HIV AND LAW
A large section of Indians are infected with the Human Immuno-deficiency (HIV) Virus, which eventually leads to the Acquired Immuno Deficiency Syndrome (hereinafter referred to as ‘AIDS’).
Until recently, HIV infection meant almost certain death for persons infected with the HIV virus (hereinafter referred to as ‘positive persons’), as in the absence of any kind of drug to combat the infection, the HIV condition would rapidly manifest into AIDS and bring usher in severe agony and suffering to the victim’s short life span.
However, in the last few years with the development of a new class of drugs called ARV drugs, HIV has ceased to be such fatal affliction and is now seen as a chronic, manageable disease. Significantly, with a continuous and systematic administration of these ARV drugs, a positive person can get a remarkably enhanced life span with many more healthy and productive years to look forward to.
The State governments owe an inalienable duty to its citizens to ensure a dignified standard of living for them, which includes access to adequate healthcare facilities, under the cover of their fundamental right to life and equality as enshrined under the Constitution Of India.
is one of the most significant human right abuses individuals and communities faces with respect to HIV/AIDS. It includes Denial of right to employment, Denial of right to marry, Denial of treatment, Arbitrary HIV testing, Right to Privacy etc
There is a lack of National Legislation. On HIV/Aids in India and one has to look to the Constitutional provision giving fundamental rights to citizens and the effected person is not deprived of his basic fundamental rights under the Indian Constitution.
The Goa, Daman and Diu Public Health Act,1985 empowered the State Govt. to isolate persons found to be positive for HIV for such period and under such conditions as may be necessary. The Court held that the Act is reasonable and valid and did not violate the rights to equality, freedom of movement, and life of the of India. That the individual’s right to liberty must be balanced against public interest
The Courts hold that an HIV person cannot be denied employment as long as he can perform his duties and does not pose a significant risk to others. To protect an HIV person from discrimination, he could be allowed to prosecute his case under a pseudonym.It could hardly be presumed that an effected person intended to contract the fatal and stigmatic health order and would be happy to reap the benefits of a pension.
Given a choice he would prefer to work. It’s the duty of the Government to provide for health care and a pension.
The Supreme Court holds :that patient’s right to confidentiality was not enforceable in a situation where the patient is HIV(+), and stood the risk of spreading the infection to his prospective spouse. Since HIV is fatal, the right to privacy of the patient is not absolute thus may be restricted.
Maintenance to HIV positive wife and the child was provided for in a divorce petition U/S 13 (1) (i) of the Hindu Marriage Act.
The Supreme Court laid down the following important directions for blood banks
l Professional donors to be completely eliminated within a period of not more than two years.
l Blood Banks must be licensed.
l Necessary steps to be taken to ensure that the Drug Inspectors are duly trained in blood bank operations and the checking of blood bank operations in the country.
Regarding blood transfusion it was the incumbent on the medical staff of the hospital to carry out the requisite tests for detecting HIV at the time the blood transfusion. Confidentiality of PLWHA be maintained, Strict Vigilance of blood Banks and sufficient HIV kits to be provided in all hospitals use disposable needles, efforts to be made to provide ARV’s drugs free of cost to those infected.
The concept of informed consent is not fully developed in India. The principal of informed consent to be taken in writing, even if it is from a relative, has not been articulated in the Indian context.
Courts have directed Medical Authorities to test each person before surgery. It suggested that the state should take active measures to identify people living with HIV. It further justified mandatory testing and isolation of people.
In the present scenario the existing laws do not restrain an infected person from leading a normal life surely with a caution that the immunity carried by the infected person doesnot spread and further a large number of Indian citizen come under the fold Acquired Immuno Deficiency Syndrome.