THE HIV / AIDS BILL
Item
- Title
- THE HIV / AIDS BILL
- extracted text
-
RF_DIS_2_T_SUDHA
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THE HIV/AIDS BILL 2004
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THE GAZETTE OF INDIA
EXTRAORDINARY
PART II — Section 1
PUBLISHED BY AUTHORITY
NO. 12 NEW DELHI, [Day|, [Month, Date, Year| I PAUSA 24, 1924
Separate paging is given to this Part in order that it may be
filed as a separate compilation.
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the [Date] /Pausa [ ] (Saka)
The following Act of Parliament received the assent of the President on the [ ]
and is hereby published for general information:—
THE HIV7AIDS BILL 2004
No. [ ] OF 2004
[Date]
CHAPTER I
PRELIMINARY
Short title, extent and commencement
CHAPTER II
Protection, Promotion and Recognition of Certain Rights
CHAPTER III
Prohibition of Unfair Discrimination
Chapter IV
Consent
Chapter V
Disclosure of Information
Chapter VI
Right of Access to Treatment
Chapter VII
Right to Safe Working Environment
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Chapter VIII
Promotion of Strategies for Reduction of Risk
Chapter IX
Prohibition of Quackery
Chapter X
Social Security
Chapter XI
Information, Education and Communication
Chapter XII
Appointment of Health Ombudspersons
Chapter XIII
Establishment of HIV Commissions
Chapter XIV
Institutional/Healthcare Workers Obligations
Chapter XV
State Obligations
Chapter XVI
Special Provisions
Chapter XVII
Special Procedures in Court
Chapter XVII
[Penalties]
Chapter XIX
Miscellaneous
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THE GAZETTE OF INDIA
EXTRAORDINARY
PART II —Section 1
PUBLISHED BY AUTHORITY
NO. 12 NEW DELHI, [Day], [Month, Date, Year] / PAUSA 24, 1924
Separate paging is given to this Part in order that it may be
filed as a separate compilation.
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the [Date] /Pausa 24, 1924 (Saka)
The following Act of Parliament received the assent of the President on the [ ]
and is hereby published for general information:—
THE HIV/AIDS BILL, 2004
No. [ ] OF 2004
[Date]
[A Bill to provide, keeping in view the social, economic and debilitating effects of the
HIV epidemic in India, for [prevention and control of the HIV epidemic in India, the
protection and promotion of human rights in relation to HIV/AIDS, for the establishment
of National, State and Union Territory Commissions to promote such rights and promote
prevention and awareness programmes [treatment?] to control the spread of HIV, and for
matters connected therewith or incidental thereto.]
Whereas HIV/AIDS is assuming ever-increasing proportions in the country, and
Whereas there is a need to prevent and control the spread of HIV/AIDS, and
Whereas there is a need to protect and promote the rights of those who are HIV-positive,
those who are affected by HIV/AIDS and those who are most vulnerable to HIV/AIDS in
order to secure their human rights and prevent the spread of HIV/AIDS, and
Whereas HIV/AIDS has been declared a global health emergency
Whereas there is a need to protect the rights of other persons including healthcare
providers in relation to HIV/AIDS, and
Whereas the Union of India has signed various treaties and declarations relating to
HIV/AIDS, the protection of rights of those who are HIV-positive, those who are affected
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by HIV/AIDS and those who are most vulnerable to HIV/AIDS in order to secure their
human rights and prevent the spread of HIV/AIDS. and
Whereas it is necessary to give effect to those treaties and declarations under Article 253
of the Constitution of India.]
BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1.
Short title, extent and commencement. - (1) This Act may be called the
HIV/AIDS Act, 2004.
(2) It extends to the whole of India
[(3) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and
any reference in any such provision to the commencement of this Act shall be construed
as a reference to the coming into force of that provision.]
2.
Definitions. - In this Act, unless the context otherwise requires, -
(a) “capacity to consent” means an individual’s ability, determined on an objective
basis [keeping in mind factors of...] irrespective of an individual’s age, to understand and
appreciate the nature and consequences of a proposed health care service, treatment, or
procedure or research, or of a proposed disclosure of confidential HIV related
information, and to make an informed decision concerning the service, treatment,
procedure or disclosure.
(b) "discrimination" means and includes any act or omission including a policy, law,
rule, practice, condition or situation which directly or indirectly:
(i)
imposes burdens, obligations, liabilities, disabilities or disadvantages on,
/ (ii) withholds benefits, opportunities or advantages, from,
any person based on one or more HIV related grounds
Explanation: HIV related Grounds are:
(i)
HIV status, actual or perceived; or
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(ii)
actual or perceived association with an HIV positive person; or
(iii)
actual or perceived risk of exposure to HIV infection; or
any other ground where discrimination based on that ground - (1) causes or perpetuates
or has a tendency to perpetuate systemic disadvantage in respect of a category of persons,
(2) undermines human dignity or (3) adversely affects the equal enjoyment of a protected
person’s rights and freedoms [in relation to HIV/AIDS.]
[(c) "health care provider” means an individual who’s vocation or profession is (a)
directly or indirectly related to the maintenance of the health of another individual and (b)
whose duties require a specified amount of formal education and may require a special
certification or license or membership in a regional or national organisation including any
physician, nurse, paramedic, psychologist, counsellor or other person providing medical,
nursing, psychological, or other health care services of any kind.]
(d)
"HIV-related information” means any information concerning the undertaking,
performing and/ or result of an HIV test, including the HIV or HIV antibody status or any
other [private/ personal] information concerning another person, collected, received,
accessed and/or recorded in connection witii an HIV test, HIV related treatmem or HIV
related research or which may identify the person? or any information relating or
connected thereto or any other [private/ personal] information collected, received,
accessed and/or recorded in connection with the HIV status of an individual ].
(e)
"HIV Test” means a test to determine the presence of the antibody or antigen of
HIV, or of HIV infection.
(f)
"informed Consent” means consent given without any force, fraud or threat,
obtained after disclosing to the person concerned adequate information including risks
and benefits of, and alternatives to, the proposed intervention in a language and manner
understood by the person, [specific to the proposed intervention]
(g)
"protected person” means a person who is:
(i)
HIV-r; and/or
(ii)
Actually, or perceived to be, associated with an HIV positive person; and/or
(iii)
Actually, or perceived to be, at risk of exposure to HIV infection.
(iv)
Actually or perceived to be a member of a group actually or perceived to be
vulnerable to HIV/AIDS.
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(h)
“reasonable accommodation" means any modification of or adjustment to the job
or working environment that will enable the qualified applicant or employee to
participate in the job application process, to perform the essential functions of the job or
to enjoy benefit and privileges of employment equal to those enjoyed by other
employees.
[(i) “significant risk" means:
(i)
the presence of a significant risk body substance; and
(ii)
a circumstance which constitutes significant risk for transmitting or
contracting HIV infection; and
the presence of an infectious source and a non-infected person.
(iii)
Explanation 1: "Significant risk body substances” are blood, semen, vaginal
secretions, breast milk, tissue and the following body fluids: cerebrospinal, amniotic,
peritoneal, synovial, pericardial and pleural.
Explanation 2: “Circumstances which constitute significant risk of transmitting or
contracting HIV infection” are:
i)
sexual intercourse (e.g. vaginal, anal, oral) which exposes a non-infected
individual to blood, semen or vaginal secretions of an infected individual;
ii)
sharing of needles and other paraphernalia used for preparing and injecting
drugs between infected and non-infected individuals;
iii)
the gestation, birthing or beast feeding of an infant when the mother is
infected with HIV;
iv)
transfusion or transplantation of blood, organs or other tissues from an
infected individual to an uninfected individual, provided such blood,
organs or other tissues have not tested conclusively (negatively) for
antibody or antigen and have not been rendered non-infective by heat or
chemical treatment;
v)
other circumstances not identified above during which a significant risk
body substance (other than breast milk) of an infected individual contacts
or may contact mucous membranes (e.g. eyes, nose, mouth), non-intact
skin (e.g. open wound, skin with a dermatitis condition, abraded areas) or
the vascular system of a non-infected person. Such circumstances include
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but are not limited to needlestick or puncture wound injuries and direct
saturation or permeation of these body surfaces by the infectious body
substance.
Provided that “significant risk-’ shall not include:
(i)
exposure to urine, faeces, sputum, nasal secretions, saliva, sweat, tears or
vomit that does not contain blood that is visible to the naked eye;
(ii)
human bites where there is no direct blood to blood, or blood to mucous
membrane contact;
(iii)
exposure of intact skin to blood or any other blood substance;
(iv)
occupational settings where individuals use scientifically accepted barrier
techniques and preventive practices in circumstances which would otherwise
pose a significant risk and such barriers are not breached and remain intact.]
Other possible definitions:
1 Adolescence
i
AIDS Related Complex
Adoption Agency
AIDS
Cd4 Test
Child [Minor/Major]
Company
Indian Company
Contact
! Contact Tracing
1
Counselling
Confidentiality
Counsellor
Consent
Court
’ Donor
Drug Use Paraphernalia
Enterprise
] person
Pre/Post-Test Counselling
Establishment
Guardian
Health Condition
Healthcare Services/system
■ Healthcare Institution
HIV/Status/Test/Infection
HIV Related Illness
Institution
Informed/written Consent
Media
Medical Waste
Opportunistic Infection
Partner
Pathology Laboratory
Person/ Protected Person
Personal Information
Post Exposure Prophylaxis
Privacy
Property
Quacks/Quackery
Reasonable Acco.
Registration Of Marriages
Safe Sex Information
Screening
Sentinel Testing
Sexual Intercourse
Sex Work
Significant Risk
STD
Undue Hardship
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Undertaking
Universal Precautions
Vaccine
Viral Load Test
VCTC
Window Period
3.
General Declaration of' Principles and Interpretation. - [Constitution of
India/India’s Commitments to International ConventiOns/Gender and rights of
protected persons.]
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CHAPTER II
PROTECTION, PROMOTION AND RECOGNITION OF CERTAIN RIGHTS
4.
Right to Equality. - No person shall be subject to unfair discrimination in any
form by the State or any other person.
5.
Right to Privacy. - Every person has the right to privacy.
6.
Right to Health. - (I) Eveiy person has the right to enjoy the highest attainable
standard of physical and mental health.
[(2) Every [protected] person has the right to equal access to treatment.)
7.
Right to Safe Working Environment. - Every person has the right to a safe
working environment
8.
Right to Information. - Every person has the right to accurate, scientific and
evidence-based information and education relating to health and the protection of health.
9.
Right to Marry and found a family. - Every person of marriageable age has the
right to marry and to found a family.
10.
Right to autonomy. Every person has the right to bodily and psychological
integrity including the right not to be subject to medical treatment, interventions or
research without her/his informed consent.
[11. Right to Work. - Every [protected] person has the right to work, which includes
the right of everyone to the opportunity to gain his living by work, which he freely
chooses or accepts.)
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Chapter III
Prohibition of Unfair Discrimination
12.
Prohibition of Unfair Discrimination. - (1) No person shall be subject to unfair
discrimination in any form by the State or any other person.
[Explanation: Discrimination based on rational and objectively determinable criteria
intrinsic to the activity concerned or for a legitimate purpose, shall not be considered
unfair discrimination.]
(2)
For the purposes of Section 12, unfair discrimination against a person includes:
(a)
Denial of, unfair treatment in or dismissal from employment;
Provided that a person, who is otherwise qualified shall not be terminated from, or
denied, employment unless:
(i)
s/he poses a significant risk of transmission of HIV to other persons in the
workplace, or
(ii)
s/he has been assessed as unfit to fulfill the duties of the job; and
(iii)
in the case of termination, the employer is unable to provide reasonable
accommodation due to undue administrative or financial hardship and
along with the letter of termination, provides a written statement to the
person stating the nature and extent of such hardship.
Provided further that if the employer fails to provide the written statement of undue
hardship it will be presumed that there is no such hardship.
Provided further that any question arising as to the fitness of a person shall be
determined by an independent and qualified healthcare provider.
Explanation: For the purposes of this clause ‘unfair treatment’ includes but is not
limited to denial of terms and conditions or benefits and privileges of services that other
persons in the same position would enjoy including provident fund, gratuity and health
insurance, non-renewal of employment contract, pressure to leave the employment.
insistence for resignation/VRS, being asked not to report for duty, denial of promotions,
arbitrary suspension or disciplinary action, creation of a non-conducive atmosphere for
work, prejudicial comments and behaviour, public identification, mandatory isolation or
segregation.
(b)
Denial of. unfair treatment in or discontinuation of, health care services;
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Explanation: For the purposes of this clause ‘unfair treatment’ includes but is not
limited to providing medically inappropriate treatment for the condition diagnosed,
untimely or arbitrary discharge, charging higher rates for the same or similar services
provided to another person at any stage (conditional treatment), [imposing conditions in
the form of research], prejudicial comments and behaviour, public identification,
isolation or segregation unless medically indicated, pressure to leave the healthcare
institution, and undignified treatment of a corpse
(c)
Denial of, unfair treatment in or discontinuation of educational services;
{Provided that a person shall not be discontinued from, or denied, educational
services unless:
(i)
s/he poses a significant risk of transmission of HIV to other persons in the
educational institution, or
(ii)
s/he has been assessed as unfit to fulfill the requirements.of the course .or
programme; and
(iii)
in the case "of discontinuation, the "educational institution'isHinable to
provide reasonable accommodation due to undue administrative or
financial hardship and along with the letter of termination, provides a
written statement to the person stating the nature and extent of such
hardship.
Provided further that if the educational institution fails to provide the written
statement of undue hardship it will be presumed that there is no such hardship.
Provided further that any question arising as to the fitness of a person shall be
determined by an independent qualified healthcare provider.]
Explanation: For the purposes of this clause ‘unfair treatment’ includes but is not
limited to arbitrary' suspension by or disciplinary action from an educational institution,
prejudicial comments and behaviour, public identification, isolation or segregation unless
medically indicated . denial of participation in benefits or services or pressure to leave an
educational institution.
(d)
Denial of, unfair treatment in, or restrictions on the access to, or provision or
enjoyment or use of any goods, service, facility, benefit, privilege or opportunity
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customarily available to other persons in the public domain, including [possible
additions'.
(i)
Denial of or restrictions on the right ofmovement;
(ii)
Denial of the right-to. reside, purch^e^reht-ior/otherwiseioccupy-.-any
property,--[Pressure-to sell or'getioutj;
(iii)
Denial of the opportunity :tostahdtfor%r?hbldipublic:Or-.private:'bffice;
(iv)
Unfair treatment of protected persohsimthelcustody of-'a Sfate'/publicor
private institution (Prisons, Juvenile homes,"Rehab Centres,-Mental
homes, Adoption homes, Hospices,-NGOs, Night shelters);
(v)
Denial of access to^removaLfromiOnunfair-treatment .in-a-State/publicior
private institution^whosetcare and/dr-custodya protected-persommay be
(Prisons, Juvenile homes, Rehab-Centers’Mental homes,•Adbptidh&drries,
Hospices,'NGOs,’Nightshelters);
(vi)
any disability, liability,>restrictibniofxbndition-with regard tb'-
Access to shops, public restaurants, hotels and places of public
a)
entertainment or
The use of wells, tanks, bathing ghats, roads and places of public
b)
resort or
Any other accommodation,-service or facility dedicated to the use
c)
of the general public or customarily available to the public,
whether or not for a fee, including but not limited, to (ADA
categories) [including denial of burial or funeral ceremonies and/or
services]; and
(vii)
denial of or unfair treatment in insurance coverage/superannuation
benefits
Provided that denial of insurance coverage shall include non renewal,
termination,
Provided further that unfair treatment in-insurance
coverage/superannuation benefits-'-shallnotibe-considered- discrimination if
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it is based on actuarial studies that-supporttsuch/treatment reasonable
discrimination?]
Explanation: unfair treatment in insurance coverage shall-include but not
be limited to higher premiums, AIDS-caps,-delay in processing of claims,
denial of claims, HIV/AIDS exclusion-clauses, exclusion.'clauses based^on
actual or perceived association -with an -HIV+ person-orof exposure to
HIV]
(e)
Isolation or segregation;
(f)
Mandatory testing as a pre-requisite, for obtaining employment, or accessing
healthcare services or education or, for the continuation of the same or, for
[accessing/using] any other service or facility;
(g)
Any threat, coercion, undue influence, fraud or imposition of conditions or
liability or any other behaviour that compels or forces a person to adopt a particular
course of action or that results in denial of or inability to access services.
(3)
Nothing in this Act shall prevent the State or any other person from taking
measures for the protection, benefit or advancement of protected persons.
13.
Prohibition of Hate and Discriminatory Propaganda. - (1) No person shall,
based on one or more [HIV related grounds] publish, propagate, advocate or
communicate by words, either spoken or written, or by signs or by visible representations
or otherwise against any other person (or group or category of persons, in general or
specifically) anything that could reasonably be construed to demonstrate a clear intention
to:
(a)
be hurtful
(b)
be harmful or to incite '".arm
(c)
promote or propagate hatred
(d)
be likely to expose protected persons to hatred or contempt
(2)
No person may
(a)
disseminate or broadcast any information
(b)
publish or display any-advertisement or notice
that could reasonably be construed or reasonably be understood to demonstrate a clear
intention to unfairly discriminate against any person or [incite harm or physical violence].
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CHAPTER. IV
CONSENT
14.
Right to autonomy. (1) Every person has the right to bodily and psychological
integrity including the right not to be subject to medical treatment, interventions or
research without her.Tiis informed consent.
15.
Informed Consent for HIV testing, treatment and research. (1) No HIV test,
HIV related treatment or HIV related research of a person shall be undertaken or
performed except with informed consent [recorded] in writing of that person or her/his
representative in accordance with sub-Section (2) below.
(2)
The informed consent of a person’s representative may be taken [in writing]
instead of the person’s informed consent [in writing] only in the following circumstances:
(a)
where the person has died, from that person’s partner or relative or administrator
or executor;
(b)
where the person is under the age of 12 years, from that person’s parent or legal
or de facto guardian;
(c)
where the person is between the ages of 12 and [18] years and, in the written
opinion of the concerned healthcare provider, lacks the capacity to consent, from
that person’s parent or legal or de facto guardian;
(d)
where, in the written opinion of the concerned healthcare provider, the person
lacks the physical or mental capacity to consent, from that person’s partner, or
relative or legal or de facto guardian;
(e)
In an emergency situation, where the person is unconscious, or otherwise
unable to give consent, from that person's partner, or relative or legal or de facto
guardian:
(f)
In clauses (b) to (e) above, where a representative of the person is not available to
give informed consent in writing, or in clause (e) above, in the opinion of the
health care provider, is not acting in the best interest of the person, then the same
shall be taken from an [authorised representative of the concerned institution/
independent health care provider] [in accordance with the Regulations under this
Act.]
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[Within 30 days of the coming into force'-of:this?Acts;6nthe<establishmeht-’b'fiah
(g)
institution-whichever is later,-alldnstitutibns'iihvoIVed-ih'HI-V/testing^treatment-bf
research shall ensure -that -the : [treatrhent]-.<protbc6ls>;as^prescnbed.-vinMhe
Regulations are employed/used-by all-, persons working lii/employed- by .such
institution.]
Where a person or her/his representative is unable to give informed consent in
(3)
writing in accordance with this chapter, informed consent may be taken verbally from
that person and contemporaneous records of such'informed consent shall be entered into
records maintained in the regular course of business by the person taking the informed
consent.
(4)
For the purposes of this Chapter, informed consent for an HIV test shall not be
valid unless the person who is being tested is provided pre-test and post-test counselling
in accordance with the Regulations under this Act.
[Provided that where the person voluntarily chooses not to undergo pre-test and post
test counselling, it shall not invalidate the informed consent for an HIV test.] [should;this
be deleted ?/option of graded system - mandatory counselling for 5 years after which
voluntary?}
(5)
For the purposes of this Chapter, informed consent for HIV-related research shall
not be considered valid unless the potential research subject is adequately informed of the
aims, methods, sources of funding, any possible conflicts of interest, institutional
affiliations of the researcher, the anticipated benefits and potential risks of the study, the
discomfort it may entail and the right to abstain from participation in the research or to
withdraw consent to participate in the research at any time.
(6)
Informed consent is not required in the following situations:
(a)
when an HIV test is ordered by a court; Provided that no court shall order an HIV
test to be carried out either as pan of a medical examination or otherwise, unless the
court:
(i) is satisfied that the carrying out of the HIV test is necessary for the
determination of the issues in the cause or matter and in the interests of justice;
and
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(ii) ensures that pre-test and post-test counselling is available for the person being
tested and that confidentiality of HIV status of the person being tested is
maintained
(b)
when HIV testing without informed consent is authorised by any other law for the
time being in force;
Provided that no person shall direct the undertaking of an HIV test either as part of a
medical examination or otherwise without ensuring that pre-test and post-test counselling
is available for the person being tested and that confidentiality of HIV status of the
person being tested is maintained.
