HIV Patient’s Right to Treatment in India

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HIV infection is a social problem, eradication of it by law only is impossible. One truth is that social commitment cannot be enforced through legal provisions.

About three million people in India are suffering from HIV/AIDS, third highest in world. The socioeconomic condition of the country, traditional outlook and the myths associated coupled with Poor literacy level has contributed to the spread and vulnerability to the disease.  Since the antiretroviral programme was launched in 2004, the National Aids Control Programme has assured free treatment for all HIV positive patients[1], at least in papers.

Source: Hindustan Times

Right to treatment without discrimination

Obligation on state to improve public health is cast by Part IV of Constitution vide Articles 38, 39(e) & (f), 42, 47, 48A. Duty is upon the state for raising the standard of living[2] and improvement of the public health.[3] Constitution envisages the establishment of welfare state where the primary duty of Government is to secure the welfare of people by providing adequate medical facilities to them, which is done by running hospitals and health care, providing medical care to the people seeking to avail those facilities. Failure to provide timely medical treatment to a person in need of such treatment violates Right to life guaranteed under Article 21 of the Constitution.[4]

The Constitution of India, 1950 under Article 14 guarantees the right of equality of treatment to the HIV/AIDS patients. Articles 15 and 16 protect them against discrimination. Article 39 cast a duty upon the States to ensure right to livelihood to all the citizens including the HIV/AIDS patients and prevent discrimination.

Various treaties, agreements and declarations related to HIV/AIDS aimed at protection of rights of HIV patients, HIV/AIDS affected people and those vulnerable to it have been signed by Union of India, to secure human rights and prevent the spread of HIV/AIDS. The two conventions that aim at non discrimination are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights. Non discrimination of the people infected with HIV is covered under the ambit of these covenants.

The principle of non-discrimination is also laid down in Universal Declaration of Human Rights which considers it fundamental to human rights law, equally applicable to people suffering from HIV/AIDS. Art. 25(1) of the Declaration[5] gives right to the HIV infected people 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 treatment choices.

The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage in law reform, guides the states to identify legal obstacles in forming an effective strategy of HIV/AIDS prevention and care, stress on enactment of anti-discrimination and protective laws to protect HIV/AIDS diagnosed people from discrimination in both the public and private sectors in order to ensure their privacy, confidentiality and ethics and emphasises on education and conciliation and provide for speedy and effective administrative and civil remedies.[6]

Legal provisions in India:

The new legislation The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017[7] bans discrimination against HIV positive people. The Bill was introduced in 2014 by then Minister of Health and family welfare Ghulam Nabi Azad, whose explanatory statement provided the purpose of the legislation as- “To address the issue of stigma faced by those infected by HIV and AIDS….. to strengthen the existing National AIDS Control Programme by bringing Legal accountability”. Objective clause also stated for the recognition of the need to safeguard the rights of the people infected with HIV/AIDS, particularly women and children by the existing establishments, both public and private.[8]

Section 4 of the Act prohibits advocating or communication of the feelings of hatred against any protected person[9], contravention is punishable under section 37 which provide for punishment with imprisonment for not less than three months which may extend to two years and with fine which may extend to one lakh rupees, or with both.

Indian Medical Council Act, 1956 (Professional Conduct, & Ethics Regulations, 2002):

On refusal of treatment at the government health facility, HIV positive patient can move to court but same remedy was not available in case of private hospitals, till the HIV law came into existence. This new legislation covers private health facilities under its ambit.[10]

Conclusion:

This disease is not completely curable but prevention measures can be followed. Awareness and knowledge amongst the people with regard to the disease, its causes, its effects can help in reducing it from further spreading.

HIV patients can be served better by intensifying the efforts on ground level by facilitating medical help, treatment, awareness for prevention and controlling the spread.

Author: Namrta

You can reach author at: namrta.9809@gmail.com

Namrta graduated from National Law Institute University, Bhopal. Currently, she is pursuing LLM from the same university. She works as a content writer for TA.

Endnotes:

[1]https://scroll.in/pulse/822931/indias-new-aids-bill-has-a-worrying-clause-that-could-weaken-free-treatment-for-all-hiv-patients

[2]Article 25(1) of the Universal Declaration of Human Rights guarantees the right to a standard of living adequate for health and well­being.

[3] Consumer Education Research Centre v Union of India AIR 1995 SC. 922.Para 20 at Page 938.

[4] Paschal Banga Kheta Mazdoor Samity v. State of West Bengal AIR 1996 SC 2426

[5] http://www.un.org/en/universal-declaration-human-rights/

[6] http://www.helplinelaw.com/civil­litigation­and­others/RHPI/rights­of­hivaids­patients­in­india.html

[7] https://nhp.gov.in/nhpfiles/hivaidsact.pdf

[8]http://www.prsindia.org/billtrack/the-humanimmunodeficiency-virus-and-acquired-immune-deficiency-syndrome-prevention-and-control-bill-2014-3126/

[9] Section 2(s) of the HIV/AIDS prevention Act, 2017

[10]http://www.hindustantimes.com/health/denied­rights­and­treatment­hiv­and­aids­patients­still­fighting­stigma/story­9zvJ1YFVIrhMga4JjKJcWO.html