confidential. Even the Courts have delivered judgments in their favour that if they do not want to disclose their identity they can use a pseudonym before the Courts to suppress their identity.
In the matter of Mr. X v. Hospital Z, the Supreme Court of India has held that the patients suffering from 'AIDS' deserve full sympathy and are entitled to all respect as human beings. They cannot be denied jobs on the basis of their HIV/AIDS status. It further held that although the doctor-patient confidentiality is an important and part of the medical ethics incorporated by the then Medical Council Act, a patient's right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse. Since acts likely to spread communicable diseases are a crime, the failure of the hospital to inform the spouse of the disease would make them participant criminals. Since Indian matrimonial laws provide venereal disease as a ground for divorce, a person suffering from a VD had no right to get married till he/s/he is fully cured and such a right must be treated as a 'suspended right'.
In another case of Mr. X v Hospital Z, the Supreme Court has held that its earlier judgment in Mr. X v Hospital Z to the extent that it suspended the right of people living with HIV/AIDS to marry is no longer good law and restored the right of an HIV + person to marry. However, it further held that this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage.
RIGHT TO EMPLOYMENT AND RIGHT AGAINT DISCRIMINATION AT WORKPLACE
Right against discrimination is a fundamental right possessed by a citizen of India. No one can be discriminated on the basis of his HIV/AIDS status in India. HIV/AIDS patients have a right of equal treatment everywhere and they cannot denied job opportunity or discriminated in employment matters on the ground of their HIV/IDS status.
In a landmark judgment in the matter of MX v. ZY, the Bombay High Court has held that no person could be deprived of his or her livelihood except by procedure established by law and that the procedure must be just, fair and reasonable. It further held that held that if a person is fit to perform his job functions and is otherwise qualified and does not pose a substantial risk to fellow workers he cannot be denied the job. Further, the Court held that a public sector employer cannot deny a person employment solely because he is HIV positive. Each determination of whether a person is incapable of performing the job must be made by conducting an individual inquiry taking into account the state of medical knowledge at the time. It was also held that in proper cases where a person can show that he or she would not be able to prosecute his or her career if his status is disclosed and in the interests of the administration of justice, the Court will permit the party before it to suppress his or her identity and prosecute or defend the proceedings under an assumed name.
In another case of G v. New India Assurance Co. Ltd, the Bombay High Court has held that a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive. The Court further held that a person’s HIV status cannot be a ground for rejection for employment as it would be discriminatory and would violate of the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution.
In the case of S v. Director General of Police, where the widow was denied compassionate employment because her husband had died because of AIDS, the Bombay High Court has held that there should be no delay in appointment in all claims of compassionate employment. If there does not exist a suitable post, a supernumerary post must be created. The court directed the respondents to create a supernumerary post for the petitioner within 8 weeks, and consider her case for grant of service quarters on priority basis in accordance with the rules.
In the matter of Mr. X, Indian Inhabitant Vs. Chairman, State Level Police Recruitment Board and Ors., the Andhra Pradesh High Court has held that treating all HIV positive persons as one single homogenous class, irrespective of the stage of the disease, for being denied appointment in the police force is in violation of Articles 14 and 16 of the Constitution of India. Some people found to be HIV positive may, under certain circumstances, be unsuitable for employment in the police force does not justify the exclusion from employment of all people who are living with HIV. A Rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and irrespective of the fact that he does not pose any threat to others at the workplace is clearly arbitrary and unreasonable and infringes the whole some requirement of Article 14 as well as Article 21 of the Constitution of India.
The Supreme Court of India has also advocated in the favour of better living for sex workers. It has also directed that the central and the state governments should prepare schemes for rehabilitation of physically and sexually abused women all across the country.
NEGLIGENCE IN BLOOD TRANSFUSION
In the case of P v. Union of India, the blood of a HIV patient was negligently donated to a pregnant lady who was later found to be infected with HIV+. In this case the Indian Navy being at fault compensated the victim with a Government job at Kolkata or the place where she desired, accommodation on her appointment on the usual terms and conditions, a sum of Rs. 10 lakhs from the date of filing of the writ petition @ 18% interest and medical treatment at the cost of the Government.NACO GUIDELINES AGAINST PRESCREENING TESTS CONDUCTED ON PROSPECTIVE EMPLOYEES: RIGHT TO INFORMED CONSENT
National AIDS Control Organization has issued a comprehensive HIV testing policy. According to the HIV testing policy, mandatory HIV testing should not be imposed as a precondition for employment or for providing healthcare services in private firms. Testing should be done after obtaining informed consent, with pre and post-test counseling and should be voluntary.
REMEDY IN CASES OF DISCRIMINATION OR DENIAL OF FACILITIES
In case a person infected with HIV/AIDS is denied treatment or any other facility to which a common man is entitled or is discriminated in any field on the basis of his/her HIV/AIDS status, the aggrieved person can file a petition before the Court for his/her readdress.
HELPLINE NUMBERS FOR HIV/AIDS PATIENTS
|SACS||Whether it is 1097 or any other number||Name of the place where the helpline is installed|
|Andhra Pradesh SACS||1097, 040-27714881, 27714355||Hyderabad|
|Himachal Pradesh SACS||1299||Shimla|
|Kerala SACS||0484 237020, 0484 2237030||Cochin|
|Puducherry SACS||1097||Puducherry & Karaikal|
|Punjab SACS||1800 180 2008||Punjab|
|Uttar Pradesh SACS||0522 - 2700419||Lucknow|
|West Bengal SAPCS||1097||Kolkata|
January 22, 2021