29 Understanding India’s response to HIV/AIDS: Policies, Programmes and Legislative Interventions

1. Learning Outcomes

2. Introduction

3. HIV/AIDS in India- A Situational Analysis

4. Constitutional Guarantees important in the context of HIV/AIDS

5. India’s Legal Response to HIV/AIDS

5.1.  Policies and Programme

5.1.1. National AIDS Control Programme

5.1.2. National Aids Prevention and Control Policy (NAPCP), 2002

5.1.3. National Blood Policy, 2007

5.1.4. National Policy on HIV and the World of Work, 2009

5.2. The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2014

6. Summary

1. Learning Outcomes

By the end of this module, the reader shall be able to:

• Understand the policy framework in India to combat HIV/AIDS.
• Comprehend the constitutional guarantees important in the context of HIV/AIDS.
• Understand the legislative measures undertaken to protect the rights of persons infected/ affected by HIV/AIDS.

2. Introduction

Laws and legal systems of a country have huge impact in the fight against HIV epidemic. While international human rights framework has a vital role in prevention of HIV, it is the progressive national laws which can contribute even more effectively in arresting the spread of the disease. Studies have shown that laws which criminalize same- sex sexual activity, allow mandatory testing for HIV, prohibit condoms in prison etc. are obstacles in preventing HIV.

A 2006 Report of UNAIDS on the Global AIDS epidemic reveals that, despite widespread recognition that stigma and discrimination fuels spread of HIV, only six in ten countries in the world have any laws or regulations that prohibit discrimination against those living with HIV. This module examines India’s legal response to HIV/AIDS.

3. HIV/ AIDS in India- A Situational Analysis

Over the past three decades, since the first detection of HIV infection in commercial sex workers in Chennai, HIV has emerged as one of the most serious public health challenges and human rights issue in the country. While as a percentage of the overall population, the HIV prevalence rates in the country may seem low, as low as 0.35%, it is actually high in absolute figures. According to the ‘GAP Report’ by UNAIDS, published in 2014, India has the third highest number of people living with HIV in the world, in 2013, after South Africa and Nigeria. With 2.1 million infected persons, this accounts to about four out of ten people infected with HIV in Asia- Pacific region.

The epidemic is more prevalent among certain high- risk behaviour groups like female sex workers, men- who have sex with men, transgender and injecting drug users. According to the Annual Report 2014-15 of National AIDS Control Organization (NACO), targeted intervention has led to considerable decline in HIV prevalence amongst these groups. The highest prevalence of HIV/AIDS in the country was recorded from Nagaland (0.88%), followed by Mizoram (0.68%), Manipur (0.64%), Andhra Pradesh (0.59%) and Karnataka (0.53%).

4. Constitutional Guarantees important in the context of HIV/AIDS

While there are no specific constitutional provisions mentioning the people living with HIV in the Indian Constitution, the principle of equality and non-discrimination embedded in the constitution is crucial in the context of HIV. The mandate of Article 14 prohibiting discrimination, extended by Articles 15 and 16, become critical for people living with HIV who are constantly subjected to widespread discrimination, be it in the matters on employment, education, health care etc.

Right to life and personal liberty enshrined in Article 21 of the Constitution is equally important for people infected/ affected by HIV. It includes right to live with human dignity, and all that goes along with it. Dignity often stands violated in the case of people living with HIV. Their basic right to life comes to a standstill with loss of jobs, barriers in access to educational and healthcare facilities and other socio- economic and legal hurdles. The expression ‘personal liberty’ is also of widest amplitude and covers a wide variety of rights. Autonomy of the individual is mostly violated when the people living with HIV or vulnerable to HIV are forced to mandatory testing.

Other Constitutional provisions which have particular significance in protecting the interests of persons infected/ affected by HIV are:

• Article 19 which includes right to freedom of speech and expression (Art.19 (1)(a) ), right to assembly (Art.19 (1)(b) ), right to association (Art. 19 (1)(c) ), right to move freely throughout the territory of India (Art. 19 (1) (d) ), right to reside and settle in any part of the territory of India (Art. 19(1) (e) ) and right to practice any profession, or to carry on any occupation, trade or business (Art. 19(1) (g) ).
• Article 20 providing protection in respect of conviction for offences.
• Article 21- A making free and compulsory education a right of all children of the age of six to fourteen years.
• Article 22 which gives protection against arrest and detention in certain cases.
• Article 23 providing the right against exploitation
• Article 32 providing the right to constitutional remedies.
• Article 38 requiring the State to secure a social order for the promotion of welfare of the people.
• Article 39 which includes certain policies to be followed by state including securing right to an adequate means of livelihood, securing that the health and strength of workers and tender age of children are not abused and ensuring that citizens are not forced by economic necessity to enter avocations unsuited for their age or strength. It is directs the State to secure that children are given opportunities and facilities to develop in a healthy manner, in conditions of freedom and dignity and childhood and youth are protected against exploitation and moral and material abandonment.
• Article 41 directing the State to secure, within the limits of its economic capacity and development, right to work, to education and to public assistance in cases of unemployment, sickness and disablement.
• Article 42 which requires State to make provisions for just and humane conditions of work.
• Article 43 which requires State to secure living wage and conditions of work ensuring a decent standard of life and social and cultural opportunities.
• Article 47 which provides the duty of State to raise the level of nutrition and standard of living and to improve public health.

