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March 04, 2013

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LAW AND HIV- with special emphasis on stigma and discrimination


- Ananya Kapoor, [ ]

HIV

A person suffering from AIDS cannot be condemned by denying him ways of or affording him opportunity to lead a normal life. Unfortunately, in India this is not the current practice. Stigma is attached to the word ‘HIV’ and persons with HIV are neglected, abused, ignored and often harassed and insulted. This has drastic impact on their health, mentally and physically. They are denied admissions, employment, right to medical treatment, right to inheritance, custody of a child and various more.

Through this research paper, the author proposes to discuss the several domains where people with HIV face Stigma and Discrimination.

Right To Health


However, through judicial activism and extensive interpretation of the various Fundamentals Rights, the Apex Court has commented and highlighted the significance of implementation of various directive principles. Three important cases of the Supreme Court in this context are-

  1. Public Health is State's Priority and obligation of the State: In Municipal Council, Ratlam vs. Vardhichand & Ors the Supreme Court through Justice Krishna Iyer observed: "The State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties."
  2. Right to Health is a Fundamental Right: In 1991, in CESC Ltd. vs. Subash Chandra Bose, the Supreme Court relied on international instruments and concluded that Right to health is a fundamental right. Article 21 (Right to Life with Dignity) forms the basis of Right to Health. Article 21 reads: "No person shall be deprived of his life or personal liberty except through procedure established by law."

    Unfortunately, persons with HIV are not being provided adequate medical treatment. Researches have shown that a large section of HIV positive persons belong to the low strata of the society and cannot afford the medical costs that include cost of drugs, injections, mandatory testing etc. In such cases, it is the duty of the State to provide assistance that the Indian Government has failed to do.

    Also, when they visit hospitals the doctors or nurses refuse to touch them or do their check-ups. Their HIV status is not kept confidential and is rather made known to several persons, whereby causing them mental trauma and harassment. As a result of which these people with HIV do not wish to go to Hospitals for treatment, which has adverse effect on their health.

    In LX v Union of India & Ors,WP the High Court of Delhi upheld an HIV-positive person's fundamental right to access treatment and medicines. This is a significant decision, given the number of people in India estimated to be infected with HIV/AIDS. However, this is just a Delhi High Court judgment and thus is not binding in other States.
  3. Migrant Workers


    "We can work. We pose no risk to our co-workers. If you take away our jobs, you will kill us faster than the HIV virus." People living with HIV/AIDS need to be kept in employment for as long as they can work, and there are practical and proven steps to make this happen"

    In an International Labor Organization(ILO) study conducted in four Indian states, undertaken by the Networks of People Living With HIV/AIDS (PLWHA), about 70% respondents had faced discrimination at work. Maximum prejudice was reported from within the family (33.33%), followed by health care settings (32.5%). Nearly 18.3% people faced prejudice from neighbors and 9% from community, educational institutes or relatives. Discrimination at the workplace could be higher than the reported 6.1% considering that many PLWHA do not disclose their status fearing losing the job. Positive people are compelled to leave their job on account of harassment such as denial of promotion, being forced to take voluntary retirement or being ostracized by co-workers.

    Prisoners


    The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners rights to maintain human dignity.

    It has been very vigilant against violations of the human rights of the prisoners. The Apex Court has upheld 'Right to health' for the prisoners. The Court stated that-

    "No prisoner can be personally subjected to deprivation not necessitated by the fact of incarceration and the sentence of the court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to comforts like protection from extreme cold and heat, to freedom from indignities such as compulsory nudity, forced sodomy and other such unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques. A corollary of this ruling is the Right to Basic Minimum Needs necessary for the healthy maintenance of the body and development of the human mind. This umbrella of rights would include: Right to proper Accommodation, Hygienic living conditions, Wholesome diet, Clothing, Bedding, timely Medical Services, Rehabilitative and Treatment programmes."

    India is also under an international obligation to provide adequate health facilities to the prisoners. However, we are present are far from reality as it is a well known fact that prisons in India are not equipped with such facilities. Basic amenities are not provided, such as food, clothing etc, let alone providing HIV treatment facilities. The problem is that due to sexual activities in prison, HIV spreads amongst prisoners. The Authorities take no measures in this regard. Even enough financial aid is not provided by the Government to meet such expenses.

    Right To Privacy


    A Full Bench of the Andhra Pradesh High Court in the judgment reported in M. Vijaya v. Chairman and Managing Director Singareni Collieries Company Ltd. has had occasion to consider the question in the context of whether compelling a person to take the HIV test amounts to denying the right to privacy? The court held as follows:

    "52. There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and thepower and duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion will not be in breach of Article 21 of the Constitution."