[Provided further that no HIV test shall be carried out by a person either as part of a
medical examination or otherwise, whether under direction of the police investigating an
offence or under the orders of a Court, or any person, without ensuring that pre-test and
post-test counselling is provided to the person being tested and confidentiality of HIV
status of the person being tested is maintained.]
(c)
for HIV testing related to procuring, processing, distribution or use of a human
body or any part there of, including organs, tissues, blood, semen or other body fluids for
use in medical research or therapy or for transplantation, transfusion to, or artificial
insemination of persons;
Provided that if the test results are communicated to a donor, post-test counselling
shall be provided to her/him and confidentiality of her/his HIV status shall be maintained
in accordance with the provisions of this Act and the Regulations prescribed thereunder.
(d)
for epidemiological surveillance/surveillance purposes where the HIV test is
anonymous and unlinked and does not determine the HIV status of the person;
Provided that at the time of HIV testing of blood, persons will be informed by general
notice, that their blood unit may be tested for epidemiological surveillance/surveillance
purposes in accordance with Regulations under this Act.
16.
HIV Testing. (1) Notwithstanding any law for the time being in force, no
person shall be subject to an HIV test except in accordance with the provisions of this
Act.
(2)
[Subject to Section 15], no HIV test may be recommended or performed except:
(a)
for the voluntary determination of the HIV status of a person; or
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(b)
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if it is medically necessary/indicated for the appropriate treatment or care and in
the interest of the person being tested
(3)
No person shall perform an HIV test unless that person is: [regulations for each?]
(a)
a licensed/registered^) VCTC; or
(b)
a licensed/regisrerec/ pathology laboratory, either independent or attached to a
healthcare institution or is a healthcare provider licensed to provide pathology
services; or
(c)
a licensed/registered blood bank] [Do we need this here?]
(4)
[A person who [wants] to get an HIV test done and who wishes to remain
anonymous shall have the right to do so, and to provide informed consent [in writing] by
using a coded system that does not link her/his individual identity with the request or
result of the HIV test.]
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CHAPTER V
DISCLOSURE OF INFORMATION
17.
Right to Privacy. Every person has the right to privacy.
18.
[Disclosure of Information!. (1) No person shall be compelled to disclose HIV-
related information or any other private/personal information concerning themselves
except:
(a)
when a court determines by an order that the disclosure of such information is in
the interest of justice and necessary for determination of issues in a cause or matter;
or
(b)
if such disclosure is required by any law for the time being in force]
(2) No person shall disclose or be compelled to disclose HIV related information
and/or [private/personal] information of another person, imparted in confidence in a
relationship of [fiduciary nature], except in the following circumstances, viz.:
(a) with the written informed consent of that person;
(b) with the written informed consent of a representative of the person in accordance
with Section 15;
(c)
in case the disclosure is being made by a health care provider to another health
care provider who is [ directly ] involved in the treatment or counselling of a person,
when such disclosure is necessary to provide appropriate care or treatment in the best
interest of that person;
(d)
by an order of a court when it is satisfied that the disclosure of such information is
necessary for the determination of issues and in the interest of justice in a cause or matter;
(e)
[if such disclosure is required by any law for the time being in force] [protocols
for this?];
(f)
when written informed consent is not given, disclosure of HIV- positive status
may be made:
(i) by a health care provider to another person being a partner/ [contact] of that
person to protect the partner/ [contact] when:
- the health care provider bona fide and reasonably believes that the partner/
[contact] is at significant risk of being infected; and
- the HIV positive person has been counselled to inform her/ his partner; and
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the health care provider [bona fide believes]/ satisfied that the HIV
positive person will not inform her/ his partner; and
the health care provider has informed the HIV- positive person of her/ his
intention to disclose the HIV-positive status to the partner/ [contact];
Provided that such disclosure to a partner/ [contact] shall be made in person and
with appropriate counselling or referrals for counselling as provided in Section
(....) [of the chapter on Consent];
(ii) [by an authorised person in an adoption iagehey of a child in its care and
custody, may be made to prospective adoptive parents, by an adoption agency, for
the proper care and in the best interests of'the child]?;
(g)
[in any other case, when'Tcbuft'defeimhneMh^suElrdisclosure is fequifedfiirthe
public interest, and that such public iriteresUdySmdes •’•the'publfci interest’-in
maintaining confidentiality/mon-disclosure.]
(3)
Any person to whom disclosure under sub-Sections (1) or (2) is made is
prohibited from making further disclosure except as provided in this Chapter.
(4)
Sub-Section (3) does not prevent a person from disclosing statistical or other
information of a person that could not reasonably be expected to lead to the identification
of that person
Provided that the person to whom such disclosure is made shall not use such
information to identify the person to whom it pertains or present it in a manner whereby
such identification is possible.
19.
Duty to Inform. (I) [ Every person who is HIV-positive, is aware of such status
and, has been counselled in accordance with this Act or is aware of the nature of HIV and
how it is transmitted, has a duty to inform his sexual or needle-sharing partner of such
status and the risk of transmission ].
[when to inform?]; [what is the consequence of not informing?]; [Surgeon patient issue?] [other contact ?]
(2) [Every person who is HIV+ and is aware of such status and proposes to adopt or
take in guardianship, a child, has a duty to inform the adoption agency from which such
child is being adopted or taken of such status.]
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19
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29.1.04
. r
20.
f
Data Protection. (1) Every institution that records and/or stores HIV related
information of a person shall, within 360 days of the coming into force of this Act,
formulate and implement data protection measures as prescribed by Regulations under
this Act, to ensure that such information is protected from [unauthorised] disclosure.
(2) [Such measures shall include procedures for protecting information from
disclosure, access in exceptional circumstances, provisions for security systems to protect
the information stored in any form and mechanisms to ensure staff accountability and
liability.!
21.
[Prohibition on publication.] [No person shall print or publish the name or any
matter, information which may make identify a person as being HIV-positive without the
written informed consent of that person.] [media restrictions?]
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29.1.04
CHAPTER 17
RIGHT OF ACCESS TO TESTING, TREATMENT [AND COUNSELLING!
22.
Right to Health. Every person has the right to enjoy the highest attainable
standard of physical and mental health.
23.
State to provide healthcare/duty of the State. (1) The State shall respect,
protect and fulfill the right to the highest attainable standard of physical and mental
health of all persons.
(2) Without prejudice to the generality of the aforementioned clause, the State shall
provide:
(a)
comprehensive HIV prevention and care information;
(b)
universal availability of quality HIV prevention measures and services;
(c)
quality voluntary testing and counselling services and centres in accordance with
the Regulations under this Act;
(d)
affordable and accessible healthcare;
(e)
equal access to treatment for HIV/AIDS for all persons; and
(f)
access to treatment for HIV/AIDS free of cost.
Explanation 1: For the purposes of this chapter ‘treatment’ includes quality health
facilities, goods, services and information for preventive, curative and palliative care of
HIV/AIDS and related opportunistic infections and conditions’ including quality
counselling, the effective and monitored use of medicines for opportunistic infections,
post exposure prophylaxis for healthcare providers and victims of sex crimes, anti
retroviral therapy, nutritional supplements, prevention of mother-to-child transmission,
infant milk substitutes and other safe and effective medicines, diagnostics and related
technolog’as, [in accordance with WHO essential medicines list.]
24.
Prescription of HIV-related treatment. - Nobody shall prescribe or administer
HIV-related treatment and in particular anti-retroviral therapy except in accordance with
the treatment protocols as prescribed in the Regulations.
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21
29.1.04
25.
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Voluntary Counselling and Testing Facilities. - The State shall establish
voluntary testing and counselling facilities in every district in the country in accordance
with the Regulations under this Act.
26.
Measures to be taken by State. - For the purposes of this Chapter, the State
shall take effective legislative, administrative and fiscal measures including:
(a) training and capacity building of healthcare providers to provide quality treatment
with appropriate counselling for prescribing and monitoring the use of medications,
diagnostics and related technologies;
(b) ensuring that all other laws are in consonance with the provisions of this Chapter
and in particular that the right to health is not in any manner restricted or compromised
on account of protection of intellectual property rights;
(c)
introducing tax incentives and excise exemptions on HIV-related treatment in
order to promote its affordability, accessibility and availability;
(d)
ensuring that the pricing of medication pursuant to any statute, regulation or order
is done in a transparent, accountable manner open to public scrutiny that promotes its
affordability, accessibility and availability;
(e)
ensuring that incentives to encourage investment in research and development are
provided to entities, particularly those run by the state to develop, manufacture, market
and distribute affordable and accessible preventive, curative and palliative care.
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22
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29.1.04
CHAPTER VII
RIGHT TO SAFE WORKING ENVIRONMENT
27.
Right to Safe Working Environment. (1) Every person lias the right to a
safe working environment.
(2) Every healthcare institution and every institution where there is a significant risk
of |occupational?| exposure to HIV, shall provide free of cost:
(a) universal precautions to all its employees [persons working there/intems] and
appropriate training for the use of such universal precautions:
(b) post exposure prophylaxis to any of its employees who may be occupationally
exposed to HIV, with appropriate counselling services;
(c)
[HIV-related
treatment
[and
appropriate
compensation]
to
those
employees/persons working in the institution who are acquire HIV infection through
occupational exposure; and
(d)
healthcare insurance for all its employees/persons working within the institution
including for HIV.
Explanation: Every healthcare institution shall within ob days of the notification of
this Act ensure that the Universal Precautions protocols as prescribed in the Regulations
are employed/used in the institution and inform all its employees/persons working in the
institution of the details of availability of post exposure prophylaxis in the healthcare
institution.
(4)
Every healthcare worker shall employ/use Universal Precautions in accordance
with the Regulations in the care and treatment of all persons in the course of their work.
[Amendment of Bio-medical Waste (Management and Handling) Rules, 1998]
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23
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29.1.04
CHAPTER VIII
PROMOTION OF STRATEGIES FOR REDUCTION OF RISK
28.
Strategies for Reduction of Risk. - (1) Notwithstanding anything contained in
any other law for the time being in force,
(a) the implementation or use of any strategy for reducing risk of HIV transmission
shall not, in any manner, be prohibited, impeded, restricted or prevented; and
(b) the possession of any tool or paraphernalia for reduction of risk of HIV
transmission or any act pursuant thereto shall not amount to a criminal offence or
attract civil liability.
Explanation: Strategies for reducing risk of HIV transmission means promoting actions
or practices that minimise a person’s risk of exposure to HIV and/or mitigate the adverse
impacts related to HIV/AIDS and through:
(i)
the provision of information, education and counselling services relating to HIV
prevention and safe practices that do not promote gender and sexual stereotypes and
are age-appropriate, non-stigmatising, non-discriminatory, scientific and evidence
based:
(ii)
the provision and/or the use of safe sex tools, including condoms, lubricants,
female-controlled barrier methods, and safe drug use paraphernalia, including clean
needles, syringes, bleach and other appropriate sterilising equipment accompanied by
adequate information on their correct use; and
(iii)
drug substitution and needle exchange programmes in accordance with sub
Section 2
Illustrations
A, supplies condoms to 5, a sex worker or to C, a client of B. Neither A. nor B, nor C
can be held criminally or civilly liable for such actions or be prohibited, impeded,
restricted or prevented from implementing or using the intervention.
/W, an intervention project on HIV/AIDS and sexual health information, education
and counselling for men who have sex with men provides safer sex information, material
and condoms to N, a man who has sex with other men. Neither M nor N can be held
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24
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29.1.04
criminally or civilly liable for such actions or be prohibited, impeded, restricted or
prevented from implementing or using the intervention.
X, an intervention providing registered NEP services to injecting drug users, supplies
a clean syringe/needle to K, an injecting drug user who exchanges the same for a used
needle/syringe. Neither X nor Y can be held criminally or civilly liable for such actions or
be prohibited, impeded, restricted or prevented from implementing or using the
intervention.
(2) No person shall implement a drug substitution or needle exchange programme
unless that person is [registered/certified/licensed/permit] with [NHC/SHC] and such
programmes are implemented in accordance with the Regulations under this Act.
(3) No law enforcement official/public servant shall arrest or detain, or in any manner
harass, impede, restrict or otherwise prevent any person implementing or using strategies
for reduction of risk of HIV transmission in accordance with the provisions of this Act.
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25
29.1.04
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CHAPTER. IX
PROHIBITION OF QUACKERY
29.
Prohibition of Quackery. (1) No person shall manufacture, market, distribute,
provide, prescribe (practice?) or sell any substance service/ therapy to cure [prevent] or
alleviate medical conditions associated with HIV/AIDS or claim such cure [prevention]
or alleviation unless:
(a)
the substance/ service has been tested and/or approved/authorised by the Indian
Council of Medical Research, DCGI, (and the NHC) to have such effect; and
(b)
the person is qualified and licensed/registered to manufacture, market, advertise,
distribute, provide, prescribe or sell the substance/ service/therapy under law.
(2)
The State shall take active measures through law reform and strict enforcement
mechanisms to make those indulging in quackery accountable for violation of laws.
[Regulations for home test kits?]
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29.1.04
CHAPTER X
SOCIAL SECURITY
30.
Social Security Scheme. (1) The State shall by notification [within 360 days of
the notification of this Act] frame/implement a health insurance/social security scheme to
address inter alia HIV/AIDS and related illnesses/that mitigate the social and economic
impact of HIV/AIDS and related illnesses/for protected persons/children/HIV-positive
persons/healthcare workers/older persons.
[Health insurance to be made available to HIV-positive'persons.]
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27
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29.1.04
CHAPTER XI
INFORMATION, EDUCATION AND COMMUNICATION
31.
Right to Information. (1) Every person has the right to accurate, scientific and
evidence-based information and education relating to health and the protection of health
from the State.
(2)
No person shall be denied access to and availability of HIV/AIDS Information,
Education and Communication programmes, including sexual health and drug use related
information by the State or any other person.
Provided, that the person is qualified (capacity) and expenses
Provided that where the person is below the age of 12 years, and in the opinion of the
provider of information, is incapable of understanding the nature of the sexual health and
[reproductive health] and drug use related information, the provider may require the
presence of an adult person of the child’s choice (coercive relationships) before providing
such information in the best interests of the child. [protocoLfor counselling-—Avhen info
to children to determine when counselling is.required]
[32. Obligation on every institution to have and communicate an IEC
programme]
33.
Responsibility of State to promote HIV Information, Education and
Communication. (1) The State, [whose responsibility? Joint?] in consultation with the
National HIV/AIDS Commission and State HIV/AIDS Commissions, protected persons
and persons working in the field of HIV/AIDS, shall,
(a)
formulate, institute and implement sustained multi-lingual, easily understood,
national, state and local Information, Education and Communication programmes relating
to HIV/AIDS which are accessible and available to all persons,
(i)
based on experiential and evidence-based research and studies and scientific
and accurate information, and
(ii) in a manner that does not promote gender and sexual stereotypes and is age-
appropriate, gender-sensitive, non-stigmatising and non-discriminatory,
(b)
be responsible for developing and conducting a multi-lingual national programme
of public education and information designed to promote an understanding and
acceptance of this Act; and
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28
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(c)
make special efforts to ensure the mobilisation and
29.1.04
participation of various
members of the community, to provide information and education on HIV/AIDS at all
levels throughout the country.
(2)
Without prejudice to the generality of the aforementioned clauses, the State shall
make special efforts to ensure:
(a)
that women of all ages have access to accurate and comprehensive HIV/AIDS
Information, Education and Communication programmes focussing on their needs;
(b)
the right of every child and adolescent to access adequate and accurate sexual
health information and education, including Information, Education and Communication
Programmes related to HIV/AIDS prevention and care;
(c)
that all teachers and instructors of HIV/AIDS courses shall be required to undergo
annual training on HIV/AIDS prevention, care and treatment and sexual and reproductive
health information in accordance with Regulations prescribed by the National HIV/AIDS
Commission and State HIV/AIDS Commissions;
(d)
that all boards of education shall, within 180 days of the coming into force of this
Act, formulate and institute curriculum for HIV/AIDS education in accordance with the
provisions of this Chapter and the Regulations under this Act;
(e)
that, within 180 days of the coming into force of this Act, all curricula related to
medical, health, state service, legal and social work education, incorporate HIV/AIDS
education in accordance with the provisions of this Chapter, particularly in relation to
HIV/AIDS, gender and sexuality, counselling and legal rights;
(f)
that all State and private employers in the formal and informal employment sector,
[including members of the Armed Forces] shall provide their employees with the
minimum
information
and
instruction
on
HIV/AIDS,
particularly
relating
to
confidentiality in the workplace and attitude towards infected employees;]
(g)
that appropriate information on HIV/AIDS is attached to or provided with every
prophylactic offered for sale, sold or supplied in any other manner to any person in
English, Hindi, the respective regional language of the State where the same is supplied
and by pictorial representation and containing literature on the proper use of the
prophylactic device or agent, it’s efficiency against HIV and sexually transmitted
infection, and the importance of adopting safer sexual practices;
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29
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29.1.04
(h)
that informational aids or materials on the cause, modes of transmission,
prevention and consequences of HIV infection are adequately provided at all travel points
including international ports of entry and exits, domestic airports, train stations, bus
stations and other travel centres;
(i)
that all overseas Indian workers and diplomatic military, trade and labour officials
and personnel to be assigned overseas undergo training HIV/AIDS, particularly the
cause, prevention, consequences, treatment of HIV/AIDS before certification for overseas
assignment.
34.
HIV/AIDS Information as a Health Service. (1) HIV/AIDS education and
information dissemination shall form part of the delivery of health services by healthcare
workers.
(2)
It shall be the duty of all healthcare providers to make available to the public such
information necessary to control the spread of HIV/AIDS and to correct common
misconception about this disease.
(3)
Every healthcare institution shall enhance the knowledge and capabilities of all
healthcare workers working or employed by it to include skills for proper information
dissemination and education on HIV/AIDS. The training of health workers shall include
discussion on HIV related ethical issues such as confidentiality informed consent and the
duty to provide treatment.
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30
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29.1.04
CHAPTER XII
APPOINTMENT OF HEALTH OMBUDSPERSONS
35.
Appointment of Health Ombudsperson. - (1) The Central Government shall
appoint by notification in the Official Gazette, one or more Health Ombudspersons for
each [ ] of the Union Territories for the purposes of this Act, within 90 days of the
coming into force of this Act.
(2) Every State Government shall appoint, by notification in the Official Gazette, one
Health Ombudsperson for each district of the State for the purposes of this Act, within 90
days of the coming into force of this Act.
(3)
The Officers appointed as Health Ombudspersons under sub-section (I) or sub
section (2) shall be,(a)
when appointed for the whole of a Union Territory, of or above the rank of the Joint
Director of Health and Family Welfare; and
(b)
when appointed for each district of the State, of or above the rank of the Officer
responsible for Health for such district.
36.
Functions of Health Ombudsperson. - (1) The Health Ombudsperson shall
inquire, suo motu, on the request of the appropriate government or its agencies or any
court or on a petition presented to it by a protected person or any person on her/his behalf
or any organisation representing or working with protected persons, into complaints or
instances of violations and breaches of the provisions of this Act or the rules or the
regulations made thereunder by a healthcare institution or a healthcare provider in her/his
jurisdiction [including in relation to delivery of healthcare services, access to treatment
and the use and provision of universal precautions.)
(2) The Health Ombudsperson shall settle/decide a complaint promptly and in any
case within seven working days.
Provided that where the complaint relates to discrimination in the provision of or
access to health care services [or provision of universal precautions], the Health
Ombudsperson shall pass orders/settle the complaint within one day.
(3)
All proceedings before the Health Ombudsperson shall be summary.
(4)
The Health Ombudsperson shall pass reasoned orders.
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31
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29.1.04
(5)
The Health Ombudsperson shall maintain records in accordance with the
Regulations.
(6)
The Health Ombudsperson shall be deemed to be public servant within the
meaning of Section 21 of the Indian Penal Code, 1860.
(7)
The Health Ombudsperson may appoint such number of persons as necessary to
assist in her/his functioning and may delegate such of her/his functions in relation to the
investigation of a complaint under sub-Section (1) to such persons.
37.
Powers of Health Ombudsperson. - (1) The Health Ombudsperson shall, while
inquiring into complaints under this Act, have all the powers of a civil court under the
Code of Civil Procedure, 1908 in respect of the following matters, namely:
(a)
summoning and enforcing the attendance of witnesses and examine them on oath;
(b)
discovery and production of any document;
(c)
receiving evidence on affidavits;
(d)
requisitioning any public record or copy thereof from any court or office;
(e)
issuing commissions for the examination of witnesses or documents;
(f)
any other matter which may be prescribed.