4. India’s Legal Response to HIV/AIDS

A comparative analysis of compliance of nine countries with the international legal norms on HIV/AIDS, undertaken by UCLA School of Law, place India in the second lowest position. There is no specific statute to address the issues arising of HIV/AIDS and there also exists inherent contradictions in many of the existing laws and policies. For instance, criminalization of sexual activity between men, soliciting for sex work etc. goes against the global understanding in combating the epidemic and in effect impedes many vulnerable sections from getting detected and treated. A survey of the national legal response to HIV/AIDS is given below.

5.1. Policies and Programmes

5.1.1. National Aids Control Programme (NACP)

Soon after the detection of first AIDS case in the country, the National AIDS Committee was constituted in the Ministry of Health and Family Welfare in 1986. While in the initial years, focus of the Committee was on awareness generation, introduction of blood screening for transfusion purposes and conducting surveillance activities in the epicenters of the epidemic, in 1992, a multi sectoral strategy for prevention and control of AIDS was formulated. The growing epidemic resulted in the launch of the country’s first National AIDS Control Programme (NACP) in 1992 and the constitution of the National Aids Control Organization (NACO) to implement the Programme. NACP is a 100 per cent centrally sponsored scheme and currently in its fourth phase- NACP-IV, it aims to reduce new infections by 50% (2007 Baseline of NACP III) and provide comprehensive care, support and treatment to all persons living with HIV/AIDS. The key strategies devised to achieve these objectives include intensifying and consolidating prevention services with a focus on High Risk Groups and vulnerable population, increasing access and promoting comprehensive Care, Support and Treatment, expanding IEC services for general population and High Risk Groups with a focus on behavior change and demand generation, building capacities at National, State & District levels and strengthening the Strategic Information Management System. The five cross cutting themes which are being focused under NACP-IV include quality, innovation, integration, leveraging partnerships and stigma and discrimination.

It has been criticized until recently that the Government of India had mostly a ‘prevention only’ approach. However, there has been a rethinking on this strategy and the NACO report of 2014-15 notes that ‘Prevention and Care’ and ‘Support and Treatment’ form the two key pillars of HIV/AIDS control efforts in the country.

5.1.2.    National Aids Prevention and Control Policy (NAPCP), 2002

The National Aids Prevention and Control Policy of 2002 place emphasis on the critical link between HIV/AIDS and human rights. It states that “…when human rights are protected, fewer people become infected and those living with HIV/AIDS and their families can better cope with HIV/AIDS. Government recognizes that without the protection of human rights of people who are vulnerable and afflicted with HIV/AIDS, the response to the HIV/AIDS epidemic will remain incomplete”. It further calls attention to the fact that HIV/AIDS is not a mere public health challenge, but a development issue to which multi sectoral response needs to be evolved.

To achieve the general objective of preventing the epidemic from spreading further and controlling it, it charts out several strategies including awareness generation, ensuring availability of safe blood etc.

It also identifies certain issues as critical for bringing in a paradigm shift in the response to HIV/AIDS, both at level of government and outside it. These comprise shifts in programme management; strong advocacy and social mobilization to fill the serious information gap; large scale involvement of Non-Governmental Organizations /Community Based Organizations at policymaking, provision of services, training and capacity building; prevention and control of sexually transmitted diseases; use of condoms as HIV/AIDS prevention measure; HIV testing on a voluntary basis with appropriate pre-test and post- test counseling; expansion in counseling services; ensuring protection of right to privacy and other human rights and proper care and support for people living with HIV; building up a proper surveillance system to assess the magnitude of HIV infections in the community; tackling the increasing injecting drug use; ensuring safety of blood and blood products; encouraging and supporting research and development and developing bilateral and international cooperation to fight the epidemic. Carving out an increased role for State governments, it requires them to develop strong ownership of HIV/AIDS prevention and control and devise their own strategies and action programmes to tackle the disease, as the prevalence of the disease and its implications vary from states to states.

