Rights of People with HIV Aids in India

Introduction:

Despite the passing of a quarter-century after AIDS/HIV was identified, the stigma associated with it has not faded. The difficulty that states, communities, and individuals face in confronting the HIV epidemic stems from the fundamental but difficult issues that it raises: issues of sex, sexuality, diversity, ‘nonconformist’ behavior, and inequality of all kinds in all spheres, issues that society have been uncomfortable dealing with and discussing for a long time. This is a pandemic that recognizes no boundaries of location, class, caste, gender, or sexual orientation. The number of people who have become victims of this ailment has grown to such astonishing proportions that a global effort has been launched to battle it. Persons Living With HIV/AIDS (PLWHA) have faced the most severe kind of discrimination in the workplace. In the event that PLWHA’s right to employment is infringed in the private sector, they have no specific legal recourse. 

Indian Scenario^[1] 

India accounts for over 10% of the 40 million persons living with HIV/AIDS worldwide, and more than 60% of the 7.4 million Persons Living with HIV in the Asia and Pacific area (PLWHA) – a few standard deviations increase in HIV prevalence rates may increase the number by several million. The history of HIV/AIDS in India may be divided into three distinct phases: 1986-1992, 1993-1997, and 1998-2000, during which the program was primarily focused on high-risk populations such as sex workers, truck drivers, injectable drug users, and people receiving blood transfusions.^[2] 

Regulating Laws to Protect HIV Aids Patients in India 

Even though there is no solid and complete legislation on HIV/AIDS patients, there are several fundamental regulations for patient safety and welfare, some of which are listed below. 

The Constitution of India 

The law of the nation, the Constitution of India, 1950^[3], guarantees every person equal and unbiased justice, liberty, and equality. AIDS sufferers have the following rights protected by different sections of the Constitution. 

• Article 14^[4] of the Constitution gives everyone the right to equality, which includes HIV/AIDS treatment. 
• Articles 15 and 16^[5] safeguard patients from any type of discrimination. 
• Article 21^[6] of the Constitution guarantees them the right to life and personal liberty, which also encompasses the reasonable expectation of privacy. 
• The Directive Principles of State Policy^[7] establishes some responsibilities of governments for AIDS sufferers. Articles 38 and 39^[8] discuss the state’s obligation to promote social welfare and secure it through social and economic resources, respectively. These responsibilities, however, are not judicially enforceable of law. 
• Article 39 of the Constitution requires governments to guarantee that all citizens, including HIV/AIDS sufferers, have an appropriate means of subsistence. 
• Article 42^[9] imposes an obligation on governments to establish arrangements for ensuring equitable and humane working conditions. 

Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulation, 2002^[10]

In the Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002, the Medical Council of India entrusts specific obligations that doctors must observe towards HIV/AIDS patients. These are listed below: 

• Before undergoing any medical operation, it is necessary to take care of the patient and obtain informed permission from him or her. 
• It is the doctor’s responsibility to inform the patient about the risks connected with the treatment. 
• It is your responsibility to tell them about the various alternatives and their benefits. 
• It is the hospital’s duty to notify him or her of the dangers and measures. 
• Despite prior authorization, a patient must be admitted in an emergency. 
• It is the physician’s responsibility not to forsake his patient for fear of catching the sickness himself. 

Immoral Trafficking Prevention Act, 1986^[11] 

In India, the Immoral Trafficking Prevention Act of 1986 addresses sex workers, and work-related concerns. The Act mandates the performance of mandatory medical examinations for the identification of HIV/AIDS. It also includes measures for mandatory testing of the same. 

HIV/AIDS Bill, 2007^[12] 

This Bill is the result of a collaboration between the government and civil society. It primarily addresses the status and protection of HIV/AIDS patients in all areas, whether at home or in society. It ensures that all patients have equal access to rights and opportunities. The Bill’s goal is to provide equitable and impartial opportunities for higher education, work, travel, insurance, healthcare, housing and property, and other sectors. 

The Bill requires patients to provide voluntary, free, and informed permission before their medical history or information is gathered and utilized for research purposes. The legislation shields risk-aversion tactics against civil and criminal liability, as well as harassment by law enforcement. This bill also includes provisions about the right to health-related information and education, as well as the protection of health from the state. The bill mandates the state to adopt evidence-based, age-appropriate, gender-sensitive, non-stigmatizing, and non-discriminatory IEC programs. 