[Power to investigate?]
(2) The Health Ombudsperson shall have power to require any person, subject to any
privilege which may be claimed by that person under any law for the time being in force,
to furnish information on such points or matters as, in the opinion of the Health
Ombudsperson, may be useful for, or relevant to, the subject matter of the inquiry and
any person so required shall be deemed to be legally bound to furnish such information
within the meaning of section 176 and section 177 of the Indian Penal Code.
[(3) The Health Ombudsperson or any other officer, not below the rank of a Gazetted
Officer, specially authorised in this behalf by the Health Ombudsperson may enter any
building or place where the Health Ombudsperson has reason to believe that any
document relating to the subject -matter of the inquiry may be found, and may seize any
such document or take extracts or copies therefrom subject to the provisions of section
100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.]
(4)
The Health Ombudsperson shall have the power to -
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32
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(a)
29.1.04
pass orders in an emergent situation without hearing including directing
admissions, operations, treatment, etc as may be appropriate
Provided that the Health Ombudsperson shall, as soon as may be after the passing of
such orders, conduct/give an opportunity to both parties to be heard and pass appropriate
orders;
(b)
pass orders for the withdrawal and rectification of the breach complained of after
considering representations made by the parties to the complaint
and such orders shall be binding on the parties. (?]
[Effect of non compliance of-Health Ombudsperson Orders]
(5)
The Health Ombudsperson, may, subject to any Rules made in this behalf, make
such orders as to cost as it considers reasonable and any such order shall be executable as
a decree of a civil court. [?]
38.
Report to Government. - The Health Ombudsperson shall, every six months,
report to the Appropriate Government, the number and nature of complaints received by
her/him, the action taken and orders passed in relation to such complaints.
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33
29.1.04
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CHAPTER XIII
HIV/AIDS COMMISSIONS
39.
Establishment of HIV/AIDS Commissions. - (1) The Central Government
shall, on the notification of this Act, duly reconstitute in accordance with the provisions
of this Act and establish/notify the National AIDS Control Organisation as the National
HIV/AIDS Commission for the purposes of this Act.
(2) The Central Government for each Union Territory and the State Government for
each State, shall, on the notification of this Act, establish a Commission to be called the
"HIV/AIDS Commission” for the purposes of this Act.
Provided that in any State or Union Territory in which a State AIDS Control Society
exists, such society shall be the Commission for that State or Union Territory as the case
may be and shall be duly reconstituted to meet the requirements of this Act.
[Providedfurther that where District AIDS ■.Gontrbl-'Societies exist?]
(3)
The Commission shall be a body corporate with the name aforesaid having
perpetual succession and a common seal with power, subject to the provisions of this Act,
to acquire, hold and dispose of property' and to contract, and may. by the aforesaid name.
sue or be sued.
(4)
(a) The head office of the National HIV/AIDS Commission shall be at Delhi. The
National HIV/AIDS Commission may establish offices at other places in India.
(b)
The head office of State and Union Territory Commissions shall be at such places
as the Appropriate Government may decide. The State/Union Territory HIV/AIDS
Commission may establish offices at other places in the respective State/Union Territory.
40.
Constitution of Commissions. (1) The National HIV/AIDS Commission shall
comprisefa) a full-time Director, being a person with special knowledge or practical
experience in matters relating to HIV/AIDS or a person having knowledge and
experience in administering institutions dealing with the matters aforesaid, to be
nominated by the Nomination Committee:
(b)
such number of full time members, not exceeding five to be nominated by the
Central Government;
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34
29.1.04
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(c)
five persons, to be nominated by the Nomination-Committee, from amongst the
members of the State/Union Territory HIV/AIDS Commissions [or to be nominated from
State HIV/AIDS Commissions of States on a rotating basis for 1 year, alphabetical
order];
(d)
five persons to be nominated by the Advisory ^Committee, to represent the
interests of protected persons, healthcare providers, non-governmental organisations
working in the field of HIV/AIDS or any other interest which, in the opinion of the
Advisory Committee, ought to be represented; [corporate,'’PLHA^emirieritdegal-persbri]
(e)
a full time member-HIV/AIDS expert, being a person having special knowledge
or practical experience in respect of matters relating health, human rights and HIV,
nominated by the Advisory Committee;
(f)
a
full-time
member-secretary,
possessing qualifications,
knowledge and
experience of various aspects of [HIV/AIDS], to be made available by the Central
Government.
(2) The State/Union Territory HIV/AIDS Commission shall comprise (a)
a full-time Director, being a person having special knowledge or practical
experience in respect of matter relating to HIV/AIDS or a person having knowledge and
experience in administering institutions dealing with the matters aforesaid, to be
nominated by the State Government;
(b)
such number of full-time members, not exceeding five, to be nominated by the
State/Union Territory Government;
(c)
such number of members, not exceeding five, to be nominated by the State/Union
Territory Government from amongst the members of the local authorities functioning
within the State/ Union Territory;
(d)
such number of non-officials not exceeding five, to be nominated by the State
Government/ Union Territory to represent the interests of protected persons, healthcare
providers, NGOs working in the field of HIV/AIDS or any other interest which, in the
opinion of the State/Union Territory Government, ought to be represented [rotating -
yearly basis] [eminent legal person] [PLHA];
(e)
a full-time member-HIV/AIDS expert, being a person having special knowledge
or practical experience in respect of matters relating health, human rights and HIV;
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29.1.04
(0
a
full-time member-secretary, possessing qualifications,
knowledge
and
experience of various aspects of HIV/AIDS, to be appointed by the State Government/
Union Territory.
41.
Nomination Committee. - (1) The Nomination Committee shall, upon the
notification of this Act and subsequently to fill vacancies in the National HIV/AIDS
Commission, meet to consider, determine and nominate persons for the National
HIV/AIDS Commission as provided under Section () of this Act.
(2) The Nomination Committee shall comprise:
(a)
The Prime Minister
(b)
The leader of the Opposition
(c)
[other parties?]
(d)
[Two NGO representatives]
(e)
[PLHA]
42.
Advisory Committee. - (1) The National HIV/AIDS Commission shall be
advised by an Advisory Committee on matters relating to the enforcement of this Act, the
protection and promotion of rights of protected persons, the care, support and treatment
of persons who are HIV+ and the prevention and control of HIV/AIDS.
(2) The Advisory Committee shall comprise:
(a) The Prime Minister
(b) The leader of the Opposition
.
(c)
[other parties?]
(d)
The Minister of Health and Family Welfare
(e)
[Two NGO representative]
(f)
A representative of the Indian Council of Medical Research
(g)
A representative of healthcare workers
(h)
A representative of HIV-positive persons
(i)
[A representative of protected persons]
(j) A human rights activist
(k)
An epidemiologist.
(3) The Advisory Committee shall meet once every six months to carry out its
functions as provided under Section () of this Act.
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29.1.04
[Advisory Committee forStates?]
Meetings of Commission- (1) The Commission shall meet at such time and place
43.
and shall observe such rules of procedure in regard to the transaction of business at its
meetings (including the quorum at its meetings) [as may be prescribed.!
(2) The Director of the Commission shall preside at the meetings of the Commission
(3) If for any reason the Director is unable to attend any meeting of the Commission,
any member of the Commission chosen by the members present shall preside at the
meeting.
All questions which come before any meeting of the Commission shall be decided
(4)
by a majority of votes of the members of the Commission present and voting and in the
event of equality of votes, the Director of the Commission or in his absence, the person
presiding shall have and exercise a second or casting vote.
Every member who is in any way, whether directly, indirectly or personally,
(5)
concerned or interested in a matter to be decided at the meeting shall disclose the nature
of his concern or interest and after such disclosure, the member concerned or interested
shall not attend that meeting.
No act or proceeding of the Commission shall be invalid merely by reason of-
(6)
(a)
any vacancy in, or defect in the constitution of, the Commission; or
(b)
any defect in the appointment of a person acting as the Director or a member
of the Commission; or
(c)
any irregularity in the procedure of the Commission not affecting the merits of
the case.
44.
Committees. - (1) The Commission may appoint such committees as may be
necessary for the efficient discharge of its duties and performance of its functions under
this Act.
(2) The persons appointed as members of committee under sub-section (1) shall be
entitled to receive such allowances or fees for attending the meetings of the committee as
may be fixed by the Appropriate Government.
45.
Officers and other employees of Commission. - Subject to such control and
restriction as may be prescribed, the Commission may appoint such officers and other
employees as may be necessary for the efficient performance of its functions and the
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29.1.04
method of appointment, the salary and allowances and other conditions of service of such
other officers and employees of the Commission shall be such as may be prescribed.
46.
Director to be Chief Executive. - The Director shall be the Chief Executive of
the Commission and shall exercise such powers and perform such duties as may be
prescribed. [Security of tenure]
47.
Functions of Commission. - (1) It shall be the function of the Commission to:
(a) Prevent and control the spread of HIV;
(b) Promote and protect the rights of protected persons;
(c)
Provide care, support and treatment to those infected and affected by HIV/AIDS;
(d)
Reduce the vulnerability of individuals and communities to HIV/AIDS;
(e)
Promote awareness, information and education about HIV/AIDS; and
(f)
Alleviate the socio-economic and human impact of HIV/AIDS;
in India or the State or the Union Territory as the case may be and [in co-ordination with
the appropriate government] shall co-ordinate any such programmes undertaken by any
other persons or authorities on behalf of the Appropriate Government.
[Provided that the Commission may, for the purpose of discharging its duties or
performing its functions under this Act, enter into any memorandum or arrangement with
the prior approval of the Central Government, with any agency of any foreign country or
any international organisation.]
(2) In particular, and without prejudice to the generality of the foregoing provisions,
the National HIV/AIDS Commission for the whole or any pan of India, a Union Territory
HIV/AIDS Commission for the whole or any part of the Union territory and a State
HIV/AIDS Commission for the whole or any part of the State, shall (a) Institute and implement HIV related Programmes [in accordance with the
Schedule] and plan and organise the training of persons, engaged or to be engaged, in
HIV related programmes and strengthen programme management capabilities of the
Appropriate Government, municipal corporations, panchayat institutions and leading
NGOs participating in HIV related programmes.;
(b) Prepare and publish guidelines for the avoidance of acts or practices in violation
of this Act and as required by the provisions of this Act;
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(c)
29.1.04
Inquire, suo motu, on the request of the appropriate government or its agencies or
any court or in the case of an State/ Union Territory HIV/AIDS Commission on the
direction of the National HIV/AIDS Commission or on a petition presented to it by a
protected person or any person on her/his behalf, into complaints or instances of violation
of the provisions of this Act or abetment thereof or negligence in the prevention of such
violation, by any person in accordance with the Rules [Rules for inquiry and for direction
including time period, report 'to National HIV/AIDS Commission -power to give
directions to police];
(d)
institute or assist complainants in instituting and/or intervene in legal proceedings
involving any allegation of violation of rights of protected persons or of the provisions of
this Act in any court or challenge any order of a court or conduct investigations and make
recommendations as directed by the court regarding persistent violations of this Act or
cases of violations of rights of protected persons referred to them by a court;
(e)
Advise and report to the Appropriate Government on any matter concerning
HIV/AIDS and may suo moto or when requested by the Appropriate Government:
(i)
review, the safeguards under the Constitution and recommend measures for
their effective implementation,
(ii)
review the provisions of any existing or proposed law or policy, treaties and
other international instruments and recommend measures for their effective
implementation or amendment to ensure their compliance with the
provisions of this Act and report other results of any such examination;
(iii)
review the factors that inhibit the enjoyment of rights of protected persons
and recommend appropriate remedial measures;
(iv)
report as to the lav. s that should be made by the Legislature, or action that
should be taken by such Government, on matters relating to the rights of
protected persons and [HIV prevention and awareness programmes];
(v)
report on any matter arising in the course of the performance of its
functions;
(vi)
assess and recommend strengthening of the national, state or local
healthcare system including on improving access to healthcare, primary
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39
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29.1.04
health care system, integrate HIV with existing national health programmes,
improving health education
(e) undertake a review of all laws, [in particular personal laws] and determine the
manner in, and extent to, which such laws discriminate against women and recommend
the reform and repeal of such laws to the appropriate government;
(f)
establish a committee/forum to examine the impact of the HIV/AIDS epidemic on
women which shall examine inter alia the role of women at home and in public life, the
sexual and reproductive rights of women and men, including women’s ability ot negotiate
safer sex and make reproductive choices, strategies for increasing educational and
economic opportunities for women, sensitising service deliverers and improving
healthcare and social support services for women and the impact of religious and cultural
traditions on women;
(g)
recommend [measures] to the Appropriate Government to chsuremoiharassment
from law enforcement and institute programmes for law enforcement sensitisation on
matters related to this Act [government to give answer];
(h)
recommend and assist in the formulation and implementation of action plans by
the Appropriate Government to ensure the proper provision of health care through public
healthcare institutions;
(i)
maintain, publish and disseminate in as wide-a manner as possible a list of care
and support centres and homes, doctors providing care and treatment for HIV/AIDS,
helplines, testing facilities, legal assistance;
(i) encourage the efforts of non-governmental organisations and institutions working
in the field of HIV/AIDS, human rights and public health;
(k) promote, commission and finance research in relation, to HIV/AIDS;
(1)
(m)
surveillance?
liase and take the assistance of international, multilateral and bilateral agencies
for support and co-operation in the field of research in vaccines, drugs, emerging systems
of health care and other financial and managerial-inputs.
(n)
Provide material and human resources and allocate sufficient funding to support,
sustain and enhance NGOs, AIDS service organisations, community organisations in
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29.1.04
areas of core support, capacity-building and implementation of activities, in such areas as
HIV-related ethics, human rights and law.
(o)
collect information on HIV/AIDS, human rights and [ ] and use this information
as a basis for policy and programme development and reform;
(p)
promote the understanding, acceptance and public discussion of rights of
protected persons and of the provisions of this Act;
(q)
formulation of five year-action plan for each commission - open, to public scrutiny
(r)
do anything incidental or conducive to the performance of any of the preceding
functions.
48,
Additional Functions of National HIV/AIDS Commission. - In addition to the
above, the National HIV/AIDS Commission shall -
(a) formulate and implement a National HIV/AIDS Policy which shall be reviewed
and amended if necessary every three years after widespread consultation;
(b) in relation to State and Union Territory Commissions(i)
supervise their functioning;
(it)
provide technical assistance and guidance to carry out and [sponsor]
investigations and research relating to HIV/AIDS;
(iii)
co-ordinate their activities and resolve disputes among them;
(iv)
lay down or modify, in consultation with them, standards for HIV tests,
blood safety, medication, [ ];
(v)
budgetary allocations for State HIV/AIDS Commissions- does this happen
now or are they independent? Monitor use of funding and resources
(c)
determine and publish guidelines for the registration and support of NGOs by
State/Union Territory Commissions and shall ensure that such NGOs adopt and follow
good practices/ethical guidelines in the running and management of their affairs. For this
purpose the Commission shall provide advice and basic training on the practical
management of NGOs. Guidelines for registration and support of NGOs to be open to
public scrutiny. Evaluation of NGOs
49.
Additional Functions of State/UT HIV/AIDS Commission. — In addition to the
duties/functions set out in section (), State/Union Territory Commissions shall -
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(a) translate Guidelines issued by the National HIV/AIDS Commission into local and
regional languages, shall ensure their widespread dissemination and monitor their
implementation;
(b) report to National HIV/AIDS Commission
■ (c) acting under Section (inquiry) (i) where it considers it appropriate to do so—endeavour, by conciliation, to effect
a settlement of the matters that gave rise to the inquiry; and
(ii) where it is of the opinion that the act or practice is violative of the provisions of
this Act, and the Commission has not considered it appropriate to endeavour to effect a
settlement of the matters that gave rise to the inquiry or has endeavoured without success
to effect such a settlement— report to the Appropriate Government in relation to the
inquiry;
(d)
coordinate with the National HIV/AIDS Commission and other State and Union
Territory Commissions for the purposes of this Act;
(e)
translate into
local and regional languages and ensure the widespread
dissemination of the National HIV/AIDS Policy and shall ensure its effective
implementation;
(f)
establish HIV/AIDS helplines in each district;
(g)
Counselling: VCTC, Registration of Counsellors, Full time Counselling center at
Commission Office, Training of counsellors, List of registered counsellors and VCTC to
be maintained and available free of cost to all HCWs and public.
50.
Authentication of orders of Commission. - All orders and decisions of the
Commission shall be authenticated by the signature of the Director or any other member
authorised by the Commission in this behalf.
51.
Power of Commission. - In all proceedings under this Act before the
Commission-
fa) the Commission shall have all the powers of a civil court for the purposes of
receiving evidence, administering oaths, enforcing the attendance of witnesses,
compelling the discovery and production of documents and issuing commissions for the
examination of witnesses;
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(b)
29.1.04
the Commission, may, subject to any Rules made in this behalf, make such orders
as to cost as it considers reasonable and any such order shall be executable as a decree of
a civil court.
52.
Commission to Consult. - (1) For the purposes of the performance of its
functions, the Commission shall work with and consult appropriate persons,
governmental organisations and non-governmental organisations.
(2)
The Commissions may/shall call upon such experts, from the fields of [public
health, human rights, law and/or HIV] or from any other discipline as it deems necessary,
to assist the Commission in the conduct of any inquiry or proceeding before it.
(3)
The Commission shall ensure, through political and financial support, that
community consultation occurs in all phases of HIV/AIDS policy design, programme
implementation and evaluation and that community organisations are enabled to carry out
their activities, including in the fields of ethics, law and human rights, effectively.
Explanation: Community consultation shall include consultation with protected persons,
community based organisations and, AIDS service organisations, human rights NGOs
and representatives of vulnerable groups.
(4)
The National HIV/AIDS Commission in consultation with the State and Union
Territory Commissions shall establish formal and regular mechanisms to facilitate
ongoing dialogue with and input from such community representatives into HIV-related
government policies and programmes including through regular reporting by community
representatives to the various government, parliamentary and judicial branches, joint
workshops with community representatives on policy, planning and evaluation of State
responses and through mechanisms for receiving written submissions from the
community.
(5)
The Commission shall support a greater involvement of protected persons, and of
persons living with HIV/AIDS in particular, through an initiative to strengthen the
capacity and co-ordination of networks of people living with HIV/AIDS and community
based organisations. [Paris Declaration-GIPA]
53.
State to consider Commission reports. - The Appropriate Government shall
consider the reports and recommendations of the. Commission, in particular under section
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29.1.04
[ ] and together with comments-thereon,-.shall lay-the .same'tbeforeuthe>concerned
legislature for their action.
54.
Budgetary Provisions. - (1) The Appropriate Government MAY, after due
appropriation made by the [Parliament or the concerned legislature as the case may be]
by law in this behalf, make in each financial year such contributions to the Commission
as it may think necessary to enable the Commission to perform its functions under this
Act.
(2)
Each Commission shall have its own fund, and all sums which may, from time to
time, be paid to it by the Appropriate Government and all other receipts (by way of gifts,
grants, donations, benefactions fees or otherwise) of that Commission shall be carried to
the fund of the Commission and all payments by the Commission shall be made from
there.
(3)
The Commission may expend such sums as it thinks fit for performing its
functions under this Act, and, where any law for the time being in force relating to the
protection of rights of protected persons or for the prevention and promotion of
awareness in relation to HIV provides for the performance of any function under such
law by the Commission, also for performing its functions under such law and such sums
shall be treated as expenditure payable out of the fund of that Commission.
(4)
A Commission may, with the consent of, or in accordance with, the terms of any
general or special authority given to it by the Appropriate Government borrow money
from any source by way of loans or issue of bonds, debentures or such other instruments,
as it may deem fit, for the performance of all or any of its functions under this Act.
(5)
The Commission shall during each financial year, prepare, in such form and at
such as may be prescribed, a budget in respect of the financial year next ensuing showing
the estimated receipt and expenditure, and copies thereof shall be forwarded to the
Appropriate Government.
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29.1.04
CHAPTER XIV
INSTITUTIONAL OBLIGATIONS
[55. General Responsibility.-of Institutions -'All persons in charge of an institution
shall ensure compliance withtheprovisions of this Act, upon its notification. ]
56. Grievance Redressal Mechanism. (1) Every institution shall appoint a full time
[officer] of senior rank, as the Complaints Officer, who shall deal with complaints of
violations of the provisions of this Act by or in the institution on a day to day basis in
accordance with the Regulations.