    Thus, it can be seen that for the interest of larger section of society, the privacy of one person can be harmed. However, the State has not provided for measures to deal with the consequences of such infringement. There should be some protective measures for the person whose right has been violated.

    Women


    Women are vulnerable to HIV infection and their biological susceptibility - at least two to four times greater than men's - is compounded by social, cultural, economic and legal discrimination or inequities. AIDS affects the poorest, the most vulnerable, the most uneducated. And women often constitute the poorest of the poor, the most vulnerable due to their low status and more likely to be illiterate than men. Women depend on their partners for protection - the onus of correct and consistent use of condoms rests with the male partner.

    In a marriage, a woman can risk accusations of infidelity or even violence if she insists on using condoms. In many parts of the world, young disadvantaged women are being infected with HIV at rates higher than their male counter parts. Heterosexual contact is the main risk factor for HIV among women worldwide and most frequently occurs with repeated sexual contact with an HIV-infected person or people. Many young women are coerced into sex or raped, which itself is a risk factor for HIV. Conflicts, trafficking and prostitution also increase female vulnerability.

    While these inequalities do not take place in isolation, they often overlap and intersect. Reducing the vulnerability of women to HIV/AIDS requires an integrated and holistic approach to prevention and care that reduces gender based inequalities, and promotes effective prevention behaviour while addressing the question of human rights.

    Isolation


    Lucy D' Souza vs. State of Goa is the first litigation on the issue of HIV/AIDS in India. S. 53(1) (vii) of the Goa Public Health Act, 1987, empowered the government to isolate a person suffering with AIDS. The Act did not specify a particular period of isolation or where it should take place, but that isolation was acceptable for such person, and at such institution or ward as may be prescribed. Thus, wide powers were given to the government to take away the liberty of the individual on grounds that a person was suffering from AIDS. The Court held, isolation was an invasion of the personal liberty of a person and it may also lead to ostracization. The Court also held that a balance has to be drawn between the right of the individual and society at large. In a situation of conflict between the right of a private individual and the society at large the latter should prevail over the former.

    Employment


    In MX of Bombay Indian Inhabitant vs. M/s. ZY the issues raised concerned not only the right to employment of an HIV affected person but also the safety of other employees and the responsibility of the employer to provide medical treatment to its employees who are suffering from HIV. The High Court held that an HIV affected person could not be denied employment or be discontinued unless it was medically shown that he was suffering from such a disease that can be transmitted through daily chores. The interest of the HIV affected persons, employers and society would have to be balanced in such a case. The Court held that merely because a person suffers from HIV, cannot be a ground to terminate him, unless shown that it has incapacitated him to continue working and he poses a threat to the health of other employees. The Andhra Pradesh High Court in Mr.X, Indian Inhabitant vs. Chairman, State level Police Recruitment Board and Orsobserved that the clause in the revised Andhra Pradesh Police Manual that person suffering with HIV cannot be taken into any government service was unconstitutional.

    Confidentiality And Right To Marry


    In Mr. X vs. Hospital Z brought the issue of privacy before the courts. The petition dealt with two issues; firstly, right to privacy of a patient, specially an HIV/AIDS patient and secondly, the right of an individual to be safeguarded from any threat to her health.

    The Petitioner was tested positive for HIV by the Respondent hospital, which acted upon the discovery and informed Petitioner’s fiancée about this condition because of which the marriage was called off and his community ostracized him. Thus, this petition was filed claiming that there was a breach of privacy and confidentiality by the hospital and the doctor.

    The Supreme Court observed that the relationship between doctor and patient was that of trust. No information acquired during course of treatment should be divulged without the prior permission of the patient. In case of HIV/AIDS patients, confidentiality is paramount because of repercussions of disclosure. Nevertheless, an HIV infected person has a right to lead a normal life but not at the cost of others. In the instant case the right of health of Petitioner’s fiancée was pitched against his right to privacy. Supreme Court held that when two rights collide the one that promotes morality and public interest should be upheld.

    Conclusion


    The author would like to conclude by saying that even though a lot has been done by the Central Government and the Judiciary to protect the rights of persons with HIV and ensure that they do not face discrimination in any field, in reality, we know, and I am sure, all readers will agree with me on this, that in our society, there still is a stigma which will not be eradicated overnight. Unless, the mindsets and the purview of the people in India, does not change, the plight and deplorable state of the persons with HIV will not change and they will continue being neglected, marginalized and vulnerable.

    Contributed by – Ananya Kapoor

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