‘No public health rationale for mandatory testing of a person for HIV/AIDS’

• At a time when countries across the world were mooting mandatory HIV testing, National HIV Testing Policy of 1995 stated that
• No individual should be made to undergo a mandatory testing for HIV.
• No mandatory HIV testing should be imposed as a precondition for employment or for providing health care services and facilities.
• Any HIV testing must be accompanied by a pre-test and post-test counseling services informed consent. Confidentiality of result should be maintained.
• Mandatory testing is recommended only for blood transfusion and screening donors of semen, organs or tissues in order to prevent transmission of HIV to the recipient of the biological products. But in such cases, the test should not be linked to identity of individual.
• Recognizing that there is no public health rationale for mandatory testing of a person for HIV/AIDS, even the National Aids Prevention and Control Policy, 2002, observed that mandatory HIV testing could be counter- productive, scaring suspected cases from getting detected and treated.

5.1.3.  National Blood Policy, 2007

Ensuring easily accessible and adequate supply of safe and quality blood and blood components is vital for the elimination of transfusion transmitted infections. The blood banking system in the country is highly fragmented, lacking manpower, adequate infrastructure and financial base. Being highly decentralized, the standards vary from state to state. The government, through this Policy aims at an integrated strategy, including collection of blood only from voluntary, non-remunerated blood donors, screening for all transfusion transmitted infections and reduction of unnecessary transfusion to ensure elimination of transfusion transmitted infections and for provision of safe and adequate blood transfusion services to the people. To achieve this aim, it identifies certain objectives, which are as follows:

• To reiterate firmly the Govt. commitment to provide safe and adequate quantity of blood, blood components and blood products.
• To make available adequate resources to develop and reorganize the blood transfusion services in the entire country.
• To make latest technology available for operating the blood transfusion services and ensure its functioning in an updated manner.
• To launch extensive awareness programmes for donor information, education, motivation, recruitment and retention in order to ensure adequate availability of safe blood.
• To encourage appropriate clinical use of blood and blood products.
• To strengthen the manpower through human resource development.
• To encourage Research & Development in the field of Transfusion Medicine and related technology.
• To take adequate regulatory and legislative steps for monitoring and evaluation of blood transfusion services and to take steps to eliminate profiteering in blood banks.

Pharmacy of the developing world

India is often called the ‘pharmacy of the developing world’ and several low- and middle- income countries look up to India’s experience of ensuring accessibility and affordability of life saving drugs to millions. The patent policy framework in India, prior to TRIPS, has allowed process patents, thereby helping the development of a strong generic pharmaceutical sector in the country. Access to generic medicines, which were available at much cheaper prices, was critical in scaling up the treatment access, not just to people living with HIV in India, but abroad too. A 2010 study found that at least 80%of ARVs purchased by low- and middle-income countries came from Indian generic pharmaceutical companies. However, India is increasingly under pressure from countries like United States to dilute its patent norms to tune with TRIPS requirements. It is embroiled in much litigation with pharmaceutical giants and so far, India has issued just one compulsory license, for a cancer drug in 2012.

5.1.4.  National Policy on HIV and the World of Work, 2009

Although there is no scientific proof to show that HIV gets transmitted through ordinary workplace contact, rampant human right abuses take place at the world of work. The effect of this is not limited to individual level, but transcends to household level and national economies too. Income of workers and supply of labour has got affected in those countries with high prevalence of HIV. Taking note of the impending crisis, especially as nearly as 90 per cent of the reported HIV infections in the country fall in the most productive age group of 15-49 years, the Ministry of Labour and Employment and National Aids Control Organization has jointly developed a national policy guideline on HIV/AIDS interventions in the world of work. It is especially important as the country still lacks a legislative framework on HIV/AIDS. A number of landmark judgments governing the issues related to employment of people living with HIV and India’s ratification of the ILO Convention No.111 on Discrimination (Employment and Occupation) provides relevant background for such a policy statement.

Based on the principles of human rights, this Policy aims to guide the national response to HIV/AIDS in reducing and managing the impact of epidemic in the world of work. It specifically aims to

• Prevent transmission of HIV infection amongst workers and their families;
• Protect rights of those who are infected and provide access to available care, support and treatment.
• Protect workers from stigma and discrimination related to HIV/AIDS by assuring them equity and dignity at the workplace;
• Ensure safe migration and mobility with access to information services on HIV/AIDS.

It adopts the key principles of the ILO Code of Practice on HIV/AIDS and the World of Work that is in line with the Government of India’s National HIV/AIDS policy. The ten guiding principles include identification of HIV/AIDS as a workplace issue, non- discrimination, gender equality, healthy work environment, social dialogue, no screening for the purpose of employment, confidentiality, continuation of employment relationship, prevention and care and support.