(2)
Every person with a grievance about the violation of the provisions of this Act by
or in an institution has the right to approach the Complaints Officer to attend to her/his
grievance and shall be informed of such right by healthcare institution?
[officer or committee?] [ifcbihmittee.who''shbuld<be?b'niit?.]i[ohe:'personiforantemar=and
external complaints? Only healthcare' institution-concern?]
57. HIV/AIDS Policy. (1) Upon notification of this Act the model HIV/AIDS
Policies contained in Schedule 1 of this Act, as may be applicable, shall be deemed to be
auOpicd by every institution.
(2) The text of the HIV/AIDS Policy shall be prominently posted by the
employer/person in charge of an institution in English and in the language understood by
the majority of persons working in or accessing such institution on special boards to be
maintained for the purpose at or near the entrance through which the majority of the
persons employed or accessing the institution enter such institution [and in all
departments thereof.]
(4) [Such notice shall state the rnanner in which copies of the HIV/AIDS policy may
be obtained and employees or persons accessing the institution shall be entitled to a copy
of such policy free of charge. The HIV/AIDS policy of all institutions shall be available
to all members of the public for a nominal fee.
(5) The institution shall conduct an annual training for persons employed by it in
understanding and implementing the HIV/AIDS Policy of the institution.
For the purposes of Part institution means
a)
any venture/organisation/establishment carrying on any systematic activity by co
operation between 20-50 or more persons (for wages or otherwise) for the
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45
29.1.04
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production, supply or distribution of goods and services with a view to satisfy
human wants or wishes
Exceptions:
any agricultural operation except where such agricultural operation is carried on
in an integrated manner with any other activity (being any such activity referred
to in the foregoing provisions of this clause) and such other activity is
predominant one. Explanation: for the purposes of this sub clause agr. oper does
not include any activity carried on in a plantation as defined in Section 2(f) of the
Plantations Labour Act 1951.
any domestic service
[Institutions with 20 or more’.personsdn^the5pasUyear/<10rmonths?/canying.-on-activity in
one place?
Incentive for employers to do this?
Effect of non-compliance?
Religious institutions?
VtuOb .
Charitable institutions?
CONTRACTORS?]
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29.1.04
CHAPTER XV
DUTIES OF STATE
[58. State obligations. - (I) In compliance with India's commitments under the
Constitution of India and the international conventions to which it is party, the State has
an obligation:
(a)
Tto ensure the right of access to health facilities, goods and services on a non-
discriminatory basis, especially for vulnerable or marginalized groups;
(b)
To ensure access to the minimum essential food which is nutritionally adequate
and safe, to ensure freedom from hunger to everyone;
(c)
To ensure access to basic shelter, housing and sanitation, and an adequate supply
of safe and potable water;
A
(d) To provide essential drugs, as from time to time defined under the WHO Action
Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and services;
(f) To adopt and implement a national public health strategy and plan of action, on the
basis of epidemiological evidence, addressing the health concerns of the whole
population; the strategy and plan of action shall be devised, and periodically reviewed
[every five years], on the basis of a participatory and transparent process; they shall
include methods, such as right to health indicators and benchmarks, by which progress
can be closely monitored; the process by which the strategy and plan of action are
devised, as well as their content, shall give particular attention to all vulnerable or
marginalized groups.
A
(g) To ensure reproductive, maternal (pre-natal as well as post-natal) and child health
care;
(h)
To provide immunization against the major infectious diseases occurring in the
community;
(i)
To take measures to prevent, treat and control epidemic and endemic diseases;
(j)
To provide education and access to information concerning the main health
problems in the community, including methods of preventing and controlling them; and
(k)
To provide appropriate training for health personnel, including education on
health and human rights.
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29.1.04
(2)
The State shall extend to every person full protection of her/his rights as contained
in this Act [ Promotion and Protection of ConstitutionakObligations/Promotion and
Protection of the Right to Health]
(3)
In order to fulfill its obligations under this Act the State shall -
(a)
Take measures to develop and promote awareness among protected persons of
their rights and duties under this Act;
(b)
Take measures to develop and promote awareness in the general public/ all
persons of the rights and duties under this Act;
(c)
Take measures to develop and implement programmes in order to promote the
rights of protected persons under this Act including:
(i)
develop action, plans to address any violation of the rights of protected
persons under this Act;
(ii)
develop effective and appropriate redressal mechanisms to address
complaints of the violations of rights of protected persons under this Act;
(iii)
enact, review and amend legislation to promote the rights of protected
persons and to establish a legislative framework in consonance with the
objectives of this Act;
(iv)
promote and ensure the greater involvement of protected persons/ PLHA
in programmes, action plans, policy formulation,
decision-making
processes and implementation of plans under this Act particularly and in
the field of HIV/AIDS in general;
(v)
develop and implement effective and stringent monitoring and reporting
mechanisms to oversee the implementation and enforcement of this Act by
all persons;
(vi)
develop codes of practice as contemplated in this Act in order to promote
the rights of protected persons;
(vii)
provide assistance, advice and training to protected persons, non
governmental organisations, healthcare workers and institutions, workers
organisations, employers associations and law enforcement agencies on
issues related to the rights of protected persons and the provisions of this
Act;
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(viii)
29.1.04
conduct effective, multi-lingual information campaigns to increase
awareness of the provisions of this Act; and
(ix)
support the work of non-governmental organisations working in the field
of HIV/AIDS.
59.
Review of Laws. - (1) In carrying out its duties under this Act, particularly
section 2(iii) of this Part/Chapter, the State shall:
(a)
audit laws, policies and practices with a view to eliminating ail discriminatory
aspects thereof and making them consistent with the objectives and the rights and duties
enunciated under this Act;
(b)
enact, review and amend laws and develop policies and codes of practice in order
to eliminate discrimination on prohibited grounds;
(c)
consider and
review the recommendations
of the National
HIV/AIDS
Commission or the State HIV/AIDS Commission as the case may be
(d)
consult the HIV/AIDS Commissions, protected persons and their representatives
and NGOs/persons working in the field, in the formulation of laws and policies relating
to HIV/AIDS;
ensure the education, training, capacity building and sensitisation of law enforcement
agencies, state officials and the judiciary on provisions of this Act, issues relating to
protected persons and in particular the benefit of harm reduction measures and their
protection and promotion;
60.
Programmatic and Implementational Obligations. (1) The State shall, in co
ordination with the HIV/AIDS Commissions establish an effective national framework to
respond to HIV/AIDS which ensures a co-ordinated, participatory, transparent and
accountable approach, integrating HIV/AIDS policy and programme responsibilities,
across all branches of government.
(2)
Each Central, State and local ministry shall ensure that HIV/AIDS and human
rights are integrated into all its relevant plans and activities, including:
(a)
Education;
(b)
Law and justice, including police and corrective services;
(c)
Science and research;
(d)
Employment and public service;
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29.1.04
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(e)
Welfare, social security and housing;
(f)
Immigration,
indigenous
populations,
foreign
affairs
and
development
cooperation;
(g)
Health;
(h)
Treasury and finance;
(i)
Defence, including armed services.
(3)
The Central and State Government and other authorities shall ensure that each
government department devises clear guidelines on the extent to which its policies and
practices reflect HIV-related human rights norms and their enforcement in formal
legislation and regulations, at all levels of service delivery. Coordination of these
standards should occur in the national framework and be publicly available, after
involvement of community and professional groups in the process.
61.
International. - (1) The State shall initiate and . ensure-the ongoing'interaction
with neighbouring and other States to ensure that,.governmental. responses to'the
HIV/.AIDS epidemic will continue to make the-besbuse-of-assistance available from’the
international community. Such interaction shall, inter alia, reinforce cooperation and
assistance to areas related to HIV/AIDS and human rights, in particular relating to access
to treatment.
(2)
The State shall promote HIV-related human rights in international forums and
ensure that they are integrated into the policies 'and programmes of international
organizations.
(3)
The State shall consider international guidelines as they develop' in the
formulation of policies etc.
62.
Legal Support for Protected Persons. The State shall ensure legal support and
other activities including training seminars, workshops, networking, developing
promotional and educational materials, advising clients of their human and legal rights,
referring clients to relevant grievance bodies, collecting data on human rights issues and
human rights advocacy.
63.
Strengthening, training and equipping public health. The State shall ensure
that all public health authorities are trained and equipped to provide a comprehensive
range of services for the prevention and treatment of HIV/AIDS, including relevant
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29.1.04
information and education, access to voluntary testing and counselling, STD and sexual
and reproductive health services for men and women, condoms and drug treatment,
services and clean injection materials, as well as adequate treatment for HIV/AIDSrelated illnesses, including pain prophylaxis.
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29.1.04
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CHAPTER XVI
SPECIAL PROVISIONS
64.
Women and gender. - (1) The State shall integrate a gender-based approach that
recognises that biological and socio-cultural factors play a significant role in influencing
the health of men and women, in its health-related policies, planning, programmes and
research in order to promote better health for both women and men.
The State shall ^ensure theidishg^egad.on:pfrhe'alth.-and^pcip^onormc^data\-accprdin'g<tp.
sex is essential for-identifying-andgiemedyingunequalities inthealth.
(2)
The State shall develop and implement a comprehensive national strategy for
promoting women's right to health throughout their life span. Such a strategy should
include interventions aimed at the prevention and treatment of diseases affecting women,
as well as policies to provide access to a full range of high quality and affordable health
care, including sexual and reproductive services. A major goal should be reducing
women's health risks, particularly lowering rates of maternal mortality and protecting
women from domestic violence. The realization of women's right to health requires the
removal of all barriers interfering with access to health services, education and
information, including in the area of sexual and reproductive health.
(3)
The State shall undertake preventive, promotive and remedial action to shield
women from the impact of harmful traditional cultural practices and norms that deny
them their full reproductive rights.
65.
Women/Right of Residence. Every protected person who is a woman shall have
the right to reside in her matrimonial home and the right to use the facilities of such
home.
66.
Registration of Marriages and Pre-marital HTV counselling. (1)A11 persons
intending to get married shall receive HIV related information/undergo HIV related
counselling/information sessions?
(2) Notwithstanding anything contained in any other law for the time being in force:
(a) all marriages solemnised after the coming into force of this Act shall be registered
[in accordance with.the Regulations]; and
(b) a marriage that is not registered after [2 years from the notification of this Act/1
year from the date of its solemnisation], shall be voidable at the option of the woman; and
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(c)
29.1.04
a woman whose marriage has been declared void under this section, shall have all
rights to maintenance as if the marriage had been dissolved under the applicable law.
[Will this affect children?]
(3)
The State shall appoint [Registration Officers] in every district in the country.
[State to ensure widespread-dissemination-of these provisions through-Doordarshan -
Cable TV]
(4)
No marriage shall be registered unless the [Registering Officer] is satisfied that
the persons intending to marry have undergone pre-marital HIV counselling in
accordance with the Regulations under this Act.
Explanation: Pre-marital counselling includes counselling related to sexual health,
contraception, condom usage, [the benefits of a small family, fidelity], sexuality the
methods of transmission of HIV and other STDs, voluntary HIV testing and the
importance of communication and health relationships.
[Regulations: ■What:Tdndiof'coi^.elling?^niyhIffdnfiJtio^andfrefe^lfe ‘eiOT.ees?
[ Every-VCTC' establisK^[:undef<Sectipn;i{"-]/Ghg^ef'VT;I--Acc^s^'''oTThis' Act;s’hall
within 90 days of the notification of this Act:
(a)
formulate protocols for pre-marital HIV counselling,- which shall include
counselling related to sexual health, contraception, condom usage,'the benefits of a small
family, the methods of transmission of HIV and- other STDs, voluntary HIV testing and
the importance of communication-and healthy relationships;-and
(b)
set up and [run] a Counselling Centre-at the Marriage Office in its district, which
shall implement the protocols formulated under (a) above.
67.
Pregnant Women. [Routine testing] (1) No pregnant woman who is a protected
person shall be subject to forced sterilisation [hysterectomy?] or abortion [is this
treatment?].
(2) Notwithstanding anything contained in any law for the time being in force, an
HIV- positive pregnant woman shall have the right to be given proper counselling to
enable her to make an appropriate decision about her pregnancy.
(3) Every healthcare institution shall within 60 days of the notification of this Act,
develop protocols for the testing, treatment and counselling of HIV positive pregnant
women [including relating to counselling in relation to care and treatment for the HIV+
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29.1.04
woman and her child, that-informed consent-mustsform^the .basis-for-the.-womahis
individual decision, recognition-ofthe righhof. the womani.to/decide/ the-decisib'nstb’Juse
any anti-retroviral drugs-.dunngSpregnancy^should'-be.imade .by.-.<the -woman.'jfollowing
discussion with her health care provider regarding-.the.known:and-unknown'benefitS;Iand
risks to her and her foetus, .counselling on-alternatiyesfo/breast-feedingariilinfant-milk
substitutes to reduce MTCT] and every institution providing services relating to women
and/or pregnancy shall provide information on MTCT.
(3) Notwithstanding anything contained in any law for the time being in force,
information and advertisements [leaflets?] relating to alternatives to breast feeding and
infant milk substitutes to reduce mother-to-child transmission of HIV shall be permitted.
[Milk substitutes Act] .[IEC?] '[Research into, safe .methods .-for-..-HIV.+ persons to
conceive.]
68.
Sexual assault Protocols. (1) Every healthcare institution shall ihrcorisultatjoh
with an NGO [?] within 30 days of the notification of the Act formulate, notify and
implement protocols for the counselling, testing and treatment of any person against
whom a sex crime is alleged to have been committed. [Such protocols shall provide infer
alia for sensitive counselling-procedures‘to- make-the -victim-aware of the-iiskof-HIV,
where the person is a child,-^follow guidelines of-^consent/confidentiality -of-.this-slaw,'
provide for PEPs,-testing, treatment, holistic.counselling?.]
(2) The Central Govemmentifor eacUUnion-vTerritory-and' the--State Government',for
every district in its respective State, shall .-establishHsexual assault crisis■■ centers?--in
consultation with the National Commission ;for<Wbmen/NGOs? -HIV focus? Each-will
have HIV counselling.
(3) Any person against whom a sex crime is alleged to have been committed shall,
upon reporting such crime be referred/advised by the police without any delay to a state
run healthcare institution. In such cases the requirements of the provisions of Sections
154 or 155 of the Code of Criminal Procedure, as the case may be, shall be fulfilled at
such institution.
(3) Every police station shall within 90 days of the notification of this Act, identify a
state run healthcare institution in its jurisdiction providing HIV testing, counselling and
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29.1.04
treatment services. The police station shall display the name and address of such
institution in a prominent place with a notice in accordance with the Regulations.
Explanation: For the purposes of this section, a ‘sex crime’ includes any non-
consensual contact with a sexual purpose that may expose a person to the risk of HIV
transmission including an offence against any person under Section 376, section 376A,
section 376B, section 376C, section 376D and section 377 whether or not such an act is
recognised as a crime by law for the time being in force and whether or not it is reported
to the police. [Non consensual sex between husband'and-wife? "Any' other crime?
269/270?]
69.
Persons in the Care and/or Custody of the State. (1) Within 6 months of the
coming into force of this Act, the State shall introduce strategies for harm reduction
including sexual health information, condoms, needle exchange and drug substitution
programmes for all persons in its care and custody.
(2) Every person who is in the care and/or custody of the State shall have the right to
HIV counselling, testing and treatment services.
(3) A person in the care and/or custody of the State against-whom -a sex crime is
alleged to have taken place or who has otherwise been exposed-to the risk of-HIV
transmission while in the care and custody of the State, shall be referred immediately to-a
State healthcare institution for-HFV counselling andrif recommended-shalFbe entitled to
PEP from the State.
[Right of HIV+ person in custody to medicines, special lock up,-nutrition?.]
Explanation: for the purposes of this--section persoris-in-the caresand custody of-the
State means any person-detained, ■. arrested or .otherwise-in-the care.-and custody of the
State and includes persons convicted-.of acrimeserving.-a/sentence^persons-awaiting .trial
in the custody of the Stated-persons detained under_.preventive -laws, -persons under -the
Juvenile Justice Act, ITPA, persons in State run institutions,[.who else?]
70.
Children. (1) The State shall take measures to reduce infant mortality and
promote the healthy development of infants and children.
(2) The State shall ensure access to essential health sendees for every child and his or
her family, including pre- and post-natal care for mothers.
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(3) The State shall ensure access to child-friendly information about preventive and
health-promoting behaviour and support to families and communities in implementing
these practices.
(4)
The State shall ensure that girls, as well as boys, have equal access to adequate
nutrition, safe environments, and physical as well as mental health services.
(5)
The State shall adopt effective and appropriate measures to abolish harmful
traditional practices affecting the health of children, particularly girls, including early
marriage, preferential feeding and care of male children.
(6)
The State shall ensure that children with disabilities should be given the
opportunity to enjoy a fulfilling and decent life and to participate within their community.
(7)
The State shall provide a safe and supportive environment for adolescents, that
ensures the opportunity to participate in decisions affecting their health, to build life
skills, to acquire appropriate information, to receive counselling and to negotiate the
health-behaviour choices they make.
(8)
The State shall ensure the development of youth-friendly health care, which
respects confidentiality and privacy and includes appropriate sexual and reproductive
health services.
(9)
In all policies and programmes aimed at guaranteeing the right to health of
children and adolescents their best interests shall be a primary consideration and in the
formulation of such policies and programmes, the State shall consult children and NGOs
working with children at national, state and local levels.
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. M I
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CHAPTER XVII
SPECIAL PROCEDURES IN COURT
71.
Suppression of Identity. - (1) In any legal proceeding in which an HIV-positive
person is a party or in which he is an applicant, the court, on an application by such
person
that
it
is
in
the
interest of justice
and
that case
would
not
be
[conducted/prosecutedj may pass any or all of the following orders:
(a)
that the proceeding or any part thereof be conducted by suppressing the identity of
the HIV-positive person by substituting the name of such person with a pseudonym in
the records of the proceedings in accordance with Regulations under this Act;
(b)
that the trial in the proceeding or any part thereof may be conducted in camera-,
(c)
restraining any person from in any manner publishing any matter leading to the
disclosure of the name or status or identity of the HIV-positive person.
(2) In any proceeding where, an order, of suppression■of-identity . of an HIV-positive
person is passed, all subsequehtiapplications arid [ ] shalltbe in;th'e pseudonym.
Notwithstanding any other action that may be taken against any person disobeying an
order in sub-section (c) of section (I) under any provision of law for the time being in
force, such a person shall be punishable with fine of up to Rs. One Lakh or with
imprisonment of up to one year. [Offence cognisable etc.]
72.
Priority. (1) In any legal proceedings concerning (or relating) to an HIV-positive
person, the court shall take up and dispose off the proceeding on a priority basis.
(2) In such a legal proceeding, the court shall, as soon as possible, but not later than
ninety days of the institution of the proceedings, fix a timetable for the final hearing and
disposal of the proceeding in consultation with the parties.
(3) The timetable so fixed shall take into account any arbitration, mediation or
settlement that may be ordered or the evidence that may be taken and the final oral and
written arguments and judgement that may be pronounced such that
the time taken for
disposing of the entire proceeding, from the date of its institution till final disposal shall
not, in a proceeding which requires evidence to be taken, be more than three years, and in
any other case not more than two years.
(4)
The timetable for a trial in any legal proceeding concerning (or relating) an HIV
positive person shall be so fixed that it is conducted on a daily basis.
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29.1.04
(5)
Evidence in such proceedings shall, to the extent possible, be taken before a
commissioner as provided in Order XVIII of the Code of Civil Procedure, 1908.
(6)
Any interim application made in such a proceeding shall not affect the timetable
or be a basis of enlarging the time fixed for final disposal of the proceeding.
(7)
Any party not adhering to the timetable, except in cases of illness of the HIV
positive person who is party to or a witness in the proceedings, shall be liable to pay the
costs not less than Rs. 1000 per day of the delay to the legal aid fund of the concerned
court
(8)
All interlocutory applications in any such proceedings shall be disposed off in a
summary manner on the basis of document before the court without prejudicing the rights
of the parties or delaying the final disposal of the main proceedings.
(9)
In a proceeding in which.an HIV-positive person is a party, [if the judge presiding
over the matter is transferred,-retiresmr-otlierwise ,vacates-the court?]/the matter shall-B.e
transferred to another court/judge-within 30 days.
73.
Maintenance. (1) In any maintenance application filed by or on behalf of a
protected person under any law for the time being in force, the court shall on the first date
[of hearing?], after the application is filed, have the power to grant prima facie ad hoc
maintenance on the basis of the application alone until the disposal of the application or
further orders in the application.
(2) In passing any order of maintenance the court shall take into account medical costs
and other HIV-related costs that may be incurred by the applicant.
74.
