The Indian Law and HIV/AIDS Patients
One of the major challenges faced by our country is the HIV/AIDS. In India, about three million people are currently suffering from this epidemic. The disease cannot be cured completely but there are certain measures that can be adopted for its prevention. Various laws have been enacted by the Parliament for the betterment of the HIV community, but still people who are suffering from this disease face discrimination at work place and looked upon in the society. Despite bold initiatives and good intentions, hopeful promises and campaign slogans, it’s the epidemic which is wining.
This article represents the scenario/legal status of the Aids community whose members have been reluctantly drafted from every segment of the society.
What is AIDS?
Acquired Immune Deficiency Syndrome (AIDS) is the breakdown of the immune system. It is the final stage of HIV infection, where severe damage is done to the immune system and leads to fatal infections. South Africa has the largest population of HIV positives than any other country in the world at 5.9 million. Africa alone accounts for the 2/3rd of the deaths caused by HIV and is home to nearly 3 quarters of the youth living with the disease. The primary transmission of HIV is through sexual intercourse, transfer of infected blood, use of non sterile syringes and from an infected mother to her fetus.
International AIDS Society
The IAS was founded in 1988 and is the largest association of HIV professionals in the world, with having 180 countries as its member. IAS members include community practitioners, clinicians, program and policy planners, and public health and researchers.
In relation to HIV/AIDS, for the protection of the rights of those who are suffering from HIV/AIDS, affected by it and those who are vulnerable to it, India has signed a number of treaties, declarations and agreements. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, are the two major conventions that solely aim towards the fair and unprejudiced treatment of those who are affected by the HIV.
Article 25(1) of UN Human Rights Declaration enshrines certain rights which entitle the HIV positives to the standard of adequate living, medical care, assistance and necessary and other important/necessary social services.
Legal Provisions for HIV Positives in Indian laws
In India there is no law that deals with all or nearly all aspects or elements of HIV/AIDS and protects the HIV positives from being discriminated by the society and to uplift the mark of disgrace associated with this epidemic. The HIV/AIDS patients are conferred with the right of equality of treatment by virtue of Article 14 of the Constitution of India. Likewise, Articles 15,16 and 21 protect the HIV positives from discrimination and provide them right to life and personal liberty, ensuring their right to privacy. The state is directed to make certain that all citizens including HIV positives are to be provided with livelihood which is satisfactory or acceptable in quality or quantity. It is also the duty of the state to provide unbiased and tolerant working conditions.
Article 47 of the Constitution of India assigns the state with the responsibility for improving the health conditions in its territory.
HIV/AIDS (Prevention and Control) Bill 2019
HIV/AIDS Bill is a collective resourcefulness of the civil society and the Government. The Bill specifically prohibits the unjust or prejudicial behavior towards the HIV/AIDS patients in private as well in public areas of activity/interest in matters of education, healthcare, insurance, property and residence, employment and travel, etc. All the acts or omissions which are in actual or perceivable as inequitable come within the extent of this Act.
The Bill furnishes that the assent for HIV testing must be determined, free and informed. It further assures that HIV status of the person will remain privileged and also furnishes the exceptions under which the information can be unfolded. It also thrusts a duty on HIV/AIDS patient for prevention of transmission of HIV virus through various 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 paramount focus of the Bill is upon the young persons and women. It imposes a responsibility upon the State to appoint IEC programmers which are that are based on evidenced, sensitivity of gender, appropriate for age, not regarded as worthy of disgrace and non-discriminatory.
There is provision for appointment of health ombudsmen in each district. The Bill also envisages provisions for internal complaints mechanisms. The vulnerability of children, women and other persons towards the epidemic, who are in the custody of the State, due to various social, economic and other factors is acknowledged by the Bill and therefore they are provided with certain rights. The acknowledgement of the connection between HIV and sexual violence and provision for counseling is another important feature of the bill.
Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Bill, 2019
The paramount objective or the focal point of this act is to protect the HIV positives from being discriminated. This Act envisages penalties and penance for any discriminating act against the HIV positives. The propagation or publicizing of any information, which may spread hatred towards the HIV positives is punishable under this Act.
