MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

HUMAN RIGHTS LAW

FINAL DRAFT

SEMESTER V

TOPIC: HIV/ AIDS AND HUMAN RIGHTS: AN INDIAN

PERSPECTIVE

Submitted To: Prof. Abhijit Rohi

Submitted By: Sakshi Salunke

Enrolment No: 2017043

B.A LL.B., (Hons.) – 3rd Year

 INTRODUCTION

HIV/AIDS is a topic where it is of utmost importance to first of all understand the problem. It
is important to know exactly what we are faced with, what we are called upon to tackle. The
expressions HIV and AIDS are expressions with which we are all quite familiar, but sometimes
one wonders what exactly is HIV? Human Immuno- Deficiency Virus. What does it do? A
person infected with this particular virus, after a number of years, may develop AIDS. What is
AIDS? Acquired Immuno-Deficiency Syndrome. And how does one get infected? Unsafe sex
is the major problem faced all over the world. Transmission can also occur through sharing
syringes or needles, and unsafe blood transfusions. Many people living with HIV/AIDS do not
know they are positive, which brings in another facet of this national debate: confidentiality
and disclosure.1 There is currently no HIV/AIDS legislation in place. Until today, what we
have had is decisions of the different courts at common law, interpreting certain provisions of
the Constitution of India. The decisions, on the whole, enforce certain human rights including
the rights of people who are HIV positive or suffering from AIDS, which are guaranteed by
the Constitution of India. It is on this basis that judgments have been delivered by the Indian
judiciary. The most important Article of the Constitution of India in this context is Article 21:
The right to life. The judiciary has stretched Article 21, as well as Articles 14,16 and even 19,
to try and provide some kind of relief to those who are infected and affected. As far as back as
1989, an attempt was made to introduce legislation in Parliament addressing the HIV/AIDS
epidemic The Bill was known as the Acquired Immuno-Deficiency Syndrome (AIDS) Bill,
1989. Before it could even see the light of day, the then Minister of Health, who was piloting
the Bill, sought to withdraw it. The reasons given for the withdrawal in a nutshell were that
HIV patients and AIDS patients should not remain isolated. The treatment towards such
patients should be humane and not be inhuman with no separate camps and compartments in
any hospital. Also, they should be treated as common human beings. The second thing is that
mostly HIV patients are found in high-risk groups called, in ordinary parlance, “commercial

1
Helpline law. Rights of HIV/AIDS patients in India. Accessed September 16, 2019.
http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html.
sex workers”.2 The Bill seeks that these people will be identified.” According to him, what led
to the withdrawal of the 1989 Bill was also reflected in the judgment of the Bombay High Court
in Lucy R D’souza V. State of Goa and others 3. One question which has arisen is whether the
national Government ought to be required to provide treatment free of custody to people who
are living with HIV/AIDS. This particular problem is still most prevalent among the high-risk
groups, that is commercial sex workers, migrant workers, men who have sex with men and
injecting drug users. Once a person becomes HIV positive, there is no cure for it. A person can
receive treatment to slow the effects of the virus on his or her body, but ultimately it is going
to result in AIDS.4

NACO is, of course, trying to contain this epidemic, through various methods including by
trying to disseminate information about the use of safety measures for all people when having
sex. HIV/AIDS is also a social menace.5 It is perhaps something which you cannot enforce by
law alone. You cannot, for example, compel someone to use a condom. That kind of
behavioural change must come about through awareness, which is what NACO is also trying
to bring about. It is currently proposed that the draft HIV/AIDS Bill will be presented to
Parliament in the Monsoon Session of 2007.6 Looking briefly at the opening provisions of the
Bill. The statement of objects and reasons provides: “Whereas the spread of HIV/AIDS is a
matter of concern to all, and whereas there is a need for protecting and promoting the rights of
those affected with HIV/AIDS in order to secure their human rights and prevent the spread of
HIV/AIDS and whereas there is a need for effective and accessible care, support and treatment
for HIV/AIDS, where there is a need to protect the rights of healthcare providers and other
persons in relation to HIV/AIDS.7 The Bill is divided into various sections which seek to
achieve these objects but is yet to be presented to Parliament. It is a sense of awareness that
needs to be inculcated and, as judges, in the absence of any legislation as such, we should all