It requires HIV/AIDS policy and programmes to be established in all constituents- Ministries and their key institutions, employers’ and workers’ organisations, public and private sector enterprises / multi-national companies and civil society organisations, based on the principles and implementation guidelines enlisted therein. Significantly, the Policy applies to all employers and workers (including applicants of work) in the public as well as private sectors, all workplaces and contracts of employment and all aspects of work – formal and informal and the self employed worker including the spouse and children or other dependant family members of a worker. A Steering Committee on HIV/AIDS and the World of Work comprising of employers’ and workers’ organizations, development agencies, NACO, Ministry of Labour and Employment, and people living with HIV is also proposed to oversee/facilitate implementation of broad policy guidelines and take strategic decisions related to HIV/AIDS programmes in the world of work in India. All the stakeholders who are responsible for implementing the workplace policy on HIV/AIDS are required to make suitable budgetary allocation for the various HIV prevention, care and support programmes to be undertaken by them.

5.2. The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2014

While some countries have enacted HIV legislations, there is no such legislation in India. Most of the legal issues arising in the context of HIV in the country have been dealt by the judiciary, whose approach to the issue is left to the predilections of individual judges. While a number of policies have been adopted by the country to combat the epidemic, it is of non- binding nature.

On 11th February, 2014, The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2014 (hereinafter HIV/AIDS Bill) was tabled in Rajya Sabha. The process of drafting the HIV/AIDS Bill started in 1989. The first HIV/AIDS Bill was however subsequently withdrawn, as it had regressive provisions like mandatory testing and confinement of infected persons. Later, in 2003, when the International Policy Makers Conference on HIV/AIDS highlighted the need for such legislation, Lawyers Collective, an NGO which has done pioneering work in ensuring justice to those infected and affected by HIV/AIDS was asked to develop a draft legislation on HIV. Though the draft has been prepared and submitted, way back in 2006, it has still not been passed by the Parliament.

The Bill recognizes that there is an urgent need for the prevention and control of HIV and AIDS and also to protect and secure the human rights of persons who are HIV-positive, affected by HIV and AIDS and vulnerable to it.

Key provisions of the Bill are given below:

• Defines discrimination on HIV related grounds and prohibits discrimination in employment or occupation, healthcare services, educational establishments and services, accommodation, access or enjoyment of any good, service etc. dedicated to the use or available to the public, government or private establishment, insurance, right to reside, movement etc.
• Subject to certain exceptions, informed consent required for undertaking HIV test or treatment.
• Subject to certain exceptions, rights to privacy and confidentiality of a person with respect to disclosure of HIV status protected.
• Duty on a person who is HIV positive and has been counseled in accordance with the guidelines issued or is aware of the nature of HIV and its transmission, to take all reasonable precautions to prevent the transmission of HIV to other persons.
• Obligation on establishments keeping record of HIV-related information of protected persons to ensure confidentiality of data.
• Obligation on Central and State government for providing, as far as possible, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS.
• Obligation on the appropriate government to ensure protection of children affected by HIV and AIDS.
• Obligation of establishments to provide safe working environment and set up grievance redressal mechanism.
• Promotion of strategies for reduction of risk.
• Appointment of Ombudsman by every State Government, to inquire into violations of the provisions of this legislation.
• Special provisions for protection of certain vulnerable sections including women, children, persons in care or custody of government etc.

5. Summary

A lot of laws in the country are enacted as a result of knee jerk reactions and most of these have failed to achieve its objectives. Global evidence shows that the legal responses against HIV need to be evidence based. The experience of civil society organizations being asked to frame HIV legislation in the country is encouraging. However, unfortunately, the draft legislation still waits to get through the Parliament. Although the National AIDS Prevention and Control Policy supports rights based approach, it lacks the sanction of law. Most of the HIV jurisprudence in the country is today developed by courts. Certain legislative provisions still continue to be regressive. In order to realize India’s commitment to protecting the lives of people living with HIV, it is crucial that the country strengthen its legal response to HIV/AIDS, and pass the HIV legislation.

Reference

1. “AIDS: Where India stands on HIV control”, The Indian Express, December 1, 2014, Available at:http://indianexpress.com/article/india/india-others/aids-where-india-stands-on-hiv-control/?cv=1
2. NATIONAL BLOOD POLICY, National AIDS Control Organization, Ministry of Health & Family Welfare Government of India.
3. “No one will be forced to undergo HIV test: Government”, Dhananjay Mahapatra, The Times of India, August 24, 2007