Bail Applications. In any application for bail or anticipatory bail made by a
person, HIV-positive status of the person will be a relevant factor to be considered by the
court in passing an order on such-an application.
75.
Sentencing. In passing any orders relating to sentencing or fine or suspension,
remission or commutation of a sentence, the HIV-positive status of the person in respect
of whom such an order is passed shall be a relevant factor to be considered by the court in
passing an order in that behalf.
76.
Powers of Court. (1) Notwithstanding any other law for the time being in force, a
court may pass appropriate orders in the circumstances of the case to:
(a) prevent breaches of the provisions of this Act;
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(b) redress the breaches of the provisions of this Act by directing:
i.
specific steps, special measures and/or affirmative actions to be taken;
ii.
the award of damages including specific, general and exemplary damages;
iii.
the withdrawal of and/or ceasing and desisting of commission of the breaches
of this Act;
iv.
the respondent to undergo an audit of specific policies or practices as
determined by the court;
v.
an appropriate order of a deterrent nature, including the recommendation to
the appropriate authority, to suspend or revoke the licence of a person;
vi.
any party make regular progress reports to the court regarding the
implementation of the court’s order; and
Registrar of the court to report the matter to the concerned police station
the
vii.
having jurisdiction for the possible institution of criminal proceedings.
(2) In a proceeding relating to discrimination in employment under this Act, the court
shall, without prejudice to other powers that it may have, have the power to pass any or
all of the following orders:
(a) the employment including reasonable accommodation under Section [ ] and
reinstatement of a protected person.
(b) payment of wages/salary/income, allowances, benefits, perquisites and privileges
that may have been lost on account of non-employment or termination;
(c)
award special, general and exemplary damages on account of the non-employment
or termination.
(3) In any proceeding relating to discrimination under this Act, the Court shall have
the power to pass orders for [social work/community service] by the person proved to
have discriminated under this Act.
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59
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29.1.04
77.
Presumption as to Discrimination. (I) When the question is whether a protected
person has been discriminated against under-this Actrand-it-is-'shown .that the-person
against whom such discrimination is alleged to have-taken place is a protected person and
that the act or omission alleged as being discriminatory..took ,place,jthe Court shall
presume, that such act or omission is unfair discrimination under this Act and
(a) the respondent must prove, on the facts before the court, that the discrimination
did not take place as alleged; or
(b) the respondent must prove that the conduct is not based on one or more of the
prohibited grounds
78.
Jurisdiction of Courts. Nothing contained in this law prohibits, limits or
otherwise restricts the jurisdiction of civil and criminal courts to address violations of the
provisions of this Act.
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CHAPTER. XVIII
PENALTIES
[Should there be penalties?]
[Options to punishment?]
79.
Failure to Comply with orders of Health Ombudsperson under Section [ | -
Whoever fails to comply with any direction given under section [ ] within such time
(1)
as may be specified in the direction shall, on conviction, be punishable with
imprisonment for a term which may extend to three months or with fine which may
extend to ten thousand rupees or with both and in case the failure continues, with an
additional fine which may extend to five thousand rupees for every day during which
such
(2)
failure
continues
after
the
conviction
for
the
first
such
failure.
Whoever fails to comply with any order issued under section [ ] or any direction
issued by court under section [ ], in respect of each such failure and on conviction, be
punishable with imprisonment for a term which shall not be less than one year and six
months but which may extend to six years and with fine, and in case the failure continues,
with an additional fine which may extend to five thousand rupees for every day during
which such
failure continues after the conviction
for the
first such
failure.
(3) If the failure referred to in sub-section (2) continues beyond a period of one year
after the date of conviction, the offender shall, on conviction, be punishable with
imprisonment for a term which shall not be less than two years but which may extend to
seven years and with fine.
80.
Penalty For Contravention Of Provisions Of Section [ |. Whoever contravenes
the provisions of section [ ] shall be punishable with imprisonment for a term which shall
not be less than one year and six months but which may extend to six years and with fine.
Provided that where HCW discrimination is likely to lead to cause his death or is
likely to cause such harm on her/his body as would amount to grievous hurt within the
meaning of Section 320 of the 1PC...
81.
Enhanced Penalty After Previous Conviction. If any person who has been
convicted of any offence under section [ ] or section [ ] or section [ ] is again found guilty
of an offence involving a contravention of the same proviso, he shall, on the second and
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61
29.1.04
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on every subsequent conviction be punishable with imprisonment for a term which shall
not be less than two years but which extend to seven years and with fine :
Provided that for the purpose of this section no cognizance shall be taken of any
conviction made more than two years before the commission of the offence which is
being punished
82.
Penalty For Contravention Of Act By Law Enforcement. A public servant/
law enforcement official who contravenes the provisions of [harm reduction measures]
shall be punished with simple imprisonment for a term which may extend to one year, or
with fine, or both.
A law enforcement official who violates the provisions of this part, harasses, arrests etc,
s/he shall be subject to misconduct proceedings under the relevant Police Act
NACO/SACS to investigate and report on law enforcement harassment - appropriate
government to take action - report to form part, of confidential records. District
Commissioner of Police.
83.
Penalties for Misleading Information. Misinformation on HIV/AIDS
prevention and control through false and misleading advertising and claims in any media
or the promotional marketing of drugs, devices, agents, or procedures without prior
approval from the Drugs Controller General of India and the requisite medical and
scientific basis, including markings and indications in drugs and devices and agents,
purponting to be a cure or fail safe prophylactic for HIV infection is punishable with a
penalty of imprisonment for two months to two years, without prejudice to the imposition
of administrative sanctions such as fines and suspensions or revocation of professional or
business license.
84.
Penalty For Contravention Of Certain Provisions Of The Act. Whoever
contravenes any of the provisions of this Act or fails to comply with any order or
direction given under this Act, for which no penalty has been elsewhere provided in this
Act, shall be punishable with imprisonment which may extend to three months or with
fine which may extend to ten thousand rupees or with both, and in the case of a
continuing contravention or failure, with an additional fine which may extend to five
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29.1.04
thousand rupees for every day during which such contravention or failure continues after
conviction for the first such contravention or failure.
85.
Publication Of Names Of Offenders. If any person convicted of an offence
under this Act commits a like offence afterwards if shall be lawful for the court before
which the second or subsequent conviction takes place to cause the offender's name and
place of residence, the offence and the penalty imposed to the published at the offender's
expense in such newspapers or in such other manner as the court may direct and the
expenses of such publication shall be deemed to be part of the cost attending the
conviction and shall be recoverable in the same manner as a fine.
86.
Offences By Companies. (I) Where an offence under this Act has been
committed by a company, every person who at the time the offence was committed was
in charge of, and was responsible to the company for the conduct of, the business of the
company, as well as the company, shall be deemed to be guilty of the offences and shall
be liable to be proceeded against and punished accordingly:
Provided, that nothing contained in this sub-section shall render any such person liable
to any punishment provided in this Act if the proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent the commission of
such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under
this Act has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any neglect on the part
of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this section (a)
"company" means any body corporate and includes a firm or other association of
individuals; and
(b)
"director" in relation to a firm means a partner in the firm.
Section [ ]
87.
Offences By Institutions
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63
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29.1.04
88.
Offences By Government Departments. Where an offence under this Act has
been committed by any Department of Government, the Head of the Department shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly.
Provided that nothing contained in this section shall render such Head of the
Department liable to any punishment if he proves that the offence was committed without
his knowledge or that he exercised all due diligence to prevent the commission of such
offence.
89.
Cognizance of Offences. (1) No court shall take cognizance of any offence under
this Act except on a complaint made by -
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29.1.04
CHAPTER. XX
MISCELLANEOUS
90.
Act to have overriding effect. - (1) The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for the time
being in force or in any instrument having effect by virtue of any law other than this Act.
(2) The provisions of this Act shall have effect notwithstanding anything to the
contrary contained in the memorandum or articles of a company, or in any agreement
executed by it, or in any resolution passed by the company in general meeting pr by its
board of directors, whether the same be registered, passed or executed, as the case may
be, before or after the commencement of this act;
(3)
Any provision contained in the memorandum, articles, agreement or resolution
aforesaid shall to the extent to which it is repugnant to the provisions of this Act, become
or be void, as the case may be.
91.
Member and Staff of Commissions etc. to be public servants - the
Chairperson, members, officers and other employees of the Commission shall be deemed
to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of
I860).
92.
Exemption from tax on wealth and income- Notwithstanding anything
contained in the Wealth Tax Act, 1957 (27 of 1957), the Income-tax Act, 1961 (43 of
1961), or any other enactment for the time being in force relating to tax on wealth,
income, profits or gains, the Commission shall not be liable to pay wealth-tax, incometax or any other tax in respect of their wealth, income or profits or gains derived.
93.
Report of the Commission to be placed before Legislature. -The Appropriate
Government shall cause to be placed before both Houses of the concerned legislature
once a year a report regarding the performance of the Commission under this Act.
94.
Government to be bound. - The provisions of this Act shall be binding on the
Government.
95.
Protection of action taken in good faith. - No suit, prosecution or other legal
proceeding shall lie against the Central Government, or against the Chairperson, or
members or any person acting under such Government, or Authority
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65
29.1.04
96.
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Delegation of powers.- The Appropriate Government may, by general order,
direct that any power exercisable by it under this Act shall, in such circumstances and
under such conditions, if any as may be prescribed in the order, be exercisable also by an
officer subordinate to that Government or the local authority.
97.
Power to make Rules. - (I) The Central/State Government [may/shall], by
notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such
rules may provide for all or any of the following matters, namely:-
•
the term of office of the members of the Commission and the manner in which
such member may resign under sub-section () of section [];
•
the time of the meetings of the Commission and rules of procedure in regard to
the transaction of business at its meeting under sub-section () of section [];
•
the qualifications of the Director of the Commission and members, and the tenure
for which they may be appointed under sub-section () of section [ ];
(3) Every- rule made by a State Government under this Act shall be laid, as soon as
may be after it is made, before the Legislature of that State.
98.
Power to remove difficulties.- (1) If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by order, not inconsistent with the
provisions of this Act, remove the difficulty.
Provided that no such order shall be made after the expiry of the period of two years
from the commencement of this Act.
(2) However, orders made under this section shall be laid, [as soon as may be after it
is made/within 30 days], before each House of Parliament.
99.
Review of Act. The Appropriate Government in consultation with the
Commission shall undertake a review of the working of this Act every three years to
ensure that it adequately addresses the issues raised by the HIV epidemic, is successful in
promoting and protecting the rights of protected persons and in preventing and
controlling the HIV epidemic and it is consistent with constitutional and international
human rights obligations.
Power of Central Government to give directions?
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ADDENDUM: Proposed amendments in other laws
1.
Special Marriages Act
2.
Indian Penal Code
(a)
Section 375
(b)
Section 377
(c)
Reform of sexual assault law in accordance with the 172"d Law
Commission Report
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67
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Promotion of Risk Reduction
Draft Legislation on HIV/A IDS
Lawyers ColleaiieHIV/A IDS Uni:
What is Risk Reduction?
Risk Reduction is the promotion of actions or
practices that:
•minimise a person’s risk of exposure to
HIV/AIDS
• and/or mitigate adverse impacts related to
HIV/AIDS
Specifically applied in the context of populations
that are considered vulnerable to HIV/AIDS like
Se_v Workers, Men who have sex with Men and
Injecting Drug Users.
,
Strategies for Risk Reduction
Provision of 1EC on safer sexual & injection
practices, counselling, testing & support services.
Provision of safe sex tools - male & female
condoms, lubricants, microbicides etc.
Provision ofclean needles, syringes, bleach &
sterilising equipment
Within an ’enabling’ environment which
encourages adoption of safer practices among
populations at risk.
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Existing laws impeding risk reduction
Sex workers
1TPA criminalises organised prostitution without
penalising individual sex workers except lor
practicing and soliciting in public. Used by police to
routinely harass sex workers.
Impact on HIV Interventions - Peer educators &
outreach staff harassed by police while distributing
condoms & safer sex information.
Impact on Public Health - Criminalisalion of sex work
settings impedes access to services, reduces sex
workers’ negotiation ability & makes introduction of
health and safety regulations impossible.
Existing laws impeding risk reduction
Men who have sex with men
Sec 377, IPC, punishes voluntary 'carnal intercourse’
against the order of nature with rpan, woman or
animal. Used by police to harass, extort & blackmail
MSM.
Impact on HIV interventions - Providing sexual health
& HIV information can be treated as abetment of a
crime e.g. - Naz/Bharosa, tucknow, 2001
Impact on Public Health - Criminalisalion of
consensual, adult sex between males increases stigma
& marginalisation, hampers HIV interventions,
exacerbating vulnerability to HIV.
Existing laws impeding risk reduction
Injecting Drug Users
NDPS Act makes consumption, possession etc. of
drugs a punishable offence. Pushes IDUs to the
fringes, without access to basic services & rights.
Impact on HIV Interventions - Renders provisions
& access of needle exchange, drug use
paraphernalia & drug substitution programmes
‘illegal’
impact on Public Health- Absence of HIV related
information & services including NEPs has fuelled
the epidemic among IDUs in several places
LAWYERS COLLECTIVE HIV/AIDS UNI T
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
14.03.04
Need for law reform
There is a need to review criminal laws
affecting these populations in the light of
the HIV epidemic. Targeted interventions
have failed primarily because of
dichotomous laws and practices.
There is a need for laws that empower
marginalised communities & facilitate
introduction & acceptance of HIV & health
programmes.
,
UNDER THE DRAFT LAW
• Existing laws cannot in any manner, prohibit,
impede, restrict or prevent the implementation or
use of any strategy for reducing risk of HI V
transmission
• The possession of any tool or paraphernalia for
reduction of risk of HIV transmission will not
amount to a criminal offence or attract civil
liability.
• Certain strategics of risk reduction are specifically
protected -1 EC, safe sex tools, drug substitution
programmes etc.
This implies
Police cannot interfere with any risk reduction
programme.
Implementation of risk reduction programmes
is not illegal.
Persons providing/possessing/utilising services
of risk reduction programme have immunity
from civil/criminal liability.
Police cannot apprehend/harass persons
providing/using risk reduction strategies.
lawyers collective hiv/aids unit
3
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Issues for consideration
Does this go far enough to protect vulnerable
groups from harassment & persecution?
Should certain‘physical spaces’ be
created/earmarked for carrying out risk reduction
programmes9
Can this provision be used to introduce coercive
measures like mandator.' testing of vulnerable
groups?
Will risk reduction programmes result in
increased stigmatisation and isolation of these
groups?
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.0.3.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
PROHIBITION OF
QUACKERY
Draft Legislation on HIV/A IDS
Lawyers Collectiw HIV/AIDS Unit
PRINCIPLES
•People should have choices/alternatives - but
should be REAL CHOICES
•Alternatives should be based on
SCIENTIFIC/SOUND DATA
•Harmful effects should be weighed with the
beneficial effects of all the alternative
treatments.
•Licenses of the persons propagating such
drugs should be checked and approved by the
Licensing Authority
Who is a Quads?
•“Quack”:
-"pretender of medical skills":
-“a charlatan";
-"one who talks pretentiuuslv without sound
knowledge ol the subject discussed”;
-"an unqualified practitioner of medicine".
• “A person who does not haw knowledge of a
particular system of medicine bin practices in
that system is a quack". (SC)
LAW YERS COLLECTIVE HIV/AIDS UNIT
I-
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
How Quackery Harms?
•Economic harm
•Direct hann
•Indirect harm
•Psychological hann
• Stealing time
• Hann to society
What do quacks do?
I
They prescribe
licensed drugs
|
I
~i
They manufacture &
sell unlicensed drugs
They claim to have magic
remedies, like mantra, kavacha
talisman or any other charm of
any kind which allegedly possess
miraculous powers
What do quacks use to promote
themselves?
• Advertisements
• Internet, web pages
• Flyers, leaflets, posters
• Word of mouth
• Media - articles, statements and interviews
• Use mobile vans, or set up a small make-shift
place to practice quackery'.
LAWYERS COLLECTIVE HIV/A1DS UNIT
14.03.04
. REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
The existing Legal System
• Against Quacks: prohibiting them from
practicing:
1.
Indian Medical Council Act.
2.
Medical Degrees Act.
3 Indian Medicine Central/State Council-Act.
4. Homeopathic Central Council Act.
5. Gvil and Criminal remedies
The existing Legal System
• Against import,
unlicensed drugs-.
manufacture,
sale
of
1. Drugs & Cosmetics Act/Rules
- regulates import/manufacture/distribution/sale.
-allopathic/ayurvedic/homeopathic/unani/siddha.
- specifically prd)ibbs any drug dabrug to prevent or can
AIDS.
-only RMP to prescribe licensed drugs - under
personal supervision of registered pharmacist.
-DCGI powers to seize drugs and cancel license to
manufacture/sell drugs that purport to treat/ cure
disease.
«
The existing Legal System
• Against advertisements:
directly/indirectly, give false
makes a false claim
that mislead,
impression or
1 .Drugs and Magic Remedies
Advertisements) Act, 1954 -
(Objectionable
-specifically prohibits misleading ads relating to drugs
and magic remedies.
-Prohibits ads. lor cure/prevention of “HIV/AIDS"
2. Advertising Standards Council of India (ASQ)
- Binds advertiser/ agency/ media owner.
lawyers collective hiv/aids unit
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
14.03.04-
Lacunae in the Legal System
1. Quacks and quackery not defined.
2. Penalties insufficient
No comprehensive law to deal with quacks.
3.
4. No law prohibiting persons from practicing
magic remedies.
5. Media not covered. To prevent them from
carrying advertisements, articles, etc. claiming
false cures and treatment.
■0
Quackery under the Draft Law
• What is prohibited?
- manufacture
- marketing
- distribution
- provision
- prescription(practice?)
- sale
- claim of cure/prevention
Quackery under the Draft Law
• Of
- Substance
- service or
- therapy
• for the
- cure
- prevention?5
- alleviation
• of medical conditions associated with
HIV/Al DS
LAWYERS COLLECTIVE HIV/A1DS UNIT
4
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Quackery under the Draft Law
• Unless substance etc. has been
- tested/approved/authorised by ICMR/DCGI (?)
and
- person is qualified/bcensed/registered to
manufacture etc.
Issues to consider
• Does this address the gaps in the law?
• How does this impact indigenous systems?
• Impact on general healthcare system
• Penalties?
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
CONSENT
for
HIV TESTING, TREATMENT &
RESEARCH
Draft legislation on HIV/SlIDS
lemyers Collect™ I lll '/.'IIOS Unit
CONSENT
• Based on fundamental principles of
autonomy & bodily integrity -- every person
has the right to determine what should be done to
her/ his body
• Recogniscdln Common Law (medical
situations), Criminal Law (injuries to the
body). Constitution (Article 21 -- Kight io
life & liberty)
CONSENT
Principle set out in law of contract: "when two
or more persons agree upon the same thing in
the same sense"
(Section 13, Indian Contract Act)
Not free when obtained by:
coercion/ Undue Influence/ fraud/ mistake/
misrepresentation
(Section 14, Indian Contract Act)
LAWYERS COLLECTIVE HIV/AIDS UNIT
13.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
HIV Context
• HIX' test/ treatment cannot be treated as any
other diagnostic test/ treatment because:
- HI V is not curable
- other diagnostic tests do not have life
threatening implications
- H1V+ status carries unprecedented stigma
- knowledge of HIV + status may lead a person to
untold trauma
- Toxicity of HIV-related treatment
INFORMED CONSENT in
HIV Context
HIV test/ treatment/ research must be preceded
by informed consent
Informed Consent taken after giving adequate,
accurate information (about the test, treatment and
research) in a lafiguage & manner understood by the
person
INFORMED CONSENT in
HIV Context
Informed consent must be free (i.e. nithont undue
influence, coercion, fraud, misrepresentation, mistake)
Specific consent required (consent to another diagnostic
test or general check up cannot be taken as implied consent to
an Uli/ test)
LAWYERS COLLECTIVE HIV/AIDS UNIT
13.03.04
-REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
13.03.04
PROXY Consent
• Consent from a person’s representative in cases
of:
• death
• incapacity due to minority (if age ar physical/ mental
incapacity
• emergency where person is unconscious or unable
to giie consent
EXCEPTIONS to Consent for
HIV testing
• When ordered by a court
- for determination ofissues, and *
- in the interests ofjustice
• If permitted by a law (?)