2
“HIV/AIDS: The Basics Understanding HIV/AIDS.” National Institutes of Health, U.S. Department of Health
and Human Services, 3 July 2019, https://aidsinfo.nih.gov/understanding-hiv-aids/fact-sheets/19/45/hiv-aids--
the-basics.
3
AIR 1990 Bom 355
4
https://www.avert.org/professionals/history-hiv-aids/overview
5
http://www.annalsofian.org/article.asp?issn=0972-
2327;year=2006;volume=9;issue=1;spage=5;epage=10;aulast=Katrak
6
https://cdn2.sph.harvard.edu/wp-content/uploads/sites/25/2014/03/HHRRG_Chapter-2.pdf
7
Bhardwaj, Deepika. “HIV Cases Halved Since 2000: How India Plans to Become AIDS-Free by 2024.” The
Better India, 20 Jan. 2018, https://www.thebetterindia.com/128505/hiv-cases-halved-since-2000-india-plans-
aids-free-2024/.
use our own innovative methods in trying to provide relief to those persons who are affected
by this particular disease.8

HISTORICAL BACKGROUND

Since the ages of Mahabharata in India, we have seen that HIV/AIDS has been dominant among
Indians but with no remedies. HIV crossed from chimps to humans in the 1920s in what is now
Kinshasa in the Democratic Republic of Congo. Chimps were responsible for carrying the
Simian Immunodeficiency Virus (SIV), a virus closely related to HIV, being hunted and eaten
by people living in the region. The most commonly accepted theory is that of the 'hunter'. In
this scenario, SIVcpz was transferred to humans as a result of chimps being killed and eaten,
or their blood getting into cuts or wounds on people in the course of hunting. Normally, the
hunter's body would have fought off SIV, but on a few occasions the virus adapted itself within
its new human host and became HIV-1. There are four main groups of HIV strains (M, N, O
and P), each with a slightly different genetic make-up. This supports the hunter theory because
every time SIV passed from a chimpanzee to a human, it would have developed in a slightly
different way within the human body and produced a slightly different strain. This explains
why there is more than one strain of HIV-1. The most studied strain of HIV is HIV-1 Group
M, which is the strain that has spread throughout the world and is responsible for the vast
majority of HIV infections today.

OVERVIEW OF NACO

This is an overview of what we are doing at the National AIDS Control Organisation in respect
of the HIV/AIDS epidemic, which is now quite a serious concern in India. First of all, lawyers
and NGOs are able to make passionate pleas on distinct issues, but that we, as implementing
programmes, have to look at a broader picture, and have wider responsibilities. The first case
of HIV in India was discovered in 1986 in Chennai. Today, we estimate there may be some 5.2
million cases. The estimates are drawn up by using surveys from sentinel sites, which we have
established throughout the country. At each sentinel site, 400 unlinked anonymous blood

8
https://www.aidsdatahub.org/sites/default/files/documents/HIV_AIDS_in_India.pdf.pdf
samples are collected from people who come to the sites over a period of three to four months.
The blood samples from people who come to the sites over a period of 3-4 months. The blood
samples are tested, and those which test positive for HIV go to a national reference laboratory
for confirmation. Based on those positive test results, we take into consideration the
denominator of the population and arrive at an estimate of the prevalence level of the disease.
We extrapolate that to the whole country, and from there we draw the estimated number of
cases. 9

EPIDEMIC TRENDS IN INDIA SINCE 1986

In June 1981, the first reported cases of HIV emerged in the United States, with infections and
deaths surging rapidly thereafter. It was only a matter of time before India would have its first
reported case. In 1986, Dr. Suniti Soloman diagnosed India’s first cases of HIV among female
commercial sex workers (CSW) in Chennai. Within a year of the first diagnosis, approximately
135 cases of HIV had been diagnosed in India, of which 14 individuals’ infections had already
progressed to AIDS. As in other areas of the world, the propagation of the infection in India
occurred early on among certain high-risk groups, notably injectable drug users (IDU), CSW
and men who have sex with men (MSM). High risk groups reached greater than 5% HIV
prevalence by 1990,26 with groups such as CSWs in Maharashtra and IDUs in the north-eastern
states of Mizoram, Manipur and Nagaland illustrating the menacing potential of HIV to reach
pandemic proportions.10 In Manipur, for example, prevalence of HIV among IDUs increased
from 0% to 50% within the six-month period of September 1989 to March 1990; quickly
spreading to the general population, as seen by a sero-positive prevalence of 1% amongst
expecting mothers by 1991. In the early nineties, HIV/AIDS cases in India were rapidly
increasing and by then 242 individuals were known to have AIDS in 1992, a number which
more than doubled in a year to 522 in 1993. At this stage, the number of Indians living with
HIV had gone from thousands to over a million, HIV/AIDS was affecting the general
population en masse in high prevalence states, and HIV/AIDS had reached every state and
territory in the country. Although deaths from AIDS in India are difficult to estimate, and little