The Bill calls for the appointment of a health ombudsman in each district to ensure that all people have simple and rapid access to health care. The Bill also draws a relationship between sexual violence and victims being more susceptible to disease than others, thus it offers counseling and therapies for sexual assault survivors and requests that states construct sexual assault crisis centers. 

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010^[13] 

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010, has strong measures to prevent HIV/AIDS prejudice. The act of inciting hatred against someone infected with AIDS is punishable under the Act. It also punishes those who spread such facts about the sick, which leads to the spread of hatred against the diseased individual. As per the proposed legislation, screening or testing cannot be an important condition for any type of job. Because of the same rationale, patients could not be refused access to public areas, education, or any sort of enjoyment. Even in the workplace, adequate precautions must be taken to create a safe and non-discriminatory environment for patients to work in.  

The Bill also includes a safety provision for minors under the age of 18 and women who are evicted and have the right to dwell in a shared property. To discourage rampant exploitation of HIV/AIDS patients, medical expenditures would be considered while calculating maintenance payments. 

The Bill further states that no one may be coerced into taking an HIV test. Before a person enters the stage of making a decision, proper counseling must be supported with a detailed breakdown of the pros and disadvantages. Permission must be freely given and informed. Apart from the courts, no patient can be requested to divulge his or her status under any circumstances. 

National Policy on HIV/AIDS and the “World of Work” Policy

At the 43rd Session of the Standing Labor Committee, the Ministry of Labor & Employment^[14] developed the “World of Work” and the “National Policy on HIV/AIDS^[15].” The Ministry of Labor and Employment created this policy in cooperation with the ILO (International Labor Organization), NACO^[16] (National Aids Control Organization), and social partners. The strategy attempts to raise awareness about AIDS while also urging people to take steps to prevent the transmission of the disease. It also attempts to make the workplace more supportive and encouraging of those in pain. The policy’s goal is to reduce the stigma associated with this condition and to foster an environment of equitable treatment and opportunity in the workplace. It seeks to provide a haven for victims of social stigmas and prejudice, as well as to prevent the transmission of HIV among co-workers and raise public awareness about the issue. Persons infected with HIV can work if they are physically fit. If a test is being administered, the individual may prefer to remain anonymous during the procedure. When the research centers come in to gather the medical records of those individuals, they must get, written, and informed permission. The exams and study can only be carried out by professional nurses and certified authorities. 

Legal Provisions in International Conventions

The United Nations Declaration of Human Rights^[17] 

With the passage of time, the United Nations has taken several efforts to ensure equality and human rights for all persons, including AIDS sufferers. The United Nations Declaration of Human Rights guarantees all humans, including AIDS sufferers, the right to equality. It also includes provisions about equal employment opportunity, personal liberty, opportunity, and security. Various treaties attempt to eliminate prejudice and stigma associated with patient rights, particularly AIDS. Everyone, including HIV-positive people, has the right to work and participate in community cultural and social life, as well as to appreciate art and share scientific advances. Repeatedly, UN conventions have objectively fought to ensure that all people, including AIDS sufferers, are treated equally before the law and enjoy equal protection under the law. The global community is always looking for innovative solutions to safeguard HIV/AIDS patients. This establishes the reality that AIDS patients face challenges not just in India, but also in several other nations in obtaining the same rights and possibilities. 

The Joint United Nations Programme on HIV/AIDS (UNAIDS)

The Joint United Nations Programme on HIV/AIDS (UNAIDS)^[18] guidelines have established all the grounds on which HIV-affected people’s rights are recognized. However, despite all these attempts, some aspects must be considered, such as punished persons and sex workers who inject themselves with drugs, criminalizing actions such as men having sexual intercourse with other men (MSM), or transgender people. It also keeps people away from health and social services that may help them because they are afraid of being prosecuted. It also lends authenticity to discrimination and socially perceived stigma that increase risk-taking behavior as they are more likely to be victims of sexual violence. They are more likely to be victims of sexual violence, those tabooed populations will be hesitant to access justice systems for fear of being prosecuted and discriminated against when hiring them. As a result, the policy’s entire aim is defeated because individuals are already stigmatized or unwilling to connect. or work within the auspices of policymakers to develop viable HIV initiatives. As a result, it may be demonstrated that marginalizing or criminalizing the behavior of susceptible interested parties not only violates their human rights but also deteriorates their health while undermining the larger aim of the conventions and enactments.