• For testing blood, organs, semen & other
body fluids
(in all carts protocolsfor pre c-post-test
counselling and confidentialirc to be followed)
• For surveillance (anonymous
unlinked)
CONSENT under the Draft Law
Recognises right to TlUTONOMYund BODILY
INTEGRITY:
“Every person has the right to bodily and
psychological integrity including the right not to
be subject to medical treatment, interventions or
research without her/his informed consent”
LAWYERS COLLECTIVE H1V/AIDS UNIT
3
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
13.03.04
CONSENT under the Draft Law
• HIV testing can be conducted only:
- for voluntary determination of HIV status
- if medically indicated & in the interest of the
person
• Consent to be
- in writing
tx>af>iiaa>)
- with counselling/provision of information
• Proxy consent
- death/incapacity/emergent, y
- minors — redefining capacity
CONSENT under the Draft Law
Informed consent for:
• HIV testing - after providing'pre- & post-test
counselling
• HIV treatment - after explanation of risks,
benefits and alternatives available
• HIV research • after informing aims, methods,
sources of funding, possible conflicts of interest,
institutional affiliations of tin irsvarchcr, potential
benefits & risks, possible discomfort & the right to
withdraw consent (1G\IR Guideline) beinf. Itfjilaled)
CONSENT under the Draft Law
Exceptions to consent when
- ordered by courts
- allowed by statute
- for testing blood, organs, semen etc.
— for surveillance
LAWYERS COLLECTIVE H1V/A1DS UNIT
4
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
13.03.04
Issues to consider...
For a diagnostic test, should HIV information or
HIV counselling be given?
Should mandatory testing be allowed for
prophylactic purposes-, mtc r. sexual assault,
occupational exposure?
Should pre-/post-test counselling be mandatory,
even when the person voluntarily forgoes it?
Do die provisions address concerns of women esp.
in health care, research settings?
How can VCTCs, path labs, blood banks, home
test kits be regulated!
Issues to consider...
Do the provisions enable children and young
persons to access HIV counselling and testing
services?
Who should be held liable for violations'?
Should penalties be imposed?
How should consent for HIV/AIDS research be
addressed?
Should mandatory testing be allowed under law
(1TPA, JJ r\ct, Prisons r\ct, Cr.P.C., vagrancy acts)?
LAWYERS COLLECTIVE HIV/AIDS UNIT
5
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
IMPLEMENTATION AND
GRIEVANCE RED RES SAL
Draft Legislation on HIV/AIDS
Lawyers Colkctiit HI I /AIDS Unit
Institutional Grievance Redressal
Appointment of Complaints Officer
- Permanent
- Senior Rank
Applicable to?
- All healthcare institutions
- Institution. Venture/organisation earning
on systematic activity with the cooperation of
20/50 persons for satisfaction of human
wants
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Institutional Grievance Redressal
Who can make a complaint?
- Any person whose rights under the HIV/AIDS Act have been violatcd';;or
- her/his legal heirs/representatives
PROCEDURE FOR GRIEVANCE
REDRESSAL
Complaints Officer to:
- Deal with complaints on a daily basis
-Settle complaints in SEVEN DAYS
-Settle complaints relating to healthcare
discrimination, access to health care
sendees or provision of Universal
Precautions in ONE DAY
PROCEDURE FOR GRIEVANCE
REDRESSAL
Person who has violated provisions of the
HIV/AIDS Act to be counseled
immediately.
If violations persist despite counselling
appropriate disciplinary’ action to be
taken
Complainant to be informed about the
action taken
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
14.03.04
Issues to consider
Grievance Redressal by individual or
committee?
Separate persons for internal and external
complaints?
'
Effect of non-compliance: penalties?
Health Ombudsperson
Health Ombudsperson
Why? For immediate redressal for violations
in healthcare sector.
Who? : In a Union Territory person of or above
the rank of the the Joint Director of Health and
Family welfare
In a State District, a person equal or above the
rank of the officer responsible for Health in
such district
LAWYERS COLLECTIVE H1V/AIDS UNIT
3
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Health Ombudsperson
• Powers and functions:
- to inquire and investigate into violations of
Act by healthcare institution or provider
- based on a compliant by
-protected person
-person on her/his behalf
’<■
-organisation representing protected
persons
• suo motu (on his own)
• request by government
• request by court
Health Ombudsperson
Powers and functions:
- to pass orders and/or take actions
- to pass orders for withdrawal/rectification of
breach including directing admission,
treatment, operations etc.
- in emergency, orders may be passed without
hearing - however, parties to bHtcarS *—----subsequently
Health Ombudsperson
• Procedure:
- settle complaints in 7 days
- settle complaints relating to healthcare
discrimination in 1 day
- all proceedings to be Summary
- pass orders which arc^reasonccP) --------
- maintain records
• To report nature and number of
complaints to Government
LAWYERS COLLECTIVE H1V/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
Issues to Consider
What should the effect of non-compliance
of Health Ombudsman order be?
Complaints: letters? Telephonic?
Accessibility issue.
PROCEEDINGS IN COURTS
SPECIAL PROCEDURES
• Suppression of identity
- substituting the name of the HIV positive part}
in a court proceeding with a pseudonym
- trial to be conducted tn camera
- restraining any person from publishing any
matter relating to the disclosure of identity.
• Expediting hearings
- any legal proceedings concerning an HIV
positive person to be taken up on priority basis
lawyers collective hiv/aids unit
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
14.03.04
>
SPECIAL PROCEDURES
Court shall fix a timetable for final
hearing within 90 days of filing such legal
proceedings
timetable fixed so that trial would b;e on a
day to day basis
All interlocutor}- applications to be "■
disposed off in a summary manner
16
SPECIAL PROCEDURES
• Court may pass orders to
- prevent breaches of the provisions of this Act
- redress the breaches of the provisions of this
Act (affirmative action, damages, withdrawal
of breaches,suspend/revoke licence,submit
the matter to concerned police station in case
of criminal proceedings)
SPECIAL PROCEDURES
• In case of discrimination in employment,
courts can order
- reinstatement
- payment of salary/wages/bcnefits etc. that
may have been lost due to the discrimination
- order damages
LAWYERS COLLECTIVE H1V/AIDS UNIT
6
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
14.03.04
SPECIAL PROCEDURES
Burden of Proof
- on the Respondent to prove that the
discrimination did not take place
- Respondent must prove that the act was not
discriminatory
SPECIAL PROCEDURES
• Bail Applications
HIV positive status of a person will be
relevant factor considered while granting
bail
• Sentencing
HIV positive status of a person shall be a
relevant factor while passing orders
relating to fine, suspension or
commutation of sentence of a person.
7
0_eIX____
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
HIV/AIDS COMMISSIONS
Proposal: Tq make NACO/SACS
Statutory bodies
NHC and SHC COMPOSITION
• Central Government
• Representatives from State and Union
Territory
• PLHAs
• Representatives of protected
healthcare providers, NGOs
persons,
• HIV/AIDS experts
Appointment and Advice for NHC
• Nomination Committee for appointment
Prime Minister/The leader of (he Opposition/othcr
parties?
- XGO represcntatives/PLHA
• Advisoty Committee
- Prime Minister/The leader of the Oppo.sition/other parties/
- Minister of Health and Family Welfare
.X’GO representatives
Representative of ICMR/healthcare workers
- Representative uf HIV-positive persons/protecicd persons
- Human rights activist
Epidemiologist.
LAWYERS COLLECTIVE HIV/AIDS UNIT
14.03.04
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
NHC Functions
National HIV/AIDS Policy - review even' 3 yrs
after widespread consultation;
SHCs:
supervise
functioning,
provide
assistance/guidance, co-ordinate
activities,
resolve
disputes,
lay down/modify, in
consultation with them standards for HIV tests,
blood safely, medication, etc., budgetary
allocations, monitor use of funding
Guidelines for registration & support of NGOs
by State/Union Territory Commissions - to be
open to public scrutiny - evaluation of NGOs
(?)
7
SHC Functions
Translate disseminate National
Polio and NHC Guidelines
HIV/AIDS
Report to NHC - co-ordinate with other SHCs.
Conciliation and settlement after inquiry or
report to Government
Establish HIV/AIDS helplines in each district;
Counselling: VCTC, Registration oi
Counsellors, etc.
LAWYERS COLLECTIVE HIV/AIDS UMT
REGIONAL CONSULTATION ON ORAM LAW. BANGALORE
Common Functions
IIIV related Programmes [care, prevention, support]
Training
Capabilities of Government, municipal corporations,
panchayat institutions and leading NGOs
Guidelines for avoidance of acts in violation of Act;
Advisr & report to Government
Review laws and policies
review factors that inhibit rights of protected persons
Strengthen healthcare system
Particular
focus
on
women
-
review
committee/forum to examine impact of
epidemic on women
of
laws,
HIV/AIDS
!«
Common Functions
List of care & support centres, doctors providing care &
treatment for HIV/AIDS, helplines! testing facilities,
legal assistance;
Research in relation to HIV/AIDS;
Surveillance activities?
Collect information on HIV/AIDS, human rights etc ;
Promote, understanding, acceptance and public
discussion of rights of protected persons and of the
provisions of this Act;
Formulation of five year action plan for each
commission - open to public scrutiny
_____
Duty on Commissions to Consult
Commissions to consult governmental and non
governmental organisations.
Call upon public health, human rights, law, HIV
etc. to assist in inquiries.
Community consultation in all phases of
HIV/AIDS
policy
design,
programme
implementation
Establish formal and regular mechanisms to
facilitate ongoing dialogue with community
representatives
Support greater involvement of persons living with
HIV/AIDS-GIPA •
/IIjNS
LAWYERS COLLECTIVE HIV/AIDS UNIT
regional consultation on draft law, bangalore
Issues to Consider
14.03.i.'*4
,
What should their composition be - NGO, civil
society, PLHA representation? Who should
appoint them?
What functions - programmes, IEC, conciliation consultation with NGOs/civil society?
Should the SHCs have the power to;
conciliate?
How to ensure financial commitment from the
government?
How can accountability and transparency be
ensured?
LAWYERS COLLECTIV^HIV/AIDS unit
1 j
«-2> <—■iitl- 'ks-'
—l^p_b l^yuxSjXj. ^Ls.aJLSt p <~J^C l)ito
REGIONAL CONSULTATION ON DRAFT LAW. BANGALORE
PROHIBITION OF UNFAIR
DISCRIMINATION
Draft Legislation on 1IIV/Al DS
Lawyers Collective HIVIAIDS Unit
DISCRIMINATION
DOCTRINE OF CLASSS1F1CA TION
CLASSIFICATION TO BE ON OBJECTIVE
BASIS
OBJECTIVE BASIS MUST HAVE A
RELATIONSHIP TO THE OBJECT
ACT OF DISCRIMINATION SHOULD NOT
BE ARBITRARY
DISCRIMINATION
Concept of discrimination is in Articles 14,
15 and 16 of the Constitution.
'The Stale shall not deny to any person equality before the
law or the equal protection of the laws within the
territory of India. “
These form part of the Fundamental Rights
Chapter (Part III) of the Constitution.
Fundamental rights arc available only
against the State (Article 12)
LAWYERS COLLECTIVE H1V/A1DS UNIT
DISCRIMINATION
• Article 15 = prohibits discrimination
discrimination on the grounds of religion,
caste, creed, sex, colour,etc)
• Article 16 = prohibits discrimination on
the grounds of religion, caste, creed, sex,
colour,etc) in employment
• Articles 15 and 16 available only to
citizens
—g e..
NEED FOR ANTI
DISCRIMINATION LAW ON HIV
• Under the Constitution, State refers to government,
municipal bodies, state controlled bodies &
corporations & bodies created by statute
qiuuxcCf .£<S-t .1 fi .•
1
• Under the Constitution, thereris no remedy for
discrimination by private individuals/bodies
• Private individuals/bodies can only be prevented
from discriminating by specific anti-discrimination
legislation
I
WHAT IS DISCRIMINATION?
• DEFINITION?
• any act or omission including a policy, law,
rule, practice, condition or situation
• which directly or indirectly
• imposes burdens, obligations or disadvantages
on, or withholds benefits, opportunities or
advantages, from,
• any person based on one or more HIV related
grounds
LAWYERS COLLECTIVE HIV/AIDS UNIT
/
/SIGNAL CONSULTATION ON DRAFT LAW, BANGALORE
13.03.04
u
WHO DOES THE LAW APPLY TO?
• STATE
• ‘ANY PERSON’
• PUBLIC AND PRIVATE SECTORS
LAWYERS COLLECTIVE H1V/A1DS UNIT
WHAT SITUATIONS DOES
THE LAW COVER?
• INCLUSIVE
• EXCLUSIVE
• THIS LAW IS INCLUSIVE
EMPLOYMENT
DISCRIMINATION
• DENIAL
• UNFAIR TREATMENT
EMPLOYMENT DISCRIMINATION
• TERMINATION
-SIGNIFICANT RISK
L
- MEDICAL UNFITNESS
- REASONABLE ACCOMODATION
-UNDUE HARDSHIP
-No other ground for discrimination in
employment
LAWYERS COLLECTIVE H1V/AIDS UNIT
4
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
EMPLOYMENT DISCRIMINATION
UNFAIR TREATMENT:
•
•
•
•
•
•
•
•
•
•
•
•
DENIED TERMS/CONDITIONS/BENEFITS/PRIVILEGES THAT
OTHER (EMPLOYEES) PERSONS IN SAME POSITION ENJOY
DENIED PROVIDENT FUND/GRATUITY/I I11ALT II INSURANCE,
NON RENEWAL OF EMPLOYMENT CONTRACT,
PRESSURED IN ANY WAY TO LEAVE EMPLOYMENT,
FORCED RESIGNATION/VRS,
ASKED NOT TO REPORT FOR DUTY',
DENIED PROMOTIONS,
SUSPENDED FROM WORK/DISCIPLINARY ACTION INITIATED
NON-CONDUCIVE ATMOSPHERE FOR WORK.
PREJUDICIAL COMMENTS AND BEHAVIOUR.
PUBLIC IDENTIFIED AS HIV* OR RELATED/ASSOCIATED WITH
HIV
MANDATORILY ISOLATED OR SEGREGATED
”
HEALTHCARE DISCRIMINATION
zP... y tf-VX
• SITUATIONS
• WHAT IS?
• DENIAL/UNFAIR TREATMENT
•
•
MEDICAL TREATMENT IS DENIED FOR THE
FOLLOWING REASONS:FEAR OP OCCUPATIONAL
EXPOSURE/LACK O£ RESOURCES TO PROVIDE
ADEQUATE TREATMENT AND PROTECT ONESELFLAW’PROVIDES FOR RIGHT TO SAFI-. WORKING
ENVIRONMENT
HEALTHCARE DISCRIMINATION
UNFAIR TREATMENT:
• UNTIMELY OR ARBITRARY DISCHARGE
• CHARGING HIGHER RATES
• [IMPOSING CONDITIONS IN THE FORM OF RESEARCH)
• PUBLIC IDENTIFICATION
• PRESSURE TO LEAVE THE HEALTHCARE INSTITUTION
• UNDIGNIFIED TREATMENT OF A CORPSE
• REFUSAL TO TREAT
• INAPPROPRIATE TREATMENT
• PHYSICAL ISOLATION IN WARDS
• EARLY DISCHARGE
■ DELAYS IN TREATMENT
. CONDITIONAL TREATMENT
. PREJUDICIAL COMMENTS & BEHAVIOUR
LAWYERS COLLECTIVE HIV/AIDS UNIT
UX
L
■
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
OTHER SITUATIONS
• EDUCATION
• RESIDENCE
• TRAVEL
• ACCESS TO SERVICES
• ACCESS TO INSTITUTIONS
• INSURANCE
PROHIBITION OF HATE
PROPAGANDA
Cannot PUBLISH, ADVOCATE,
COMMUNICATE etc. MATERIAL on
HIV related grounds, that is:
- hurtful
- harmful/ incites harm
- promotes hatred/ exposes to hatred; or
- shows an intention to unfairly discriminate
against any PERSON OR GROUP
17
IT IS IMPORTANT TO UNDL.RSI XNDTIIAI
DISCRIMINATION IS SPECIFICALLY
LINKED TO Till-. HIV CONTEXT
THESE ARE ONLY SOME OF THE
SITUATIONS OF DISCRIMINATION A
PROTECTED PERSON IS LIKELY TO
FACE AND ANY OTHER ACT OR
OMISSION THAT DISCRIMINATES IS
ALSO PROHIBITED.
LAWYERS COLLECTIVE HIV/AIDS UNIT
13.03.04
l-k
REGIONAL CONSULTATION ON DRAFT LAW, BANGALORE
rl^0' I h
ISSUES FOR CONSIDER A TION
• DOES THIS COVER ALL SITUATIONS?
- WOMEN
- CHILDREN
- HOME
- PARTIES
-NGO»
- INSURANCE
• SHOULD THE PROHIBITION ON HEALTHCARE
DISCRIMINATION EXTEND BEYOND THE HIV
CONTEXT?
• DOES THIS PROPERLY ADDRESS
DISCRIMINATION IN THE PRIVATE SECTOR?
(kc_e_lVG
CONSULTATION .QN..THE DRAFT LEGISLATION QN Hiy/AIDS
evaluation form
13d' & 1411' March, 2QQ4
Hotel Bangalore International, Bangalore
Please rate the following on a scale of 1 - 5 with 5 being the highest score, and 1 the lowest.
1.
PROGRAMME EVALUATION
a.
Was the agenda complete and satisfactory?
b.
Were the sessions useful?
d.
Was there adequate time for discussion?
e.
Were the discussions effective?
f.
Was it a fruitful exercise to have a consultation to
discuss the draft legislation on HIV/AIDS?
g.
Any other suggestions or comments about the consultation?
2.
WORKSHOP ADMINISTRATION
a.
Hotel arrangements
b.
Food arrangements
c.
Helpfulness of HIV/AIDS Unit staff
AVERAGE RATINGS
-3
Agenda
Regional Consultation on Draft Legislation on HIV/AIDS
Hotel Bangalore International, Bangalore
13-14 March 2004
Day 1
8.30 am onwards
Registration
9.30 - 10.00 am
Inaugural Remarks
Vandana Gumani, IA S, Project Diiector, KSA PS
Welcome and Background
(Process & rights-based approach)
Anand Grover, Project Director, Lawyers Collective HIV/AIDS
Unit
Introduction of participants
10.00- 10.15 am
Open Blouse
10.15 - 11.00 am
DISCRIMINATION
11.00- 11.30 am
Open House
11.30 - 11.45 am
Tea
11.45 - 1.15 pm
Group Discussions on DISCRIMINATION
1.15- 2.00 pm
LUNCH
2.00 - 2.30 pm
CONSENT
2.30 - 2.45 pm
Open House
2.45 - 3.45 pm
Group Discussions on CONSENT
3.45 - 4.00 pm
TEA
4.00 - 4.30 pm
DISCLOSURE OF INFORMATION
4.30 - 4.45 pm
Open Blouse
4.45 - 5.45 pin
Group Discussions
INFORMATION
5.45 - 6.00 pm
Feallxtck & Wrap up
on
DISCLOSURE
OF
Dav 2
10.00 - 10.45 am
IMPLEMENTATION, GRIEVANCE REDRESSAL & REMEDIES
10.45 - 11.00 am
Open House
11.00- 11.15 am
TEA
11.15- 12.30 pm
Group Discussions on IMPLEMENTATION, GRIEVANCE
REDRESSAL & REMEDIES
12.30-1.15 am
ACCESS TO TREATMENT & PROHIBITION OF QUACKERY
1.15 - 1.45 pm
Open House
1.45 - 2.45 pm
LUNCH
2.45 - 3.15 pm
RISK REDUCTION AND SPECLAL PROVISIONS
3.15 - 4.00 pm
Open House
4.00 - 4.15 pm
TEA
4.15 - 4.30 pm
INFORMATION, EDUCATION & COMMUNICATION
4.30 - 5.15 pm
Open House
5.15 - 5.30 pm
Feedlxick & Wrap up
LAWYERS COLLECTIVE HIV/AIDS UNIT
The Lawyers Collective has, with the support of the European Commission, instituted an HIV/AIDS Unit
to provide legal aid and allied services for people affected by HIV/AIDS, The Unit also has an extensive
advocacy and research & policy initiative. It conducts workshops on legal and ethical issues relating to
HIV/AIDS for people living with HIV/AIDS, the legal community, policy planners (legislators,
administrators, government officials), the judiciary, trade unions, employers, activists and organizations
working on HIV/AIDS-related issues and the general public with special emphasis on marginalised groups.
Its legal aid and advocacy initiatives are complemented by its research work that aims to influence policy
and law reform.
The Unit believes that the protection of human rights is central to an effective response in controlling the
spread of HIV/AIDS.
The main objective of the Unit is to protect and promote the fundamental rights of people'affected by
HIV/AIDS, which may have been denied in areas such as:
•
Healthcare
•
Employment
•
Housing
•
Terminal dues such as gratuity, pension
•
Rights to informed consent, privacy and confidentiality
•
Marital rights relating to maintenance, custody etc.
