This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article which deals with HIV/AIDS and human rights in India.
India has the third-largest HIV epidemic in the world and it is one of the biggest challenges faced by the country. Despite HIV prevalence among adults being just 0.2% in 2017, due to the country’s huge population, this estimate equates to about 2.1 million people.
The prevalent conditions of the country are such that there is poor literacy about HIV AIDS and its prevention and treatment, limited access to healthcare, the serious social stigma attached to the virus and discrimination against those infected with HIV AIDS. It is due to these conditions along with the myths associated with the disease that the country has become more vulnerable to the disease.
India, keeping in mind the human rights associated with HIV AIDS, has signed several international conventions that include within their ambit the protection of the human rights linked with HIV AIDS. The government has also brought in several laws to secure human rights and prevent the spread of the disease.
HIV/AIDS and human rights – challenges and prospects
Recognition of the relationship between human rights and HIV/AIDS
HIV AIDS has emerged to become an epidemic and a public health crisis in India. As pointed out by Dr Justice A.S. Anand, HIV AIDS stands out in importance from other diseases due to its unique atmosphere of silence, denial, fear, stigma and discrimination. It thus becomes important to take an approach that promotes and protects human rights and prevents the spread of the epidemic while reducing the economic and social impact.
HIV AIDS and human rights are closely linked together. The protection of such rights is essential not just to ensure the rights of the people infected are not violated but also to prevent the spread of the disease and reduce its social and economic impact on society as a whole.
There are several benefits for taking a human rights approach including, reducing the vulnerability to the HIV infection by providing proper means of prevention to vulnerable groups, reducing the impact of the disease on those infected by ensuring proper treatment to combat the disease, increasing the communities ability to better respond to the pandemic by raising awareness and so on.
This makes protecting, promoting and fulfilling people’s human rights essential to enable an effective response to the disease.
Human rights violation in the context of HIV AIDS
The societal outlook towards the disease has led to several instances where the human rights of the people are violated. Such violations of rights are not restricted to those who are infected by HIV alone. This section will deal with human rights violations under two groups –
- Rights of the people infected with HIV AIDS;
- Rights of several other groups affected by the disease.
Rights of people infected with HIV AIDS
Stigmatization and discrimination
The main reason for the violation of the rights of infected members is the stigmatization of the disease and the discrimination due to this. Such discrimination violates several rights of the members that are to be protected.
Those infected by the disease have a right to non-discrimination and a right to live with dignity. However, in many instances, they experience stigma, exclusion and discrimination due to being associated with being HIV positive. Such treatment creates complex barriers in addition to the burden of the disease.
Apart from being violative of the right to non-discrimination itself, such treatment also violates several other rights such as the right to access to HIV and other medical care services, the right to employment, the right to not be discriminated in the workplace and their right to live a life with dignity.
This is because stigma and discrimination discourage individuals affected by HIV to contact health and social services. In addition to this, discrimination by healthcare workers based on HIV status, non-gender conforming behaviours, sexual orientation or gender identity is very common and deters the members from accessing prevention and treatment services.
Such discrimination also, very often, reaches the workplace where the members might face discriminatory practices such as termination or refusal of employment due to their HIV status. This violates the person’s right to equal treatment in the workspace and some cases, their right to employment. Many infected individuals are also excluded from health insurance schemes that have an impact on their health and their ability to contribute to their work.
It is also required that these individuals disclose they’re being infected, which violates their right to privacy which is a basic human right.
As defined by Avert, HIV criminalization refers to laws that criminalize the people infected by HIV based on their status. Such criminalization can be through specific HIV related laws or general laws.
This is done to deter morally unacceptable behaviour due to the fear of punishment. Such laws include criminalizing sex workers or injection drug users, which are common ways of the spread of the disease. However, such criminalization has led to non-disclosure of the disease due to the fear of prosecution and thus lack of access to proper treatment.
Therefore, the criminalization of HIV has led to an increase in risk-taking behaviour among likely infected members, which increases their vulnerability to the disease.
Rights of other groups affected by the disease
Groups vulnerable to contract HIV
Several groups in society were more vulnerable to contracting the disease than others. These include sex workers, injection drug users, transgender persons and so on.
Despite these members not being affected by the disease, it is known that they are more likely to be infected by it and thus face discrimination and ill-treatment which makes it difficult for them to access services to prevent the disease. The criminalization of such activities also become a reason for not disclosing the need for such prevention due to the fear of prosecution.
It thus becomes difficult for them to discuss issues related to HIV, participate in AIDS service organizations and take other preventive measures to protect themselves from HIV infection which leads to the consequent spread of the disease.
Women, especially younger women, are known to be more vulnerable to infection. This is due to their lack of information and education about healthy sexual relations and access to the services that are required to prevent the infection.
In addition to this, due to the unequal status of women in our society, their say in the context of sexual activities is often undermined. It is also common for several rape victims to contract the infection due to unprotected sexual activity. This leaves women in a more likely position to be infected.