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017^[19]

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017, was approved by the Indian Parliament, which acknowledges and discusses the rights of HIV/AIDS patients. This Act makes antiretroviral medication a legal entitlement for HIV/AIDS patients, stating that “any individual under the care and custody of the state must have the right to HIV prevention, testing, treatment, and counselling services.” This act also requires governments to offer therapy that is accessible and has administration centers. It also discusses actions that states might take to confront the problem of shareholder stigmatization, as stated in the subsequent sentences. 

Right to Treatment^[20] 

This Act grants HIV/AIDS patients a unique entitlement to treatment. This Act, in addition to providing medication, defines Antiretroviral Therapy (ART) therapy and makes the government accountable for it. In this sense, the subject to the provisions is critical. 

1. Section 13 says that the Central Government and State Governments, as applicable, must adopt all necessary and critical steps to prevent the spread of HIV infection or AIDS in conformity with the requirements. 

2. Section 14 states that the countermeasures by the Central Government or the State Government under section 13 must include, to the greatest extent possible, diagnostic facilities for HIV or AIDS, antiretroviral therapy, and opportunistic infection management for patients living with HIV or AIDS. Furthermore, the Central Government should publish appropriate recommendations for HIV and AIDS protocols pertaining to laboratory procedures, anti-retroviral therapy, and unscrupulous infection management that will apply to all people and will be widely disseminated. 

Confidentiality 

Section 8 of the Act states that notwithstanding anything embedded in any other law currently in force: 

“(i) No person shall be compelled to disclose his HIV status except by an order of the court that the disclosure of such information is necessary for the interest of justice for the determination of issues in the matter before it;  

(ii) No person shall disclose or be compelled to disclose the HIV status or any other private information of another person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in Section 5, as the case may be, and the fact of such consent has been recorded in writing by the person making such disclosure: Provided that, in case of a relationship of a fiduciary nature, informed consent shall be recorded in writing.”^[21] 

Right against discrimination and Right to Employment

Section 3 of the Act states that no one may support discrimination against a protected person on any basis, including any of the following^[22]: 

“(a) the denial of, or termination from, employment or occupation, unless, in the case of termination, the person, who is otherwise qualified, is furnished with- 

(i) a copy of the written ……..the duties of the job; and 

(ii) a copy of a …….reasonable accommodation;  

…………person; (l) HIV testing as a prerequisite for obtaining employment, or accessing healthcare services or education or, for the continuation of the same or, for accessing or using any other service or facility” 

Case Laws 

MR. ‘X’ versus Hospital ‘Z’ case 

Mr. X, the appellant, in this case, was a doctor by profession who worked as a physician for the Nagaland State Government. As part of his job, he was assigned to accompany a patient suffering from an ‘aortic aneurysm’ to Madras’ Hospital ‘Z.’ Ms. Y’s marriage to the appellant was arranged after he returned to Nagaland. The marriage was eventually postponed after it was revealed that the blood obtained from Mr. X by the Hospital in Madras was HIV positive. 

The marriage was finally called off when medical tests revealed that the blood contained HIV. The guy was stigmatized, and the community to which he belonged shunned him. He had to leave Nagaland and live in Madras since he could not take it any longer. With the assistance of several international agreements, legislative laws, and decided judgments, the Supreme Court has dealt extensively with the aforementioned concerns, as well as other connected ones. It was emphasized that clinicians must preserve anonymity in AIDS cases. The court also acknowledged that the right to privacy is a basic right and that medical professionals must preserve confidentiality. And he/she is only permitted to present things before the orders of the judge in a court of law. Based on this clause, it was contended before the Supreme Court that the patient’s right to privacy entails a corresponding right on the part of the doctor to maintain confidentiality. 

