Acknowledging The Meaning Of The Term Hiv/Aids And The Right Which Are Conferred To The Person Affected From This Vurneable Disease:
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
fuels the spread and exacerbates the impact of the disease, while at the same
time HIV undermines progress in the realisation of human rights.
This link is
apparent in the disproportionate incidence and spread of the disease among
certain groups which, depending on the nature of the epidemic and the prevailing
social, legal and economic conditions, include women and children, and
particularly those living in poverty. It is also apparent in the fact that the
overwhelming burden of the epidemic today is borne by developing countries,
where the disease threatens to reverse vital achievements in human development.
AIDS and poverty are now mutually reinforcing negative forces in many developing
It is now widely recognised that HIV and human rights are inextricably
linked. Human rights abuses are one of the drivers of the HIV epidemic and
increase its impact. At the same time, HIV undermines progress in the
realisation of human rights.
Under international human rights laws and treaties, and international
obligations such as the Universal Declaration of Human Rights and the 2030
Agenda for Sustainable Development, every person has a right to health and to
access HIV, and other healthcare services. People also have a right to equal
treatment before the law and a right to dignity.
However, many people continue to face human rights-related barriers to essential
and often lifesaving health services. These barriers arise from discriminatory
laws and practices connected to people’s health status, gender identity, sexual
orientation and conduct The people facing these barriers are often the most
marginalised and stigmatised in society, and the most vulnerable to HIV. This
makes protecting, promoting, respecting and fulfilling people’s human rights
essential to ensure they can access the health services they need, enabling an
effective response to HIV and AIDS.
AIDS is a devastating and deadly disease that affects people worldwide and, like
all infections, it comes without warning. Specifically, childbearing women with
AIDS face constant psychological difficulties during their gestation period,
even though the pregnancy itself may be normal and healthy.
These women have to
deal with the uncertainties and the stress that usually accompany a pregnancy,
and they have to live with the reality of having a life-threatening disease; in
addition to that, they also have to deal with discriminating and stigmatizing behaviours from their environment. It is well known that a balanced mental state
is a major determining factor to having a normal pregnancy and constitutes the
starting point for having a good quality of life.
Even though the progress in
both technology and medicine is rapid, infected pregnant women seem to be
missing this basic requirement. Communities seem unprepared and uneducated to
smoothly integrate these people in their societies, letting the ignorance
marginalize and isolate these patients.
Historical Background Of The Disease Hiv/Aids:
In 1986, the first known cases of HIV in India were diagnosed by Dr. Suniti
Solomon and her student Dr. Sellappan Nirmala amongst six female sex workers in
Chennai, Tamil Nadu. In the same year, the Government of India established the
National AIDS Committee within the Ministry of Health and Family Welfare.
In 1992, on the basis of National AIDS Committee, the government set up the
National AIDS Control Organisation (NACO) to oversee policies and prevention and
control programmes relating to HIV and AIDS and the National AIDS Control
Programme (NACP) for HIV prevention. Subsequently, the State AIDS Control
Societies (SACS) were set up in states and union territories. SACS implement the
NACO programme at a state level, but have functional independence to upscale and
innovate. The first phase was implemented from 1992 to 1999 and focused on
monitoring HIV infection rates among high-risk populations in selected urban
In 1999, the second phase of the National AIDS Control Programme (NACP II) was
introduced to decrease the reach of HIV by promoting behaviour change. The
prevention of mother-to-child transmission programme (PMTCT) and the provision
of antiretroviral treatment were developed.  A National Council
on AIDS was formed during this phase, consisting of 31 ministries and chaired by
the Prime Minister. The second phase ran between 1999 and 2006.
A 2006 study published in the British medical journal The Lancet reported an
approximately 30% decline in HIV infections from 2000 to 2004 among women aged
15 to 24 attending prenatal clinics in selected southern states of India, where
the epidemic is thought to be concentrated. Recent studies suggest that many
married women in India, despite practicing monogamy and having no risk
behaviours, acquire HIV from their husbands and HIV testing of married males can
be an effective HIV prevention strategy for the general population.
In 2007, the third phase of the National AIDS Control Programme (NACP III)
targeted high-risk groups and conducted outreach programmes. It also
decentralised the effort to local levels and non-governmental organisations
(NGOs) to provide welfare services to the affected. The US$2.5 billion plan
received support from UNAIDS. The third stage dramatically increased targeted
interventions, aiming to halt and reverse the epidemic by integrating programmes
for prevention, care, support and treatment. By the end of 2008, targeted
interventions covered almost 932,000 of those most at risk, or 52% of the target
groups (49% of female sex workers, 65% of injection drug users and 66% of men
who have sex with men).