9
Felman, Adam. “HIV and AIDS: Overview, Causes, Symptoms, and Treatments.” Medical News Today,
MediLexicon International, 29 Nov. 2018, https://www.medicalnewstoday.com/articles/17131.php.
10
https://journals.lww.com/aidsonline/Fulltext/2004/01001/Introduction___HIV_AIDS_and_Aging.1.aspx
or no data on AIDS-related deaths has been gathered by the Government, it is clear that twelve
years into the epidemic, huge numbers of people were dying. According to the 2000 WHO
annual report, there were 1,79,365 AIDS deaths in India in 1998, the vast majority of which
were people between the ages of 15 and 49. In 2003, however, the Health Minister of India
claimed in Parliament in response to a written question, that only 2,931 people had died of
AIDS in the period 2000-2003.11 This shows both that accurate record keeping has not been
maintained, and that the Government of India has based its programmes on figures which
appear to show massive underreporting. It is not difficult to imagine the pressure families can
bring to bear for a death actually attributable to AIDS to be recorded as due to some other cause
e.g. heart failure, or pneumonia. In 2000, the profile of new HIV/AIDS cases by transmission
was as follows: 74.17% unsafe heterosexual sex; 7.3% injectable drug use; 7.05% unsafe blood
transfusion; 0.58% unsafe homosexual sex; and 10.92% other. At the turn of the millennium,
HIV/AIDS was clearly no longer a phenomenon affecting isolated groups of society, rather it
was affecting lives in every sector of society, and AIDS was tearing families apart and leaving
thousands of children, many of whom were HIV positive themselves, orphaned. A 2002 World
Bank estimate suggested that India had the world’s largest number of AIDS orphans. HIV had
now become one of the most serious challenges in the country, with epidemics affecting the
general population in Maharashtra, Karnataka, Andhra Pradesh, Tamil Nadu, Manipur and
Nagaland. As per NACO figures, the period between 2003 and 2005 saw HIV prevalence
amongst high risk groups and the general population (as indicated by antenatal clinic
prevalence numbers) begin to level off. In 2004, there were 62,785 AIDS cases reported by
NACO.12 The World Health Organisation estimated that by the end of 2005, of the 22,00,000-
76,00,000 PLHA in India 7,85,000 needed ARV treatment but only 24,000 were receiving it,
i.e. just over 3% of those in need. Such estimates of HIV infection and need for treatment are
only rough estimates because of the dismal job done by the Government in monitoring the
epidemic to date. As of June 2005, NACO claimed there were 1,11,608 AIDS cases in India.42
Although this may be the number of AIDS cases reported to NACO, it clearly cannot be the
true number of AIDS cases in the country. If this were true, India would have by far the lowest
proportion of HIV-infected persons developing AIDS in the world. Indeed, the Union of India
admitted in its counter-petition in the Voluntary Health Association of Punjab case that there
were at least 5,10,000 HIV/AIDS cases in India that require treatment, and that that number is