Economic and social status
Like gender, several other factors might affect a person’s access to resources thus increasing their vulnerability to the infection. It is known that poor people and people from several communities find it more difficult to access proper facilities than others. Due to this reason, such members are often unable to access HIV care, prevention and treatment. Thus, this makes them more vulnerable to being infected or adversely affected by the disease.
Such a violation of human rights makes members from certain genders, castes and economic backgrounds more prone to infection. This raises a need for a law that ensures proper treatment to all patients while protecting their rights.
Law review, reform and support service
The laws around HIV AIDS were one of the first disease-centric laws in India. This is due to the serious stigmas and false beliefs associated with the disease which resulted in the discrimination of those infected by it. This made it essential to keep a check on aspects relating to access to health care, education, employment etc. and ensure that the rights of those infected by HIV AIDS are well protected.
HIV/AIDS Bill, 1989
Before there was any legislation protecting the basic rights of HIV infected persons, these rights were mainly guarded under the provisions of the Indian Constitution. Article 14 guaranteed the right to equal treatment of infected persons. Article 15 and 16 protected the members against any discrimination in public facilities and employment. Article 21 protected the individual’s right to life and personal liberty, including the right to dignity and the right to privacy.
However, these provisions were provided to all the citizens of the country and thus were not sufficient to deal with the specific problems of HIV infected persons. This led to the drafting of the first HIV/AIDS Bill in 1989. However, this bill was withdrawn due to discriminatory provisions such as the confinement of members infected and mandatory testing. This raised the need for a new bill that apart from providing aspects for prevention and treatment of the infection also promotes and protects the rights of those infected.
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
Finally, on 11th February 2014, the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome Bill was introduced by Mr Ghulam Nabi Azad, the then Minister for Health and Family Welfare. This bill was passed in 2017 which led to specifically criminalizing any discrimination against those infected by HIV AIDS.
The Act aims at preventing and controlling the spread of HIV AIDS. In addition, the Act also seeks to prohibit any discrimination against infected members and placed an obligation to safeguard their rights.
The Act specifies various grounds on which possible discrimination can occur not only against the members affected by HIV but also against those living with them. These include the denial, termination, discontinuation or unfair treatment regarding employment, education, health care services, residing or renting property, standing for public or private office and provision of insurance. The Act also penalises the propagation of hatred against the protected persons.
In addition, the Act provides for informed consent and confidentiality to be maintained regarding the treatment of the patient. This means that no HIV test or medical treatment can be conducted without the informed consent of the person and no person can be compelled to disclose their HIV status unless compelled by a court order.
The Act also specifies several measures to be taken by the central and state government to prevent the spread of the infection, provide anti-removal therapy to those infected, facilitate access to welfare schemes, formulate education communication programmes to overcome the stigmatization of the disease, lay guidelines for the care and treatment of children infected with HIV AIDS.
Over the years, several NGOs have come up with similar initiatives to assist the central and state governments to implement these measures and achieve the above-stated goals. These organisations have increased the reach of these measures, ensured proper implementation and prevented overreliance on the government in this regard.
The key role of NGOs
NGOs have made a significant contribution to prevent the spread and mitigate the impact of HIV AIDS. Several NGOs are working at different levels. The National Aids Control Organisation focuses on preventing or targeting interventions at high-risk groups and providing care and support to those infected. Several NGOs also undertake general awareness campaigns to educate society about the infection and break the stigma attached to it. These NGOs also promote democratic values and challenge social problems and injustices surrounding HIV AIDS.
NGOs have played a significant role in the society to set trends that led to advocacy for persons living with HIV AIDS, educating specific target groups, improving access to health care and drugs, enabling peer education and rehabilitation of infected members. They are smaller and are more flexible which enables them to implement programmes faster and more efficiently. They are also more likely to attract community participation as they are generally formed by members of the same community.
They are more successful in reaching out to the target groups such as the poor and marginalized who may not wish to be a part of the public institutions. Several NGOs also focus on targeted interventions that provide an integrated approach to prevent HIV among high-risk groups. Thus, the role of NGOs in preventing the spread and mitigating the impact of HIV AIDS is significant and deserves special recognition. It would not have been possible to reach the target members and high-risk groups and educate them about the infection without the assistance of the NGOs.
The challenges around HIV/AIDS are not just restricted to the protection of life, but also extend to legal aspects surrounding the rights of those infected. There exists a serious stigma in Indian society which has caused severe discrimination in the past and arose the need for the protection of human rights of the affected members. In addition to the protection of rights from being violated, there is also a need to keep a check on such discriminatory behaviour to ensure that people, especially high-risk groups, have access to HIV AIDS prevention and treatment services. Thus, this arose the need to bring in legislation governing these aspects and safeguarding the rights of the HIV patients. Adding on to the contribution of the government, several NGOs have significantly assisted in overcoming these challenges in several ways.
- https://prsindia.org/billtrack/the-human-immunodeficiency-virus-and-acquired-immune-deficiency-syndrome-prevention-and-control-bill-2014#:~:text=5-,The%20Human%20Immunodeficiency%20Virus%20and%20Acquired%20Immune%20Deficiency%20Syndrome%20(Prevention,Ghulam%20Nabi%20 Azad.
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