•
Education
•
Information and other services
•
Insurance
The Unit also initiates public interest litigation on the following:
•
Public Health issues like access to treatment
•
HIV/AIDS education and awareness issues
•
Gender issues ~ issues relating to women
•
Safe blood supply
•
Access to and quality of healthcare services
•
Decriminalization of homosexuality
•
Protection of sex workers
•
Quacks
People affected by the HIV/AIDS seeking legal aid, advice and support including organizations,
individuals, members of the legal community, NGOs in need of informational support and other services
related to their work with HIV/ AIDS are encouraged to contact us at:
Lawyers Collective HIV/AIDS Unit (PMU)
7/10 Botawaila Building, 2nd Floor
Hornimat’ Circle, Fort
Mumbai - 400 023
India
Lawyers Collective HIV/AIDS Unit (PO)
63/2 Masjid Road, 1” Floor
Jangpura
New Delhi-110 014
India
Tel: 91-22-2267 6213/9 Fax: 91-22-2270 2563
email: aidslaw@vsnl.com
website: www.lawverscollective.org
Tel: 91-11-2432 1101/2, 2431 6925
Tel/fax: 91-11-2432 1101
email: aidslawl@ndb.vsnl.net,in
Anand Grover
Project Director
Vivek Divan
Project Coordinator
rrterr by lire European Cammi1
NEWSLETTER # 16
POSITIVE
MARCH 2003
___________
"[M]edical treatment for many conditions costs more than most people can
afford ... when dealing with chronic illnesses like AIDS ... larger
aggregations of resources are required, and insurance companies constitute
one of the primary means of creating such aggregated funds."
Mark Scherzer, 'Private Insurance'
from AIDS Law Today edited by Scott Burris et al
SOCIAL SECURITY AND HIV/AIDS
Sa»al security is an instrument that enables society to protect
irWRiduals against distress in situations of ill health, infirmity, old
age and death. Over the past two decades developing countries,
which already fare poorly on health and development fronts,
have been experiencing much of the burden imposed by the
HIV/AIDS epidemic. Repeated illnesses, costs of treatment and
medical care, loss of wagesand livelihoods pushes people living
with HIV/AIDS (PWA), caregivers and survivors into poverty and
deprivation. In this context, social security measures can go a
long way in reducing HIV/AIDS related morbidity and mortality
and easing the encumbrance on affected individuals and
households. This edition of Positive Dialogue profiles some of
the social security measures in India and examines their provisions
in the context of HIV/AIDS.
The Employees State Insurance
Scheme - an overview
The Employee State Insurance Scheme (ESIS) is an important
serial security measure for workers in India. The scheme was
iOiduced under the Employees' State Insurance Act, 1948 (ESI
Act) with the aim of providing benefits to employees and their
families in the eventuality of sickness, injury and maternity. Towards
this objective, the scheme provides a range of medical services
and cash benefits to employees and dependants' insured under
the scheme when they are ill or incapacitated and unable to
work. In the context of HIV/AIDS, the scheme assumes immense
significance not only because it is one of the few insurance
mechanisms that provide comprehensive treatment for HIV/AIDS
including anti-retroviral medication (ARVs) but also because it
offers much-needed protection from destitution to HIV-positive
employees and their families.
Nature of the scheme
The ESIS is a contributory scheme based on the principle of
pooling risks and resources on a tripartite basis in order to offer
security to workers. The scheme operates with economic
contributions from employees, employers and the government
with the employees' share being 1.75 % of the wages, the
employers contributing 4.75 % of the entire wage bill and the
government bearing 1/8 share of expenditure on health services
with a maximum of Rs.600 per person per year. The onus of
collecting both the employer and employee's contribution is on
the former. These are paid into the ESI Fund, which is administered
by the ESI Corporation and are expended for provision of medical
services to insured persons and their families and payment of
cash benefits Io insured persons.
Applicability of the ESI Act
The ESI Act applies to all factories that are engaged in
manufacturing and employ more than 1 0 persons (with the aid
of power) or 20 persons (without the aid of power). The scope of
the scheme has been expanding over the years and
establishments such as shops, hotels, restaurants, cinemas,
transport undertakings have also been covered. The scheme
covers employees earning less than Rs.6500/month. Further,
employees earning an average daily wage of less than Rs.40
are exempted from making a contribution but are entitled to all
benefits under the scheme. By the end of 2002, it was estimated
that the ESIS provided insurance coverage to over 8.6 million
persons besides providing medical and cash benefits to over
33.4 million individuals (including family members of insured
workers). Yet, a critique of the scheme has been that in a
population of 1 billion Indians, the ESIS has not reached out Io
the optimum extent.
For delivery of health care services, the ESIS has a widespread
network of medical facilities including dispensaries, panel clinics,
diagnostic centres and hospitals. The ESI Corporation has tieups with public and private healthcare institutions for providing
specialised care and treatment that are not available within the
ESIS.
Natatne off services arad berseffiis availaSaSe
The ESIS encompasses a range of medical services, cash benefits
and other relief.
- Medical benefits include all aspects of prevention, treatment
and care - diagnostic services, inpatient, outpatient and
domiciliary care and free supply of drugs and dressings. These
services can be availed by insured persons and dependants,
which may include spouse, children below the age of 18
years and parents.
- Sickness benefits include the provision of cash to insured
persons in the event of sickness resulting in absence from
will continue to be given the same even if s/he is excluded from
work and possible loss of eamings. The cash is payable upon
production of medical records certified by an authorised
the scheme's coverage.
physician at a standard rate which is not less than 50 percent
of the wages. The maximum duration till which sickness
benefits can be availed is 91 days.
Extended sickness benefits are payable in cash at an amount
equal to 70% of daily wages to persons inflicted with any of
the 34 infections listed in the schedule to the Act after they
have exhausted sickness benefits. This list includes
Tuberculosis and AIDS. The maximum period for which
benefits can be availed is upto 2 years.
Other benefits include maternity benefits, enhanced sickness
benefits, disablement benefits (for persons who suffer from
occupational diseases), dependant's benefits and funeral
benefits.
Provisions of the ESHS applicabte m the
context of HIV/AIDS
Overall, the ESIS provides various measures for relief and security
to workers, many of whom are in the lower economic strata.
Lack of access to resources and services compounds vulnerability
of poor working classes particularly in situations of ill health and
infirmity resulting in loss of livelihood. In the context of HIV/
AIDS, the burden on affected workers and theirfamilies increases
due to lack of access to timely and adequate treatment. Further,
frequent spells of sickness due to HIV/AIDS-related medical
conditions, especially in the absence of ARVs for PWA and the
subsequent debilitation of bread earners leave families affected
by HIV/AIDS in the clutches of debt and on the brink of destitution.
In this regard, coverage of HIV-positive workersand theirfamilies
under the ESIS helps alleviate some of the hardships imposed by
the epidemic and enables affected individuals and families to
cope with the same. Some of the provisions under the scheme
that afford protection, security and support to insured workers
include:
Provision of treatment including ARVs
Workers' insured under the ESIS are entitled to medical services
and treatment for all conditions including HIV/AIDS. In the context
of HIV/AIDS, the scheme not only provides treatment for
opportunistic infections and other HIV-related illnesses but also
provides ARVs to insured persons if these are prescribed by the
treating physician. Under the Act, the ESI Corporation is obligated
to provide treatment to all insured workers'and their dependants
and cannot refuse treatment including supply of medicines for
any medical condition even if the drugs are prohibitively
expensive. According to information available from the ESI
Corporation, by the end of 2002, a total of 65 persons across
the country were being provided with ARVs under the scheme.
Another related practice in the context of treatment is that in
case a person insured under the scheme gets excluded from its
coverage for any reason, the treatment regimen of the person
provided under the scheme continues as long as the sickness/
condition persists. Application of this principle in the context of a
PWA receiving ARVs under the scheme implies that s/he will
continue io get the medicines even if s/he gets excluded from
coverage under the scheme, since once initiated, ARV therapy
must continue for life. It should be noted that the ESI Corporation
is reconsidering this position in the context of chronic conditions
like HIV/AIDS although as of today, a PWA, if initiated on ARV
As regards availability of equipment for monitoring ARV therapy
such as CD4 tests, viral load etc., medical amenities available
with ESI hospitals are not state of the art though, according Io
ESI officials, the Corporation is in the process of upgrading
services. Further, administrators maintain that non-availability of
equipment for monitoring treatment is not a hindering factor for
providing ARVs and that the ESI Corporation has arrangements
with other institutions where such facilities are available.
Theoretically, therefore, the ESIS upholds the fundamental right
to health of all persons including PWA, by providing treatment
and medication. This is in sharp contrast to the National AIDS
Prevention and Control Policy (NAPCP), which justifies not
providing life-prolonging treatment to PWA on grounds of "their
prohibitive costs on account of indefinite period of treatment
and other supportive investigations required for monitoring the
progress of the disease".
Availability of cash benefits for PWA
Under the scheme, persons incapacitated by medical conditions
are entitled to receive cash benefits so that they are not rendered
destitute. This is a very significant provision for PWA, since it
provides economic security to them and their families in the
eventuality of HIV-related illnesses. Further, the extended sickness
benefits available under the scheme specifically apply to PWA
who are entitled to receive cash benefits for a period of 2 years
of continuous sickness, thereby protecting households from
indigence when the earning member is afflicted with AIDS.
Non discrimination in employment
To a limited extent, the ESI Act also safeguards the right to
employment of employees debilitated by sickness, injury or
disability. Section 73 provides that an employer cannot dismiss,
discharge, reduce or punish an employee who is receiving
sickness benefits or is under medical treatment or is absent from
work as a result of a sickness. Although this does not go far
enough to protect the right of PWA to work, it does prou^e
some statutory protection to insured PWA from discnmincEy
practices including termination and diminution in wages during
the period of ill-health.
Protection of confidentiality of medical history including HIV status
The ESI scheme has procedural safeguards for protecting
confidentiality of an employee's medical condition while claiming
benefits. As a practice, ESI records do not divulge the employee's
medical condition on the document, which is to be shared with
the employer. The medical certificate merely states "unable to
work on medical grounds" along with a period for which sick
leave is required. This institutional practice of protecting
confidentiality of patients' health status from the employer has
immense importance in the HIV/AIDS scenario, where PWA
commonly experience stigmatisation and discrimination at the
work place because of disclosure of HIV status to the employer
and fellow workers. It further enables PWA to claim entitlements
without fear of disclosure.
Lessons io be learnt from the ESHS
The NAPCP notes that "the large network of ESI hospitals and
dispensaries under the scheme should be effectively used for
spreading the message of prevention of the disease and providing
services to HIV/AIDS infected workers and families". While the
Government of India has hailed ESIS as one of the most
comprehensive social security instruments for workers, sadly, the
provisions ot the scheme which afford treatment, security and
support to individuals and households affected by HIV/AIDS have
not been embraced in the national response to the epidemic.
The contributory insurance model that has been utilised by the
ESIS to provide expensive medication including ARVs to PWA,
apart from other measures for monetary support, has neither
been examined nor explored in the national HIV/AIDS
programme.
Notwithstanding gaps in service delivery, the ESI model of sharing
burden to provide benefits to insured persons deserves closer
examination while evolving responses to mitigate the impact of
HIV/AIDS on individuals, families and communities. This
contributory model goes a long way in enabling PWA to realise
their rights including the right to access treatment, employment,
social security and insurance services. In this context, the scheme
offers valuable lessons to government agencies, employers'
bodies, insurance providers and AIDS service organisations, for
v|^n, unaffordability and financial non-viability have, until
now, posed a major challenge in responding to the overall needs
of PWA.
The Central Government Health
Scheme (CGHS)
Government jobs in India are much sought afterforthe security
that they offer by way of employment and other benefits
attached to the job. These benefits sometimes include health
services. One such scheme implemented by the central
government for its employees is the Central Government
Health Scheme (CGHS). All central government employees,
presently serving and pensioners, can enrol for the scheme
by contributing a minimum amount between Rs.5 to Rs. 150
per month to become a cardholder, which entitles them to
health services under the scheme. This scheme also covers
families (beneficiaries) of central government employees,
presently serving or retired. The government estimates (2000
jAfcres) that the scheme covers 9,62,824 cardholders and
^^42,491 beneficiaries. Under CGHS, the government has
set up a network of 241 dispensaries in major cities and
townships in India where central government offices are
located. Dr. Hazarika, Additional Director, CGHS informed
Positive Dialogue that a cardholder or a beneficiary under
the scheme can avail of free medicines, outpatient care from
the dispensary in his/her area and hospitalisation from a
CGHS-recognised hospital.
Treatment for HIV/AIDS
In the context of HIV/AIDS, Dr. Nongpiur, Director, CGHS
(India), confirmed that ARVs and medicines for opportunistic
infections (Ols) were available under the scheme. Dr. Hazarika
recognised that one of the most important issues for PWA is
access to medicines, both ARVs and drugs for the treatment
of Ols. In this context, he explained that CGHS had no ceiling
on cost incurred for medicines provided to the employee or
his/her family through the scheme.
Dr. SR Koranne, Medical Officer-in-charge, CGHS Dispensary,
Jungpura, New Delhi elaborated that if the dispensary was
not equipped to treat the patient, s/he is referred to a
government hospital. All drugs prescribed by the hospital are
then provided to the patient by the dispensary. If the required
drugs are not available with the dispensary, they are procured
through a chemist authorised by the government and provided
to the patient.
Despite providing a variety of medical benefits described
above, the WHO (WHO/SEARO, Regional Health Forum:
Volume 4, Number 1 &2, 2000) has indicated that the quality
and delivery of services under the CGHS is poor. Besides
improvement in the quality of services, adherence to legal/
ethical standards i.e. ensuring confidentiality and an enabling
non-discriminatory environment are essential for encouraging
PWA to access health services under the scheme. In India,
such schemes under which a wide network of health
infrastructure has already been set up, provide an opportunity
for disseminating essential sexual health information,
promoting voluntary testing and providing appropriate care
and support to PWA.
DRAFT LEGISLATION on HIV/AIDS
Lawyers' Collective HIV/AIDS Unit has been requested by Kapil
Sibal, Member of Parliament and the National AIDS Control
Organisation (NACO) to prepare a draft legislation on HIV/
AIDS for presentation to Parliament. This initiative has received
the commitment of resources from the Indian government.
We are very excited about this opportunity but also feel a
great sense of responsibility toward civil society in ensuring
that its concerns are reflected in the law.
As we commenced on this task we felt the need to begin by
undertaking a comprehensive examination of legal
developments around HIV/AIDS in other countries in order
to contextualise the Indian experience within the global picture
of the pandemic and borrow from other legislative experiences
Io create the basis for a draft legislation for India. This work
has led us to preparing Background Papers on the legal, ethical
and human rights issues that HIV/AIDS has raised over the
course of the epidemic. At present we continue to work on
these papers. The next phase of the process is drafting the
legislation, which will be based on human rights models
present worldwide with particular emphasis on common law
regimes that are similar to India. Protecting and promoting
the rights of PWA, as well as those affected by the epidemic
and those most vulnerable to it, is central Io creating an
environment whereby stigma, violence and inequity is reduced,
if not eradicated. It has been observed and established that
the creation of a non-discriminatory environment based on
principles of human rights is the best public health strategy in
controlling the spread of HIV/AIDS. Thus, the goal for the
process we are undertaking is to create a comprehensive law
which protects the rights of PWA as well as has the scope
to provide anti-discrimination protections for other
marginalised groups.
We recognise that any legislative measure that attempts to
address the prevention of HIV infection and mitigation of the
impact of the epidemic must be informed by the experiences
of people living with and working in the field of HIV/AIDS.
With this in mind, the Unit proposes to conduct a Nationwide
Consultation on the draft legislation on HIV/AIDS by involving
and learning from representatives of the various sectors that
are impacted by the epidemic. The consultation process, which
is scheduled to take place between from May/June 2003, is
envisaged to entail three different processes in order to be
able to exchange views with the widest spectrum of individuals
rights in areas such as:
and institutions as feasible. These are:
•
•
•
•
Health care
Employment
Terminal dues like gratuity, pension
Marital rights relating to maintenance, custody etc
>• 2 National Consultations: Focusing on PWA and on
representatives from vulnerable communities (MSM, Sex
o
Housing
Workers, I DU etc.)
>■ 6 Regional Consultations: Focusing on individuals,
institutions and other stakeholders in HIV/AIDS-related issues
(NGOs working on HIV/AIDS and/or related issues such
as women's issues, healthcare institutions/workers, trade
unions, management, educational institutions etc.)
>• 'Call-for-comments' Consultations: These will be done
through our website (www.lawyerscollective.org), by email
and by posting the Background Papers with the Draft
Legislation to individuals and institutions who would like to
express their views but may not be able to attend the
The Unit is involved in initiating public interest litigation on issues
like the right to marry, confidentiality, access to health care, safe
blood supply, quacks, etc. Lawyers Collective HIV/AIDS Unit also
conducts workshops on legal and ethical issues relating to HIV/
AIDS for people living with HIV/AIDS, lawyers, judges, health
care providers, NGOs etc.
Please send your comments and queries to the addresses
given below. Those affected by HIV/AIDS seeking legal aid,
advice and support are welcome to contact us at:
Lawyers Collective HIV/AIDS Unit
Programme Management Unit
meetings.
After the consultations we will integrate the feedback into the
draft legislation and annex the report of the entire consultation
to the draft itself. We feel that one of the most critical aspects
of successful rights-based HIV/AIDS legislation is the
involvement of an informed civil society committed to broad
based community mobilising on these issues. To this end, we
hope that you and all your colleagues will participate actively
in this process to ensure the creation of a law that meets the
needs of the people it affects most. We will be sending periodic
updates on the consultation and other processes as the logistics
are finalised. Please feel free to pass this information on to
individuals or organisations that may be interested in this
process and would like to contribute in some form.
Contributions: Tripti Tondon, Leena Menghaney and Vivek Divan
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Lawyers Collective HIV/AIDS Unit provides legal aid and allied
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POSITIVE
NEWSLETTER # 15
DECEMBER 2002
"Rather than requiring that people seeking marriage licenses be tested for
HIV, states should focus on education, e.g., providing marriage applicants
with AIDS education materials. Education should emphasise the importance
ofprevention and voluntary testing."
From 'Mandatory Pre-marital HIV Testing: A Record of Failure'
An American Civil Liberties Union Report, March 1998
MANDATORY PRE-MARITAL TESTING
TThe National AIDS Prevention & Control Policy of the Indian
ij^mment clearly mandates voluntary testing as the appropriate
2. Testing persons for HIV mandatorily in the pre-marital situation
Health Minister has been quoted recently reaffirming this stand.
does not fulfil the objectives sought to be achieved at an individual
level. Also at a public health level, mandatory testing for HIV has
negative public health consequences. This is mainly because of
On the other hand there have been opposing views expressed
the following reasons:-
at the governmental level in other parts of the country particularly
(a) The most common way of testing for HIV is through an
antibody test. However, the peculiarity of an HIV antibody test is
public health strategy in dealing with HIV/AIDS and the Union
favouring mandator/ pre-marital testing for HIV These have been
voiced recently in the Goa legislature and by the Andhra Pradesh
legislature and reported in the press. Lawyers Collective HIV/
AIDS Unit believes that such a proposal will have a deleterious
impact on India's efforts to contain HIV/AIDS and that such a
strategy is based neither on sound public health nor human
rights visions. In light of this, the Unit wrote to the executive and
legislative representatives in Goa and the Chief Minister of Andhra
Pradesh explaining its reasons for opposing such a proposal
the "window period”. The "window period" is one in which even
though a person is infected with HIV, s/he would be tested
negative as her/his antibodies are not developed. Therefore,
even though a person is infected with HIV, s/he will test HIV
negative. Therefore, a single antibody test for HIV does not serve
the purpose of preventing the prospective spouse from getting
infected. Therefore, mandatory testing would not result in
achieving the objective sought to be achieved.
and requested a rethink on this issue. Reproduced in this edition
(b) It may also be noted that there is also a high rate of false
of Positive Dialogue is Lawyers Collective HIV/AIDS Unit's letter
positive results in the country and persons may not actually be
infected. Thus, in view of the stigma surrounding HIV, a person
who is actually not HIV positive could be marred for life on account
of a false positive result and may not be able to marry at all. This
would have a traumatic effect on her/ his life and on her/
to the Chief Minister of Andhra Pradesh that awaits a response:
The Hon'ble The Chief Minister,
Shri Chandrababu Naidu,
Andhra Pradesh
Dear Sir,
This is with reference to make HIV testing compulsory for couples
before marriage, as was reported in Aaj Tak on September
18,2002.
