J. Neha
Symbiosis Law School, Hyderabad
What is AIDS?
Acquired Immune Deficiency Syndrome (AIDS) is a disease which is the result of the last stage of HIV (Human Immunodeficiency Virus) as the name suggests, severely affects the immune system in human beings thus weakening the body’s ability to fight external infections and diseases thus further weakening it. It spreads through physical contact such as breastfeeding and more often through sexual contact. AIDS is a disease to the defence mechanism of the body thus making the body an easy prey for several other diseases and infections. HIV is a fast-evolving virus and more and more cases of AIDS are being reported every day across different parts of the world. At present almost around 50 million people across the world have been declared HIV positive of which a majority of the HIV population is constituted by the adolescents and young adults between the ages of 13 and 30 which is a matter of grave concern.
Apart from these categories, prisoners, sex workers, drug addicts and women also constitute the next category of the population suffering from HIV AIDS due to multiple reasons. The primary reason for increasing cases of AIDS among adolescents has been found to lack of awareness about safe sex and consequences of unprotected sexual intercourse as suggested by a research conducted by World Health Organisation (WHO).
HIV AIDS is transmitted primarily through sexual intercourse (including oral, and anal), 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 Aspect of AIDS:
Since the past so many decades, persons with AIDS have been stigmatised, subjected to various forms of discrimination in the fields of employment, education, marriage etc. Hence a plethora of statutes and legislations have been drafted by various ministries and jurists in India over past few years such as Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002), UNAIDS, constitutional remedies such as the right to life and right to equality (Articles 14 and 21 respectively), etc to protect the people with AIDS from being subjected to discrimination[1].
Apart from statutory provisions, several judicial precedents have also been laid down by the Supreme Court of India and foreign courts under several instances.
The legal provisions for HIV AIDS in India can be analysed in two dimensions: one which protects people suffering from HIV AIDS from discrimination and granting them rights and second, which criminalises the act of wilful or negligent transmission of HIV AIDS by the infected person to other normal persons around him due to lack of care and caution. Section 270 of the Indian Penal Code, 1860 lays down this provision.
People diagnosed with HIV+ are granted rights under Article 25(1) of UN Declaration of Human Rights (UDHR) which includes “the right to an 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”. Also, the UNAIDS guidelines 1996 lays down certain obligations and duties upon the nations to reform their laws so as to implement the HIV AIDS prevention strategy in a better manner by identifying and removing the obstacles.
The above two bodies are for recognising the legal aspects of HIV AIDS at a global level. Coming to the Indian scenario, The Indian Medical Council Act, 1956 lays down certain ethics and professional code of conduct for the medical personnel while dealing with AIDS patients which are as follows:
- Duty to take care and to take informed consent from the patient
- Disclosure of information & risks to the patient
- Provide information about options available & benefits
- Duty to warn
- To admit patient in an emergency without consent
- The physician should not abandon his duty for fear of contracting the disease himself.[2]
The above matter was related to the duties of medical professionals while dealing with patients of HIV AIDS patient. Apart from that, the patients have certain rights which are as follows:
A. Right to Treatment
Any person diagnosed with AIDS has a right to be given adequate treatment for his disease and no person can be denied this right on the basis of AIDS as a criterion for discrimination, further SC has also directed that the medical treatment for AIDS be provided free of cost to all those who cannot afford it after making thorough enquiries regarding the financial status of such marginalised patients so that no one misuses this facility.[3]
B. Right to Confidentiality
Any person diagnosed with AIDS has a right to privacy and his details should not be disclosed and should be kept confidential. However, there are certain exceptions to this right of confidentiality has been stated by SC in one of the judgements recently. In the case of Mr. X v. Hospital Z[4], 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”.[5]
C. Right to Employment and Right against 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 to equal treatment everywhere and they cannot be denied job opportunity on the ground of their HIV/IDS status[6].
In a landmark judgment in the matter of MX v. ZY[7], 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 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 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[8], 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’s 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[9], 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 a priority basis in accordance with the rules.
REFERENCES:
[1] The Joint United Nations Programme on HIV and AIDS, www.unaids.org.
[2] Legal Provisions In Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002).
[3] Right to Life under Article 21 of Constitution of India, 1950.
[4] AIR 1999 SC 495.
[5] Right to Privacy under Article 21 of Constitution of India, 1950.
[6] Right of Equal Employment Opportunity under Article 15 of Constitution of India, 1950.
[7] AIR 1997 Bom 406.
[8] (1996) 1 SCC 221.
[9] W.P. (C) No. 39569 of 2015.