However, after reviewing all the facts and law, the court referred to the General Medical Council of Great Britain’s guidelines on HIV infection and AIDS, which state, among other things, that “Regardless of the patient’s preferences, a doctor may consider it an obligation to guarantee that any sexual partner is told.” Finally, the court decided that the public interest would take precedence over the obligation of secrecy, especially when there is an immediate or future health danger. Because of such restrictions, the court found the respondent hospital’s action in revealing the appellant’s HIV positive status to the previously prospective wife and others to be justified. Thus, the court, in this case, concluded that, although the appellant was an HIV positive patient, the release of information of the fact would not qualify as a violation of either the confidentiality clause or an infringement of his right to privacy because Ms. Y, to whom the plaintiff could have married, could be saved in time because of the disclosure; otherwise, she would have been a victim of this dreadful disease if the marriage had taken place and had it b 

Chhotulal Shambahi Salve v. the State of Gujarat^[23]  

In this instance, the petitioner was chosen for the position of unarmed Police Constable and his name appeared on the selection list. He took the medical fitness exam; however, the Civil Surgeon issued a letter dated September 20, 1999, stating that the petitioner was not medically fit due to his HIV status. Following receipt of this letter, the respondents removed the petitioner’s name from the select list and did not examine his application for appointment. The respondents’ action in removing the petitioner’s identity from the chosen list is unlawful and violates Articles 14 and 16 of the Constitution. Aside from the fact that the petitioner’s blood tested positive for HIV, he was completely qualified to perform the responsibilities of an unarmed police constable. The case of MX v. ZY was used to render a decision in this case. In that instance, the Supreme Court stated that a person suffering from AIDS could not be refused government employment. It was ruled that the respondents’ action in removing the petitioner’s name from the chosen list is void and that the respondents are instructed to reinstate the petitioner in the select list. 

Conclusion

The problems associated with HIV/AIDS are not limited to the protection of life, but also legal issues concerning the rights of individuals affected. There is a major stigma in Indian society that has resulted in severe discrimination in the past, necessitating the necessity for the protection of the affected members’ human rights. In addition to preventing rights from being infringed, there is a need to keep such discriminatory behavior in control in order to guarantee that individuals, particularly high-risk populations, have access to HIV AIDS prevention and treatment programs. As a result, laws controlling these issues and protecting the rights of HIV sufferers became necessary. In addition to the government’s effort, numerous non-governmental organizations (NGOs) have made important contributions in solving these problems in a variety of methods.

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References:

[1] Human Rights perspective on Hiv/Aids Vis-a-Vis Right to employment of persons living with Hiv/Aids www.legalserviceindia.com, https://www.legalserviceindia.com/articles/hu_aids.htm 

[2] Legislating An Epidemic (HIV/AIDS In India), The Lawyers Collective, Universal Law Publishing Co

[3] Constitution of India | National Portal of India India.gov.in,

[4] India Const. art. 14.

[5] India Const. art. 15 and 16.

[6] India Const. art. 21

[7] PART IV DIRECTIVE PRINCIPLES OF STATE POLICY , https://www.mea.gov.in/Images/pdf1/Part4.pdf 

[8] India Const. art. 38 & 39.

[9] India Const. art. 42.

[10] (Beta version)National Institute of Health & Family Welfare Nihfw.org, http://www.nihfw.org/Legislations/THEINDIANMEDICALCOUNCILACT_1956.html#:~:text=Contact%20Us-

[11] India: The Immoral Traffic (Prevention) Act, 1956 [India],   1956, available at: https://www.refworld.org/docid/54c210604.html 

[12] OHCHR and UNAIDS (2007), Handbook on HIV and Human Rights for National Human Rights Institutions.

[13]Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, www.indiacode.nic.in (2017), https://www.indiacode.nic.in/handle/123456789/2254?view_type=search&sam_handle=123456789/1362 

[14] Home | Ministry of Labour & Employment | GoI labour.gov.in,

[15] HIV and AIDS (HIV and AIDS) Ilo.org, https://www.ilo.org/global/topics/hiv-aids/lang–en/index.htm 

[16] National AIDS Control Organization | MoHFW | GoI naco.gov.in, http://naco.gov.in

[17] Universal Declaration of Human Rights United Nations, 

[18] India Unaids.org, 

[19] Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, www.indiacode.nic.in (2017), https://www.indiacode.nic.in/handle/123456789/2254?view_type=search&sam_handle=123456789/1362 

[20] Id. 18

[21] Id. 19

[22] Id. 20

[23] 1996 SCC (2) 26 Chhotulal Shambahi Salve v. State of Gujarat