Some efforts have been made to tailor educational literature to those with low
literacy levels, mainly through readily accessible local libraries. Increased
awareness regarding the disease and citizen's related rights is in line with the
Universal Declaration on Human Rights.
In 2009, India established a National HIV and AIDS Policy and the World of Work,
which sought to end discrimination against workers on the basis of their real or
perceived HIV status. Under this policy, all enterprises are encouraged to
establish workplace policies and programmes based on the principles of
non-discrimination, gender equity, healthy work environment, non-screening for
the purpose of employment, confidentiality, prevention and care and support.
Researchers at the Overseas Development Institute have called for greater
attention to migrant workers, whose concerns about their immigration status may
leave them particularly vulnerable.
The Relationship Between Hiv/Aids And Human Rights Is Highlighted In Three Areas:
Certain groups are more vulnerable to contracting the
HIV virus because they are unable to realize their civil, political, economic,
social and cultural rights. For example, individuals who are denied the right to
freedom of association and access to information may be precluded from
discussing issues related to HIV, participating in AIDS service organizations
and self-help groups, and taking other preventive measures to protect themselves
from HIV infection.
Women, and particularly young women, are more vulnerable to
infection if they lack of access to information, education and services
necessary to ensure sexual and reproductive health and prevention of infection.
The unequal status of women in the community also means that their capacity to
negotiate in the context of sexual activity is severely undermined. People
living in poverty often are unable to access HIV care and treatment, including antiretrovirals and other medications for opportunistic infections.
Discrimination and stigma:
The rights of people living with HIV often are
violated because of their presumed or known HIV status, causing them to suffer
both the burden of the disease and the consequential loss of other rights. Stigmatisation and discrimination may obstruct their access to treatment and may
affect their employment, housing and other rights. This, in turn, contributes to
the vulnerability of others to infection, since HIV-related stigma and
discrimination discourages individuals infected with and affected by HIV from
contacting health and social services. The result is that those most needing
information, education and counselling will not benefit even where such services
Impedes an effective response:
Strategies to address the epidemic are hampered
in an environment where human rights are not respected. For example,
discrimination against and stigmatization of vulnerable groups such as injecting
drug users, sex workers, and men who have sex with men drives these communities
underground. This inhibits the ability to reach these populations with
prevention efforts, and thus increases their vulnerability to HIV. Likewise, the
failure to provide access to education and information about HIV, or treatment,
and care and support services further fuels the AIDS epidemic. These elements
are essential components of an effective response to AIDS, which is hampered if
these rights are not respected.
Legislative Framework: Legal Provisions In Indian Law For The Rights Of The Persons Affected By 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 Rs 1 lakh or both.
Role Of Judiciary:
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
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
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
readdresses 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 counselling and treatment
of sexual assault survivors and directs the setting up of sexual assault crisis
Conclusion And Suggestion
As it was previously discussed, stigma devalues and diminishes the dignity of
people who are subjected to it. Although HIV-AIDS has only been around for 40
years, its stigma is prominent and needs to be addressed and corrected, since
the inevitable social consequences of being stigmatized lead to severely reduced
opportunities, discrimination, and even rejection. One of the tragic
consequences of discrimination is that it has a deep impact on vulnerable and
Discrimination against women in male-dominated societies can fundamentally
threaten their social, economic, and family positions. Unfortunately, not too
much progress has been made in annihilating the stigma throughout the years.
Some years into the epidemic with no effective vaccine or permanent HIV cure, no
solution has been given to the affected pregnant women that end up isolated.
Discrimination and rejection guide people’s lives, associating this stigma with
prolonged and severe psychological trauma. Stigma and discrimination are strong
parameters in creating a hidden society that is extremely difficult to reach and
reveal a society governed by its own unique rules.
Although striking differences in culture, mentality, social perspectives,
language, and history of human rights exist within the societies, a total front
should be created against the AIDS pandemic. Governments should review existing
laws and enforce new ones that will repeal these legal frames that support
The value of personal autonomy is deeply ingrained in our civilization; it is
the intrinsic moral right of a person to follow their own plan, thoughts, and
goals in life. The fight against HIV-AIDS should, therefore, aim towards women’s
empowerment and decisive moves for solutions by society. Society should dare to
attempt a shift in strategy with or without support from the governments. Only
then, the stigma will be eliminated. HIV-positive women must be embraced as
respected and indispensable members of our society.
- Available At: https://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html#:~:text=It%20lays%20down%20certain%20work,right%20to%20work%20and%20participate.
- Available At: https://www.avert.org/human-rights-and-hiv
- Available At Fiona Samuels and Sanju Wagle 2011, Population mobility and HIV
and AIDs: review of laws, policies and treaties between Bangladesh, Nepal and
India. London: Overseas Development Institute