11
http://nhrc.nic.in/press-release/rights-based-approach-needed-address-hivaids-threat
12
“Rights Based Approach Needed to Address HIV/AIDS Threat.” National Human Rights Commission India,
http://nhrc.nic.in/press-release/rights-based-approach-needed-address-hivaids-threat.
increasing each year. Even today in 2008, the Government still does not monitor the number
of AIDS deaths per year in the country, although this information is required to accurately
understand the scope of the epidemic.13 The lack of accurate information gathering by the
Government on PLHA up until around 2005 becomes dramatically apparent at the state level.
According to NACO, up until mid-2006, Chhattisgarh had never had a single AIDS case, and
almost all states were clearly underreported – see for example Bihar reporting 155 cases, Orissa
467 and Jammu and Kashmir only two. The Government of India still does not, however,
follow up in a uniform manner with those people who drop out of treatment programmes to
find out whether e.g. they have moved away, whether they have died, whether they have
developed drug toxicity, whether they found supplies of their prescribed drugs unavailable at
their nearest ART centre etc. Despite an increase in the quantity and quality of data relating to
HIV/AIDS epidemiology in India, there was a large shift in the reported statistics in summer
2007, when the Government of India came out with a drastically revised figure for the total
number of PLHA in India. Prior to 2007, the estimated number of PLHA in India had been
placed at 5.1 million – and this figure was quoted and supported by NACO and the multilateral
agencies which had been involved in the surveillance process.14 Current estimates, announced
in summer 2007, now place the figure at around 2.5 million PLHA in India.46 It is first of all
important to recognise that this does not represent a decline in the number of people living with
HIV/AIDS in India. It represents merely a change in the way they are counted. These new
figures are also supported by the WHO, UNAIDS and the World Bank. Many parts of society
are surprised and sceptical about this dramatic shift in the Government’s approach to measuring
the problem, and the way in which the figures

THE INFLUENCE OF HUMAN RIGHTS LAW ON THE HIV/AIDS

EPIDEMIC

This article has described some of the many initiatives that are being undertaken in different
contexts and that reflect approaches to law and policy related to HIV/AIDS that have roots in
international human rights law. This body of law provides powerful tools for three distinct
sectors seeking to address the HIV epidemic. First, human rights law helps states respond
appropriately to the challenges of the HIV/AIDS epidemic by providing a framework on which

13
https://www.hrw.org/news/2002/07/10/hiv/aids-india-epidemic-abuse
14
https://edtimes.in/basic-rights-of-hiv-positive-people-in-india/
they can formulate laws and policies that integrate public health objectives and human rights
standards. Second, human rights provide a basis for tools for nongovernmental organizations
and advocacy groups to use to monitor the performance of states in their policies and
programmes and to take action for redress when public health policies violate rights. Third,
human rights also speak to the obligations of public health practitioners with responsibilities
for the protection and promotion of health at a population level. In public health itself there is
increasing debate about what its ethos and value systems should be in a globalizing
environment.15 The emphasis is increasingly on re-establishing a commitment to social justice
and popular participation that ‘‘locates organized and active communities at the centre as
initiators and managers of their own health’’.16 For those reasons, public well-being
practitioners should be familiar with human rights tools and understand their origins, potential
and limitations. Importantly, the rights-based approach to HIV/AIDS needs people infected
and affected to be meaningfully included and to participate in the design and implementation
of effective policies and programmes. Practitioners not yet comfortable with these approaches
might well consider strategic alliances with skilled advocates and affected communities to
advance common agendas.17

UNIVERSAL ACCESS TO HIV/AIDS TREATMENT: A

FUNDAMENTAL RIGHT

The Government of India had a ‘prevention only’ approach to HIV/ AIDS entirely ignoring the
treatment component until April 2004. A prevention-only approach to HIV ignores the right to
health of those who need care, violates their dignity, devalues their lives, and fuels stigma and
discrimination against their HIV positive status. As set out below, international treaties strongly
articulate the universal rights to life and health, while foreign jurisprudence shows that these
rights have been interpreted to mean Governments must provide comprehensive HIV/AIDS

15
“HIV/AIDS in India: UNICEF.” UNICEF India, http://unicef.in/Story/601/HIVAIDS-in-India.
16
http://ijme.in/articles/aids-and-the-law-opportunities-limitations/?galley=html
17
“Discrimination against AIDS Patients: Laws for Protection in India.” LAWNN, 6 Apr. 2018,
https://www.lawnn.com/discrimination-aids-patients/.
treatment. 18The right to HIV/AIDS treatments founded on the right to life in Article 21 of the
Indian Constitution and is supported by case law and international law. International treaties
make clear the connection between the right to life and the right health. These rights demand
the Government provide HIV/AIDS treatment for those in need when it is within the
Government’s ability to do so. In many countries, the judicial system has enforced these rights
to ensure that HIV/AIDS treatment is available to all those individuals in need.19

INTERNATIONAL TREATIES

Article 25(1) of the Universal Declaration of Human Rights (UDHR) articulates a basic right
to health:

“Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.”20

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
reaffirms and builds upon the right to health found in the UDHR by recognising,

“The right of everyone to the enjoyment of the highest attainable standard of physical and
mental health”.21

INDIAN LAW ON ACCESS TO TREATMENT

The international community has endorsed the importance of human rights, but the guarantee
of rights in the health sector remains the principal responsibility of States, and they must
convert the rights into a cognizable reality. The Indian legal system’s ability to guarantee the
right to health is entrenched in the Indian Constitution and the creative interpretation of the
constitutional provisions by the Supreme Court of India.

