More than thirty years after the first clinical evidence of acquired immunodeficiency syndrome was reported, AIDS has become one of the most devastating diseases humankind has ever faced. More than 60 million people have been infected with the virus and nearly 30 million people have died of HIV-related causes.[i] AIDS has become the sixth-largest cause of death worldwide.
At the end of 2009, an estimated 33.3 million people globally were living with HIV. In that year alone, there were an estimated 1.8 million AIDS-related deaths and 2.6 million new HIV infections. Data from 2009 shows that the AIDS epidemic is beginning to change course as the number of people newly infected with HIV is declining and AIDS –related deaths are decreasing. India has one of the largest populations of HIV positive persons in Asia and the world. HIV/AIDS is one of the biggest challenges faced by India. There are about 3 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 rate is one of the biggest causes of the spread of HIV/AIDS. The disease has a very serious social stigma attached with it, and people infected with HIV/AIDS are discriminated at every place and are looked upon in the society, majorly at the workplace.
The disease is not completely curable but measures can be followed to prevent it. It is generally accepted widely over the world that there must be a twin strategy for combating HIV/AIDS – prevention and treatment, the Indian government has focused largely on prevention, with far less emphasis placed on treatment. 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.
In this context, the HIV/AIDS and the Law Initiative at HRLN uses a rights-based approach to support people affected by HIV against all forms of discrimination by defending their fundamental human rights including their right to life, health, privacy, education, employment, housing, and other matters.
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 immune system of the human body is weakened and gives rise to various types 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, HIV infected or contaminated syringes and needles and from an infected mother to her unborn child.
What Are Human Rights?
Human rights are broadly concerned with defining the relationship between individuals and the state. International human rights law dictates that governments should not do things such as torture people, imprison them arbitrarily, or invade their privacy. Governments should, however, ensure that all people in a society have shelter, food, medical care, and basic education. The concept of human rights has a long history, but the modern human rights movement dates back about 50 years to when the promotion of human rights was set out as one of the purposes and principles of the newly created United Nations.
The key human rights document and the cornerstone of the modern human rights movement is the Universal Declaration of Human Rights (UDHR). It is a common aspirational document, by and for governments, about what rights should exist for all people everywhere. The UDHR was adopted by the U.N. General Assembly on December 10, 1948. A number of international human rights treaties exist that further elaborate the rights set out in the UDHR, including:
the International Covenant on Civil and Political Rights
the Covenant on Economic, Social, and Cultural Rights
the Convention on the Elimination of All Forms of Racial Discrimination
the Convention on the Elimination of All Forms of Discrimination Against Women
the Convention on the Rights of the Child
Each of these documents lays out legally binding obligations for the governments that sign on to them. Countries that become party to international human rights treaties accept certain procedures and responsibilities, including periodic submission of reports on their compliance with the substantive provisions of the texts to international monitoring bodies.
Health and government responsibility for health in the context of the HIV/AIDS epidemics is codified in these documents in several ways. In almost all of them, the right to the highest attainable standard of physical and mental health appears in some form. Even more importantly, nearly every article of every document has clear implications for health and for HIV/AIDS.
What do human rights have to do with HIV and AIDS?
Human rights are inextricably linked with the spread and impact of HIV on individuals and communities around the world. A lack of respect for human rights causes the spread and makes worse impact of the disease. The spread of this disease among certain groups of people which depending on the nature of the epidemic and prevailing social, legal and economic conditions, include women and children, and particularly those living in poverty. AIDS and poverty are now mutually reinforcing negative forces in many developing countries.
RIGHTS OF HIV/AIDS PATIENT
RIGHT TO TREATMENT
A person suffering from any complication or disorder 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.
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 favor of patient that if they do not want to disclose their identity they can use alias before the Courts to suppress their identity.
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.
The Supreme Court of India has also advocated in the favor 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.
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.
National Policy on HIV/AIDS
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.
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 non discrimination 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.
IN INDIAN LAWS
There is no comprehensive law in India to deal with menace of HIV/AIDS and protect the people infected with the disease from discrimination and the social stigma attached with this disease. The law of land, the Constitution of India, 1950 guarantees every justice, liberty and equality. Article 14 guarantees the right of equality of treatment to the HIV/AIDS patients. Articles 15 and 16 protect them against discrimination. Article 21 of the Constitution protects their right to life and personal liberty and ensures their right to privacy. The Directive Principles of State Policy also cast a duty upon the States to ensure right to livelihood and prevent discrimination. Article 39 of the Constitution directs the States to ensure that all the citizens including the HIV/AIDS patients have an adequate mean of livelihood. Article 42 casts a duty upon states to make provisions for securing just and humane conditions of work. States have been entrusted with the duty to improve public health vide Article 47 of the Constitution.
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.
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.[ii]
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 centers.
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.[iii]
People living with HIV/AIDS, their friends and relatives, their communities, national and international policy- and decision makers, health professionals, and the public at large all, to varying degrees, understand the fundamental linkages between HIV/AIDS and human rights. The importance of bringing HIV/AIDS policies and programs in line with international human rights law is generally acknowledged but, unfortunately, rarely carried out in reality. Policymakers, program managers, and service providers must become more comfortable using human rights norms and standards to guide and limit the actions taken by or on behalf of governments in all matters affecting the response to HIV/AIDS. This requires genuine attention to building their capacity to recognize and promote the effectiveness between health and human rights and to appreciate more fully the potential gains when health interventions are guided by human rights principles. For human rights to remain relevant to legal and policy work in HIV/AIDS, the contact between the conceptual work being done on the linkage between HIV/AIDS and human rights and the realities faced by those working in advocacy and in policy and program design must be ongoing; it is the mutually supportive–although occasionally mutually challenging–interaction between these groups that will help keep this work vital and useful.
[i] Figures available
at: http://www.ohchr.org/EN/Issues/HIV/Pages/HIVIndex.aspx (Visited on September 8, 2015);
[ii] Legal Provisions available at: http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html (Visited on September 10, 2015);
[iii] HIV/AIDS Bill available at: http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html (Visited on September 11, 2015).
Author- Eshan Priyadarshy
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation university,Lucknow