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Right Of HIV/AIDs Affected Person Under The Indian Legal System

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 countries.[1]

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:

[2]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 areas.

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. [citation needed] 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:

Increased vulnerability:
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 are available.

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:

[1]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 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 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 centres.

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 sensitive groups.

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 discrimination.

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.

End-Notes:
  1. 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.
  2. Available At: https://www.avert.org/human-rights-and-hiv
  3. 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

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