HIV/AIDS is one of the biggest challenges faced by India. There are about
three 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 level is one of the biggest causes of the spread of the disease. The
disease has a very serious social stigma attached with it.
People infected with HIV/AIDS are discriminated at every place and are looked
upon in the society. The major field where they feel the effects of this disease
is at the workplace. The disease not completely curable but measures can be
followed to prevent it. 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.
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 defense system of the
human body is weakened and gives rise to a variety 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, by use of
non-sterile, HIV infected or contaminated syringes and needles and from an
infected mother to her unborn child.
Legal Provisions 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 nondiscrimination 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
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.
Legal Provisions In Indian Laws
With a view to safeguard the rights of patients suffering from 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
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 1 lakh or both.
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
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
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 centres.
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
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
National Policy on HIV/AIDS and the World of Work Policy
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.
The policy says that HIV/AIDS screening should not be required of job applicants
or persons in employment or for purposes of exclusion from employment or worker
benefits. In order to assess the impact of HIV, employers may wish to do
anonymous, unlinked HIV prevalence studies in their workplace. These studies may
occur provided it is undertaken in accordance with the ethical principles of
scientific research, professional ethics and the protection of individual and
Where such research is done, workers should be consulted and informed that it is
occurring. Testing will not be considered anonymous if there is a reasonable
possibility that a person HIV status can be deduced from the result. It also
provides that HIV infection is not a cause for termination of employment.
Persons with HIV related illnesses should be able to work for as long as
medically fit in appropriate conditions.
The other legislation, polices and agencies which provide protection to the
HIV/AIDS patients are:
Antiviral Therapy Guidelines for HIV infected Adults and Adolescents
- Daman, Diu Public Health Act, 1985 Goa, Amended in 1986
- Indian Penal Code, 1860
- Drugs and Cosmetic Act, 1940
- Juvenile Justice (Care and Protection of Children) Act, 2000 and 2006.
- Maharashtra Protection of Commercial Sex Workers, Bill, 1994.
- Medical Termination of Pregnancy Act, 1971
- Narcotic Drugs and Psychotropic Substances Act, 1985
- National AIDS Control Organization (NACO), Department of AIDS Control,
Policies and Guidelines.
Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006
- Condom Promotion by SACS - Operational Guidelines
- Data Sharing Guidelines
Infections Guidelines for Setting up Blood Storage Centres
- Guidelines for HIV Testing, March 2007
- Guidelines for Network of Indian Institutions for HIV/AIDS Research (NIHAR)
- Guidelines for Prevention and Management of Common Opportunistic
National Policy on HIV/AIDS and the World of Work
- Link Worker Scheme(LWS) Operational Guidelines
- NACO Ethical Guidelines for Operational Research
- NACO IEC Operational Guidelines
- NACO Research Fellowship-Scheme Under NACP-III
- National Guidelines on Prevention, Management & Control of Reproductive
- National Guidelines on Prevention, Management & Control of RTI including
Targeted Interventions for High Risk Groups (HRGs)
- Procurement Manual for National AIDS Control Programme (NACP-III)Standards
for Blood Banks and Blood Transfusion Services
- Surveillance Operational Guidelines
- Targeted Intervention for Migrants as Operational Guidelines
- Targeted Interventions for Truckers, Operational Guidelines
- Voluntary Blood Donation, An Operational Guidelines
- National AIDS Control and Prevention Policy (NACPC)
- National Blood Policy (NIHFW)
- National AIDS Control Programme (NIHFW)
- National AIDS Prevention and Control Policy
- Suppression of Immoral Traffic in Women and Girls Act, 1956
- Young Persons (Harmful Publications) Act, 1956
- National AIDS Prevention and Control Policy
- The Indian Employers' Statement of Commitment on HIV/AIDS
- Joint Statement of Commitment on HIV/AIDS of the Central Trade Unions in
- ILO Code of Practice on HIV/AIDS and the World of Work
- State AIDS Control Societies
- National Human Rights Commission
Rights Of Hiv/Aids Patient
Right To Treatment:
A person suffering from any ailment 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
In the matter of LX v. Union of India, LX, an under trial who was tested HIV+
was denied antiviral therapy (ART) against AIDS after his release form the
prison. In a petition filed by him, the Delhi High Court directed the Government
to continue to provide ART to LX. Pursuant to the commencement of the ARV
roll-out by the Government of India in April 2004, the High Court directed the
government provide ART to LX under the ARV roll-out programme and to reimburse
AIIMS for the costs incurred by them.
In another matter a pregnant lady infected with HIV+ was denied treatment by the
hospital. In a petition filed by her husband, the Delhi High Court gave
immediate directions to the Hospital saying that there was an urgent need to
issue direction to ensure the protection of the right to health and life of the
women and her foetus. A direction was issued to immediately arrange one unit of
blood and further quantity of blood as may be required, from any of the
authorized blood banks.
