Discrimination against AIDS Patients: Laws for Protection in India
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).
HIV is transmitted primarily through sexual intercourse may be 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 CONSTITUITON OF INDIA:
- The law of land, the Constitution of India, 1950 guarantees every justice, liberty and equality.
- Article 14
- Articles 15 and 16
- Article 21
- Article 39.
- Article 42
- Article 47
- LEGAL PROVISIONS IN INDIAN MEDICAL COUNCIL ACT, 1956 (Professional Conduct, & Ethics) Regulations, 2002)
It lays down certain duties towards the HIV/AIDS patients that have to be observed by the doctors towards the HIV/AIDS patients. They are:
- Duty to take care and to take informed consent from the patient.
- Disclosure of information & risks to the patient
- The physician should not abandon his duty for fear of contracting the disease himself.
- Provide information of options available & benefits
- Duty to warn
- To admit patient in emergency without consent
III. 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.
- HIV/AIDS Bill, 2007
- HIV/AIDS Bill is a joint initiative of the civil society and government itself.
- It prohibits discrimination of HIV/AIDS patients:
- in public as well in private spheres.
- in matters of
- residence and
- property, etc,
- HUMAN IMMUNODEFICIENCY VIRUS AND ACQUIRED IMMUNE DEFICIENCY SYNDROME (PREVENTION AND CONTROL) BILL, 2010
- It contains stringent provisions to check discrimination against HIV/AIDS patients.
- The Act punishes the act of discriminating against on grounds of HIV/AIDS.
- Also, testing cannot be a re-requisite for employment or for access to healthcare, education or public places.
- Also include any information that propagate hatred against the infected people.
- They can move courts against discrimination.
- National Policy on HIV/AIDS and the World of Work” Policy
- It aimed at generating awareness about the disease and to encourage action to prevent its spread and improve and develop the support and care initiatives at the workplace.
VII. Recent Measures:
Pranab Mukherjee, the President of India, on April 24, 2017, approved new legislation that was formally introduced in 2014 as the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill (the Bill) by Ghulam Nabi Azad, then Minister of Health and Family Welfare and bans discrimination against people who are HIV-positive or who have AIDS.
The Bill has provisions prohibiting specific acts of discrimination in education, housing, and employment; articles specifying that HIV testing, treatment, and status disclosure require informed consent; clauses establishing safe working environments; and measures on the creation of mechanisms to redress grievances and investigate complaints.
- The legislation also contains a prohibition of mistreatment of whistleblowers in cases related to the issue of treatment of those with HIV or AIDS.
- The Bill provides that each state must appoint an ombudsman who is empowered to hear complaints related to the provisions of the Bill and to issue relevant orders.
- Disclosing the HIV status of a protected person is also subject to a 100,000 rupee fine.
- The penalty for refusing to comply with an order of an ombudsman within the designated time limit is a fine of up to 10,000 rupees; if the failure to comply is ongoing, there may be an additional fine of half that amount each day the noncompliance continues.
- The penalties established in the Bill include imprisonment for from 3 months to 2 years and/or a fine of up to 100,000 rupees for persons convicted of:
- publicly advocating hatred,
- violence against protected persons or
- discrimination, or
- Propagating feelings likely to expose them to hatred, discrimination, or violence.
RIGHTS OF HIV/AIDS PATIENT
RIGHT TO TREATMENT
A person suffering has the right to get treatment for his suffering which cannot be denied to a patient on the basis of his HIV/AIDS status.
In the matter of LX v. Union of India, LX, an under trial who was tested HIV+ was denied antiviral therapy against AIDS/HIV after his release form the prison, the Delhi High Court directed the Government to continue to provide ART to LX.
An infected person who has HIV/AIDS has the right to keep his/her status confidential, even the Courts have delivered judgments in their favour that if they do not want to disclose their identity.
RIGHT TO EMPLOYMENT AND RIGHT AGAINT DISCRIMINATION AT WORKPLACE
No one can be discriminated on the basis of his HIV/AIDS status in India. Right against discrimination is a fundamental right possessed by a citizen of India. HIV/AIDS patients have a right of equal treatment and shall not be denied job opportunity or discriminated in employment matters on the ground of their disease.
In G v. New India Assurance Co. Ltd, the Bombay High Court held that a person, who is otherwise fit, could not be denied employment only on the ground that of being HIV positive which is discriminatory and violative of the principles laid down in Articles 14, 16 and 21 of the Constitution.
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+ where Indian Navy being at fault compensated the victim with a Govt. 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 Government.
NACO GUIDELINES AGAINST PRESCREENING TESTS CONDUCTED ON PROSPECTIVE EMPLOYEES: RIGHT TO INFORMED CONSENT
National AIDS Control Organization has issued a comprehensive HIV testing policy which provided that compulsory HIV testing should not be imposed as a precondition for employment or for providing healthcare services in private firms with informed consent and pre and post-test counseling and be voluntary.
REMEDY IN CASES OF DISCRIMINATION OR DENIAL OF FACILITIES
An infected person cannot discriminated in any field on the basis of his/her HIV/AIDS status, and is entitled th file a petition before the Court for his/her readdress and cannot be denied treatment or any other facility to which a common man.