The Bill prohibits any organization to make testing of HIV a precondition if a person has applied for employment, or is accessing health care, public places or for that matter, education. Moreover the Bill prohibits any organization from dismissing any HIV positive, except in the case where there is a written evaluation from a qualified health professional that the particular person poses the risk of transmission of the disease.
The Bill safeguards provision people below 18 years and woman of any age from being convicted, wherein would be entitled to live in a shared property.
The Bill strictly prohibits from conduction of forceful HIV test of any person. Informed consent of the person is a must. The test is required to be conducted after due investigation of the pros and cons of the test. An HIV/AIDS patient cannot be subjected to medical treatment without his consent.
Rights of HIV/AIDS Patients
The rights of HIV/AIDS patients as conferred by Indian laws are as follows:
1. Right to treatment
People suffering from HIV/AIDS have the equal rights of treatment just as any other person suffering from any other ailment. Their right to treatment and proper care cannot be detained on the ground of their HIV positive status. Any denial towards the proper treatment and due care of HIV positives will amount to the act of discrimination. Various directions have been issued by the Supreme Court of India for the free of cost treatment of HIV/AIDS to those who need it.
A matter where a petition was filed by the husband of a pregnant lady, infected with HIV, as she was denied proper treatment from the hospital, the Hon’ble High Court of Delhi gave strict and immediate orders to the hospital for the proper treatment and protection of health and life the mother as well as her fetus. Directions to arrange blood from authorized blood banks, as required, was also given by the Hon’ble Court.
Any person who has been distinguished to have HIV/AIDS has the right to keep their HIV/AIDS status private. There are a number of holdings where the Courts have given judgment in the favor of HIV positives. They are allowed to use pen names before the Court in order to hide their identity.
The Supreme Court in Mr. X v. Hospital Z, impounded that anyone suffering from this epidemic deserve complete sympathy and respect just as any other human being. The denial of job opportunities to the HIV patients is unjust and unlawful. It was further held that even though it is the right of the patient to keep his status of HIV private, the right to confidentiality can be enforced in the situations where the patient stands the risk of transmitting the disease to his/her spouse.
3. Right against discrimination and Right to employment
The HIV positives, just like any other citizen of India, possess the right against unjust and prejudiced treatment. They cannot be denied employment and cannot be dismissed from their current employment on the ground that they are HIV /AIDS patients.
Apart from the legislation and various Acts mentioned above, there are certain other provisions enshrined in the Indian laws. The constitution of India guarantees the HIV patients with the right of equality in article 14 and right life and liberty in article 21. Some of the notable legislation are: Indian Medical Council Act, 1956, Immoral Trafficking Prevention Act 1986. The National AIDS Control Organization has issued a number of guidelines against the pre evaluation of the employees suspected of HIV.
1. The Government should enact a legislation which specifically prohibits and penalizes those public and private firms or organizations or offices who are observed to be showing discriminatory behavior towards the HIV/AIDS patients. It should impose heavy penalty if any firm is proved of the allegations of having discrimination towards the HIV positives.
2. Campaigns to spread awareness about the rights of HIV positives must be scheduled by the government from time to time. Also various private communities and Non-Governmental Organizations should be encouraged to become a part of the campaign and reach out to the people who are less literate or live in remote areas.
3. A national plan of action is the current need of the status of HIV positives in India. Laws may have been formed, legislation may have been adopted, but still there is a sense of untouchability among the people towards the HIV positives.
People living with HIV /AIDS and people related to them, must understand the link between human rights and HIV/AIDS. Mere acknowledgement of the programs and policies for the prevention and control of HIV/AIDS is not enough. Subsequent carrying out of such a policy is necessary. The discrimination towards the HIV positives itself is the destruction of the basic feature of the Constitution i.e. violation of Article 14 of the Constitution of India. It is time that we stop treating HIV positives as untouchables and start sympathizing towards them. It is the dire need of the society that people’s perception towards the HIV community should be changed.
Policies alone cannot work for their betterment if the society itself is the prey of a feudal mentality.