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
favour that if they do not want to disclose their identity they can use a
pseudonym before the Courts to suppress their identity.
In the matter of Mr. X v. Hospital Z, the Supreme Court of India has held that
the patients suffering from 'AIDS' deserve full sympathy and are entitled to all
respect as human beings. They cannot be denied jobs on the basis of their
HIV/AIDS status. It further held that although the doctor-patient
confidentiality is an important and part of the medical ethics incorporated by
the then Medical Council Act, a patient's right to confidentiality was not
enforceable in a situation where the patient is HIV positive, if he stood the
risk of spreading it to his prospective spouse. Since acts likely to spread
communicable diseases are a crime, the failure of the hospital to inform the
spouse of the disease would make them participant criminals. Since Indian
matrimonial laws provide venereal disease as a ground for divorce, a person
suffering from a VD had no right to get married till he/s/he is fully cured and
such a right must be treated as a 'suspended right'.
In another case of Mr. X v Hospital Z, the Supreme Court has held that its
earlier judgment in Mr. X v Hospital Z to the extent that it suspended the right
of people living with HIV/AIDS to marry is no longer good law and restored the
right of an HIV + person to marry. However, it further held that this does not
take away from the duty of those who know their HIV+ status to obtain informed
consent from their prospective spouse prior to marriage.
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.
In a landmark judgment in the matter of MX v. ZY, the Bombay High Court has
held that no person could be deprived of his or her livelihood except by
procedure established by law and that the procedure must be just, fair and
reasonable. It further held that held that if a person is fit to perform his job
functions and is otherwise qualified and does not pose a substantial risk to
fellow workers he cannot be denied the job.
Further, the Court held that a
public sector employer cannot deny a person employment solely because he is HIV
positive. Each determination of whether a person is incapable of performing the
job must be made by conducting an individual inquiry taking into account the
state of medical knowledge at the time.
It was also held that in proper cases
where a person can show that he or she would not be able to prosecute his or her
career if his status is disclosed and in the interests of the administration of
justice, the Court will permit the party before it to suppress his or her
identity and prosecute or defend the proceedings under an assumed name.
In another case of G v. New India Assurance Co. Ltd
, the Bombay High Court has
held that a person, who is otherwise fit, could not be denied employment only on
the ground that he or she is HIV positive. The Court further held that a person
HIV status cannot be a ground for rejection for employment as it would be
discriminatory and would violate of the principles laid down in Articles 14
(right to equality), 16 (right to non-discrimination in state employment) and 21
(right to life) of the Constitution.
In the case of S v. Director General of Police
, where the widow was denied
compassionate employment because her husband had died because of AIDS, the
Bombay High Court has held that there should be no delay in appointment in all
claims of compassionate employment. If there does not exist a suitable post, a
supernumerary post must be created. The court directed the respondents to create
a supernumerary post for the petitioner within 8 weeks, and consider her case
for grant of service quarters on priority basis in accordance with the rules.
In the matter of Mr. X, Indian Inhabitant Vs. Chairman, State Level Police
Recruitment Board and Ors.
, the Andhra Pradesh High Court has held that
treating all HIV positive persons as one single homogenous class, irrespective
of the stage of the disease, for being denied appointment in the police force is
in violation of Articles 14 and 16 of the Constitution of India.
Some people found to be HIV positive may, under certain circumstances, be
unsuitable for employment in the police force does not justify the exclusion
from employment of all people who are living with HIV. A Rule which denies
employment to the HIV infected person merely on the ground of his HIV status
irrespective of his ability to perform the job requirements and irrespective of
the fact that he does not pose any threat to others at the workplace is clearly
arbitrary and unreasonable and infringes the whole some requirement of Article
14 as well as Article 21 of the Constitution of India.
The Supreme Court of India has also advocated in the favour 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.
Negligence In Blood Transfusion
In the case of P v. Union of India, the blood of a HIV patient was negligently
donated to a pregnant lady who was later found to be infected with HIV+. In this
case the Indian Navy being at fault compensated the victim with a Government job
at Kolkata or the place where she desired, accommodation on her appointment on
the usual terms and conditions, a sum of Rs. 10 lakhs from the date of filing of
the writ petition @ 18% interest and medical treatment at the cost of the
Naco Guidelines Against Prescreening Tests Conducted On Prospective Employees: 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.
Remedy In Cases Of Discrimination Or Denial Of Facilities
In case a person infected with HIV/AIDS is denied treatment or any other
facility to which a common man is entitled or is discriminated in any field on
the basis of his/her HIV/AIDS status, the aggrieved person can file a petition
before the Court for his/her readdress.