18
Pti. “Health Ministry Implements HIV, AIDS Act.” The Economic Times, Economic Times, 11 Sept. 2018,
https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/health-ministry-implements-hiv-
aids-act/articleshow/65767566.cms?from=mdr.
19
http://data.unaids.org/publications/irc-pub02/jc587-india_en.pdf
20
https://www.indianpediatrics.net/sep2015/811.pdf
21
https://pib.gov.in/newsite/PrintRelease.aspx?relid=183393
Article 21 provides:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law. “

The Indian Supreme Court has recognised in its jurisprudence that the right to life is
meaningless unless accompanied by the guarantee of certain social rights, which make possible
the chance to live life with dignity.22

TAPPING THE POTENTIAL OF COMMUNITIES TO END HIV/AIDS

‘Success is achieved where policies and programmes focus on people and not diseases.’

The UN sustainable Development Goals include ensuring good health and well-being for all
by 2030. This includes the commitment to end the AIDS epidemic. In many countries,
continued access to HIV treatment and prevention options are aggravating AIDS-related deaths
and new HIV infections. But there are still too many countries where AIDS- related deaths and
new infections are not decreasing rapidly. In fact, they are rising in some cases, though we
know how to abstain the virus. Why are some countries doing much better than others?

Success is being achieved where policies and programmes focus on people and not diseases
and where communities are fully engaged from the outset in designing, shaping and
implementing health policies. This is how real and lasting change is achieved and this is what
will reduce the devastating impact of AIDS. Adopting the latest scientific research and medical
knowledge, proactively fighting and reducing stigma and discrimination are all crucial. But
without sustained investment in community responses led by people living with HIV and those
most affected, countries will not gain the traction necessary to reach the most vulnerable. And
only by doing that can we end the AIDS epidemic. Community services play varying roles
depending on the context. They often support fragile public health systems by filling critical
gaps. They come from and connect with it effectively like gay men, sex workers, people who
use drugs, and transgenders. They provide services that bolster clinic-based care and they
extend the reach of health services to the community at large. They also hold decision-makers

22
http://medind.nic.in/jac/t00/i1/jact00i1p16.pdf
to account. By signing the 2016 UN Political Declaration on ending AIDS, countries affirmed
the critical role that communities play in advocacy, coordination of AIDS responses and service
delivery. Moreover, they recognised that community responses to HIV must be elevated. They
committed to at least 30% of services being community-led by 2030. However, most countries
are nowhere near reaching that commitment and where investment in communities is lacking,
there is often weaker progress made against HIV and other health threats. All over the world,
communities are demonstrating time and again that they can, and do, deliver results. Since the
beginning of the epidemic in India until now, communities have been the most trusted and
reliable partners for the National AIDS Control Organisation and the Joint UN Programme on
HIV/AIDS. They are fully engaged in many aspects of the National AIDS Response, including
prevention, support, care and treatment programmes. There are over 1,500 community-based
organisations reaching out to key populace. In India, there are around 300 district-level
networks of people living with HIV which are supporting treatment programmes through
psychological support, treatment literacy and adherence counselling. Our communities present
us with a lot of untapped potential. Unleashing this is the key to gaining the momentum we
need to expediate progress towards reaching UNAIDS Fast-Track targets. The more we invest
in communities, the closer we get to ending the HIV/AIDS epidemic.23

CONCLUSION

In April 2017, the govt. of India gave its approval for an important bill that talked about
ensuring that people suffering from HIV and AIDS are given equal rights in educational
institutions, jobs and treatment centres. In this context it is obviously the point to mention that
HIV/AIDS persons if treated just like other human beings their life will be extended. Treating
these persons humanely is necessary and law will definitely help them in this regard.

23
https://onlinelibrary.wiley.com/doi/full/10.1111/odi.12457
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