1, We appreciate that a policy io mondatonly lest couples before
marriage could be motivated out of the concern to protect the
prospective spouses of persons living with HIV from acquiring
the disease, thereby, as a public health initiative trying to reduce
and prevent the spread of the disease. However, we would like
his family.
(c) Mandatory testing for HIV prior to marriage would only give
the state a false sense of security and a false belief that the
infection is being effectively prevented from spreading.
(d) A pre-marital HIV mandatory test does not prevent persons
from getting infected after marriage, and thereby putting the
spouse at the risk of getting infected.
(e) A pre-marital HIV test would not really prevent the spread of
infection to the unmarried sexual partners or the needle-sharing
partners of the person affected by HIV
(f) For reasons stated above, mandatory testing for HIV before
marriage does not really serve the purpose of preventing the
spread of the disease, as such a policy does not consider sexual
relations prior to marriage and extra marital relations.
to bring to your notice a few issues and concerns for individuals
and the public that arise in mandatorily screening couples before
marriage for HIV which would be counterproductive at an
3. This apart, a pre-marital mandatory HIV testing policy
would tend to have negative public health consequences, in the
individual level as well as a public health level.
following manner:-
(a)
Mandatory testing would only drive tne disease underground.
Not many persons are aware of HIV, the nature of the disease,
the testing methods, the methods of transmission of HIV, etc.
Due Io the ignorance, there is fear even to get an HIV test done.
There is a lot of stigma attached to the disease, which ostracises
persons living with HIV from their community and prevents them
people and to counsel women about HIV, of the adolescent stage,
thereby helping them to prevent themselves from getting the
infection. This is the real challenge. It is difficult but possible. A
determined legislative action can really emancipate women,
thereby helping them to prevent themselves from getting
the infection.
Therefore, if the same funds are allocated in spreading
from getting any support. Mandatory resting would only dissuade
(c)
people from getting their tests done. This is against the National
information about prevention, safe sex, and emancipating
AIDS Control Organisation (NACO) policy on testing, which
women, educating women and the girl child, and in removing
encourages voluntary testing after pre-test counselling. Mandatory
testing would actually only drive the disease underground and
prove to be a more cost-effective public health strategy. It would
would be very costly for the state in the long run.
then encourage people to voluntarily test themselves prior to
(b) Further, this would only have the consequence of people going
outside the State to marry, where such tests are not required.
getting infected. This could prove to be an effective policy in
(c) Pre-marital mandatory testing for HIV would be a myopic
policy, as if does not take into consideration infection after
the ignorance and bias attached to HIV, it would in the long run
marriage and help people from protecting themselves from
reducing and preventing the spread of the infection in the
long run.
marriage, infection to sexual partners and needle sharing
partners. Therefore, from a public health perspective it does not
really prevent the spread of rhe disease.
(d)
Mandatory testing often ignores issues of consent and
confidentiality of a person's HIV status. This again would have a
negative public health impact as people would lose their faith in
the health system of the state.
(e)
Mandatory testing could also open a racket of issuance of
5.
The American Civil Liberties Union Report of March 1998
reported that mandatory pre-marital HIV testing was a record of
failure. It stated that more than 30 states in the USA considered
pre-marital HIV testing. However, all the states except for lilies
and Louisiana rejected the idea. Illinois and Louisiana enaOTcf
and enforced mandatory pre-marital testing, but subsequently
repealed them. In Utah too, a state in the United States ofAmerica,
there was a legislation making a marriage to an HIV positive
false certificates prior to marriage, thereby having a negative
person void. However, the legislation in Utah was reversed as it
impact on the entire public health system.
was against public policy and they amended the same making
(f)
such marriages valid. Please find enclosed the relevant documents
Mandatory pre-marital testing for HIV could prove to be a
very costly public health strategy for the state, as repeated tests
for your kind perusal.
require to be undertaken for confirming the positive status of a
person. This could drain out the funds substantially.
(g)
In most personal laws marriages are not required to be
6.
Thailand has been able to control the spread of HIV infection
through intensive dissemination of information, education and
registered. Thus, for example, a Hindu marriage can be
communication. Condom usage was encouraged in all
solemnised only by performing ceremonies. No registration is
awareness campaigns, thereby increasing the rate of condom
required. Therefore, a policy for mandatory testing would be
usage and drastically bringing down the rates of HIV and
impossible to implement.
STD infections.
4.
Successful public health strategies are those that have
7.
We therefore request you not to pass any legislation to make
optimally utilised the scarce resources, both infrastructural and
pre-marital HIV testing mandatory which could have a neg^hj?
financial resources, in empowering and encouraging women to
impact on public health and on the individual, but to re-thinKof
prevent themselves from getting infected. It is not our intention
the strategies that would empower women so that they can
to suggest that a woman (or any prospective spouse) does not
have the right to ask for an HIV test. The question is that should
effectively prevent the spread of HIV infection in the population.
if be done by making it mandatory or by empowering women so
Thanking you,
that they can themselves decide.
(a)
Women are vulnerable to HIV infection within and outside
Yours truly,
the marital setting. If is easy to pronounce a policy of pre-marital
testing for the ostensible reason that it will prevent women from
getting infected. Pre-marital testing is an easy way out. However,
Anand Grover
such a policy will only give a false sense of security. It will not
Project Director
empower women Io negotiate sexual relations, which is what is
really required i.e. the empowerment of women to prevent
cc: Andhra Pradesh State AIDS Control Society
infection. But mandatory pre-marital testing does not really
prevent women from getting infected, it does not give information
to women about HIV, about safe sexual practices, it does not
Enclosed:
1.
empower them, it does not emancipate women. A policy that
would actually empower women so as to prevent themselves
from getting infected is difficult to implement and sustain.
(b)
The policy required today is to impart information, educate
A letter written by UNAIDS, by Susan Timberlake, Human
Rights Adviser, Policy, Strategy and Research, Io Ms. Marina
2.
Mahathir, Malaysia.
Mandatory Pre-Marital HIV Testing - An American Civil
Liberties Union Report, March 1998.
3.
Utah Code.
Supreme Court of India restores HIV+ person’s Right to Marry
mnrru Th e r
•
Supreme Court of Indio passed an order in a case related to the issue of an HIV+ person's right to
” . e as Tl e
Y <^yers Collective HIV/AIDS Unit on behalf of its client Mr. X, seeking clarifications and challenging
9 ®n' ot e upreme Court in the case of Mr. X v Hospital Z in 1998 wherein the court had suspended the right of PWA
to marry, although this was never an issue before it.
fi
i
In this order the Supreme Court held that all observations relating to marriage in Mr. X v Hospital Z in 1 998 were not warranted
as i ey were not issues before the Court. The Supreme Court did, however, state that it's pronouncements regarding the role of
(MSPy,a S
1710 6 °'sc'osure
status in Mr. X's judgment remain as they were made regarding an issue before it in the case
(Mr. Xs case concerned the issue of breach of confidentiality of the petitioner's HIV+ status by a hospital blood bank to the
relatives). In effect, therefore, the Supreme Court's judgment in Mr. Xv Hospital Z to the extent that it suspends the right
o
to marry is no longer good law. The right of an HIV + person to marry is restored. However, this does not take away from
t e duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage.
We are happy to convey this positive order of the Supreme Court and extremely pleased that the rights-based approach to HIV/
AIDS has received further support and PWA rights have been strengthened. This is the only effective way in dealing with HIV/AIDS
- taking away rights only strengthens stigma and fear, protecting and providing them strengthens understanding and empowerment.
Violence against sex workers
continues
^fer the incident in Nippani, Karnataka earlier this year
(reported in Positive Dialogue #13), where sex workers
belonging to Veshya AIDS Mukabla Parishad (VAMP) were
harassed and abused by police while carrying out HIV/AIDS
prevention work, yet another horrific incident of violence
against women in sex work has come to light. This time the
targets were sex workers from the Durbar Mahila Samanvay
Committee (DMSC), the largest organisation of sex workers
in the region with over 60,000 members.
In August 2002, Rekha, a sex worker, was severely beaten up
by local hoodlums in the Tollygunj red light area in Kolkata
for having a public altercation with her husband. When
Swapna, the President of DMSC protested and lodged a
complaint with the police, the same gang publicly attacked
her for "daring to involve outsiders in an infernal matted.
Policemen on duty were silent spectators to the incident and
refused to file a FIR.
j^DMSC organised a rally of more than 3000 sex workers
from all over the state to protest against the violence and
inaction of the police. They also registered complaints with
State agencies, including the Government of West Bengal,
the State Human Rights Commission and the State Women's
Commission. Since then two of the three assailants have been
arrested while one is still absconding. The local goons persist
in threatening Swapna, who has been rendered shelterless,
and other members of DMSC. Following threats and coercion,
the STD clinic run by DMSC has been shut down and has
ceased to function. Needless to say, the HIV/AIDS prevention
intervention programme has been adversely affected.
This is not just a stray incident of violence against individual
sex workers but a deliberate attempt to undermine the
collective leadership of sex workers represented by DMSC.
The organisation's role in implementing effective HIV/AIDS
interventions in Sonagachi, Kolkata have been acknowledged
at national and international levels. The self-regulation
mechanisms introduced by DMSC to address exploitation
including entry of children and other unwilling persons within
the sex industry have been an unparalleled initiative. Above
all, DMSC's untiring efforts in organising sex workers fortheir
rights and building a movement against exploitation has
continued to enthuse and inspire human rights activists,
organisations working on HIV/AIDS and other marginalised
communities all over the world.
The incident once again points to the failure of state agencies,
particularly the police, in safeguarding fundamental rights of
women in sex work including the right to life and protection
of law. Besides disrupting health and HIV/AIDS interventions
such incidents result in destabilising movements for human
rights by marginalised and minority communities. The time is
overdue for the state to take responsibility in protecting the
lives of women in sex work and ensuring that their
disempowerment and abuse ceases.
Weatmerat Access - posoiove
developments
Thailand, October 1,2002 - People living with HIV/AIDS in
Thailand won a precedent-setting court case in Thailand's
Central Intellectual Property and International Trade Court
(CIPITC) against the pharmaceutical company, Bristol - Myers
Squibb (BMS). The court ruled that the pharmaceutical
company had illegally amended its application three years
after its original submission, in order to claim a wider monopoly
on ddl (an NRTI a crilical first regimen AIDS drug) than the
patent description justified and has ordered BMS to revert to
its original claim. BMS in its original patent application filed
in July 1992, asked that its patent be extended to cover only
a "range of 5 mg to 100 mg per unit of use.” In 1997, BMS
amended its patent and omitted the dosage restriction.
The decision rejected BMS' exclusive right to market ddl in
Thailand and paved the way for its generic production
(patented ddl tablets cost twice as much as generic ones). The
drug company can now exclusively produce ddl only in doses
from 5 milligrams to 100 milligrams, while other drug
companies can produce the drug in larger doses.
There are over one million people living with HIV/AIDS in
Thailand. Only a few thousand have access to treatment. The
Thailand Network of People Living with HIV/AIDS (TNP-I-) and
other treatment access groups have campaigned for expanded
and improved access to treatment. In 1998, treatment activists
demanded that the Thai government exercise its rights to use
a compulsory license to produce generic ddl tablets in order
to address its AIDS treatment crisis. The government refused,
rights in areas such as:
form which causes increased side affects in comparison to
•
•
•
•
Health care
Employment
Terminal dues like gratuity, pension
Marital rights relating to maintenance, custody etc
tablets and was also not easy to administer.
•
Housing
In May 2000, the plaintiffs, two persons living with HIV/AIDS
The Unit is involved in initiating public interest litigation on
issues like the right to marry, confidentiality, access to health
care, safe blood supply, quacks, etc. Lawyers Collective HIV/
AIDS Unit also conducts workshops on legal and ethical issues
citing fear of trade sanctions. Instead the Thai Government
Pharmaceutical Organisation (GPO) produced ddl in powder
and the AIDS Access Foundation initiated legal action on
behalf of all people living with HIV/AIDS in Thailand, against
BMS and the Thai Department of Intellectual Property (DIP).
Some significant points from the judgement include:
a) For the first time the Doha Declaration on Patents and
Public Health was cited by a court to ensure access to
treatment. The court stated that the Doha Declaration insisted
that TRIPS be interpreted and implemented so as to protect
the country's public health, especially the promotion and
relating to HIV/AIDS for people living with HIV/AIDS, lawyers,
judges, health care providers, NGOs etc.
Please send your comments and queries to the addresses
given below. Those affected by HIV/AIDS seeking legal aid,
advice and support are welcome to contact us at:
support of access to medicine for all people.
Lawyers Collective HIV/AIDS Unit
b) People living with HIV/AIDS and an NGO working on
AIDS, and not commercial enterprises contested a patent in
court on the grounds that health interests supersede patent
Programme Management Unit
2
7/10, BOTAWALLA BUILDING, nd FLOOR
HORNIMAN CIRLCE, FORT, MUMBAI - 400 023^)
protection.
In October 2002, Thai activists also decided to challenge BMS1
Thai patent (number 7600) that it applied for and received in
1998 for a formulation of ddl despite the fact that it does not
involve any significant inventive step or novelty, a necessary
criteria for granting a patent. Activists point out that the patent
is invalid, as BMS had simply combined the drug with a buffer,
an antacid that helps ddl to be better absorbed from the
stomach, (a common practice among pharmacists) and that
this is not an inventive step. As a result, BMS managed to
maintain its monopoly on this important AIDS drug.
Contributions: Veena Johari, Tripti Tandon, Leena Menghaney
Monthly Drop-in meeting
Lawyers Collective HIV/AIDS Unit holds monthly drop in
meetings on the first Thursday of each month. The meetings
TEL
:
022 267 6213/9
FAX
:
022 270 2563
E-MAIL
:
aidslaw@vsnl.com
Website
:
www.lawyerscollective.org
New Delhi Project Office
63/2 MASJID ROAD, Is' FLOOR, JANGPURA
NEW DELHI - 110014
TEL/FAX: 011 432 1101/02 or 011 4316925
E-MAIL
:
aidslawl @ndb,vsnl.net.in
Hours
:
Monday - Friday : 1 0:00 a.m. - 7:00 p.m.
Saturday:
10:00a.m. - 4:00p.m.
Subscribe to:
start at 4.30 pm at the Delhi Office and at 5.00 pm at the
Mumbai Office. The objective of the meeting is to share
experiences, information and discuss issues of concern. We
invite your active participation in these meetings.
JALARAM JYOT BUILDING, 4TH FLOOR, 63, JANMABHOOMI MARG, FORT,
Lawyers Collective HIV/AIDS Unit provides legal aid and allied
services for people affected by HIV/AIDS. The main objective
of the Unit is to protect and promote the fundamental rights
of persons living with HIV/AIDS, who have been denied their
MUMBAI 400 001
A Monthly Legal Magazine, uses law
as an instrument of social change
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If undelivered please return to :
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A^ectecC
‘Wl/14'TDS ?
o
Can I be denied employment or be removed from my job if
I am HIV+?
No. If you are fit to perform your job functions, otherwise
qualified and do not pose a substantial risk to your fellow
workers, a government/public sector employer cannot deny you
employment because you are HIV+.
fl
This has been held by the Bombay High Court in MX v ZY and
arises from your fundamental rights to work, to be treated
equally and to earn a livelihood under the Indian Constitution.
Similarly, you cannot be removed from your job by any employer
because you are HIV+, provided you are fit to continue to
perform your job functions and do not pose a substantial risk to
your colleagues.
What are the remedies available to me if I am removed
from my job due to my HIV+ status?
You cannot be removed from your job merely due to your HIV+
status. However, if you are, you have different remedies under
the law depending on certain variables. Your remedies could
include approaching the Labour or Industrial Court for
reinstatement and back wages or approaching a civil court for
damages or the High Court, if you are in the government/public
sector, for setting aside the termination as violative of your
fundamental and/or statutory rights.
■>
If, due to my medical condition, I am not fit to perform my
current job, can I be transferred to a different
department within the same organization?
If your medical condition does not permit you to perform your
job functions, you may be offered an alternate job. But this
arrangement should not pose any undue financial or
administrative burden on the employer.
•
Can an employer make me undergo a compulsory HIV test as
part of a medical examination at the time of recruitment or
during the course of my employment?
No. The purpose of a medical examination is to decide whether
a person is fit enough to do a particular job during employment.
Jfipedical examination tests a person's functional abilities by
eramining aspects of her/his health that are relevant to the
job s/he performs e.g. tests for the heart, eyesight, breathing
etc. An HIV test does not indicate the capacity of the
individual to perform her/his job functions.
Government testing policy states that a compulsory HIV test
should not be imposed as a pre-condition of employment or for
providing health care facilities during employment or as an
assessment of fitness to work.
An HIV test can be a voluntary part of a medical examination
and should only take place with the specific informed consent
of the employee.
•
However, the above may not apply to a private employer.
•
Do I need to inform my HIV+ status to my employer?
No. You are not obliged to inform your employer about your
HIV+ status unless required by a statutory law because your
|*us is not relevant for the determination of your fitness or
^acity to perform your job functions.
o
Can a doctor inform my employer of my HIV status?
The doctor has an obligation to maintain the confidentiality of
his/her patient's medical status. However, the doctor may
disclose the status if the employee agrees, either expressly or
impliedly, to waive his/her right to confidentiality.
If I am a spouse of an HIV+ person who has passed away,
do I have a right to employment in his/her place?
If your spouse was working in the government/public sector and
the employer has a scheme for compassionate employment, you
as the dependant family member can apply for a job on
compassionate grounds provided you are fit to perform the Mg,
functions and qualified to work in accordance with the scheme^
•
<■
Am I entitled to benefits even if I am HIV+?
All employees, irrespective of their status, are entitled to
terminal benefits. You are entitled to all employment benefits
such as pensions, provident funds and housing as well as those
relating to spouse, children and/or dependants. However only
insured employees i.e. those covered under the Employees State
Insurance Act or other insurance schemes,-'are entitled to
medical benefits.
Lawyers Collective HIV/AIDS Unit provides free legal
and advice to people affected by HIV/AIDS. Contact us at:
email: aidslaw@vsnl.com
63/2 Masjid Road, Jangpura, New Delhi 110014. Tel/Fax: 01124321101/2 email: aidslawl@del2.vsnl.net.in
Your Basic Rights
In India, all people are entitled to basic or fundamental rights
in the eyes of the law. It does not matter what the religion,
race, sex, or place of birth of that psfrjon
L
is. Neither do these rights change^ist
because an individual is affected by HIV.
C
'; It's important to be aware of your basic
fundamental rights and to remember that
you can do something if they are infringed. Here's a brief
idea of three of the most important rights in the HIV
scenario.
Right to Informed Consent
Consent is basically agreeing to something. In legal
terms, consent is two people agreeing on the something
in the same sense.
X Consent, can be ‘express', which is verbal or written, or
'implied' through conduct or action, like a nod of the head.
X Consent may be general, when it is taken for
a lot of things or specific, when it is taken for a
specific purpose.
_
T.:
X Consent has to be free. It is not free
when it is obtained by coercion, mistake,
misrepresentation, fraud or undue influence.
™
X Consent also needs to be informed. This is particularly
important in a doctor-patient relationship. The doctor knows
more and is trusted by the patient. Before any medical
procedure, a doctor is supposed to inform the patient of the
risks involved and the alternatives available so the person can
make an informed decision to undertake the procedure or not.
X
The implications of HIV are very different from most
other illnesses. That's why testing for HIV requires specific
and informed consent from the person being tested. Consent
to another diagnostic test cannot be taken as implied consent
for an HIV test. If informed consent is not taken, your rights
may have been violated and you can seek a remedy in court.
RenOliber to always ask your doctor what tests and medicines
you are being asked to take and why. It will help you understand
your health problems better. Most doctors will take the time
to help you out. After all, that’s what they are there for!
Right to Confidentiality
Confidentiality may simply be described as keeping
specific information to yourself, just like a secret.
X Confidentiality arises when in a confidential
relationship based on trust, information having the
SH
quality of confidentiality is imparted from one person
®
to the other. In such a relationship if confidential
information is imparted, then it must be kept confidential,
X When you tell someone in whom you place trust something
in confidence and s/he tells another person about it, that
amounts to breach of confidentiality.
X A doctor's primary duty is towards the patient and to
maintain the confidentiality of information imparted by the
pat^tf If your confidentiality is either likely to or has been
brewRed you have the right to go to court and sue for
damages.
X People living with HIV/AIDS (PWAs) are often afraid to
go to court to vindicate their rights for fear of their HIV
status becoming public knowledge. However, they can use the
tool of 'Suppression of Identity' whereby a person can litigate
under a pseudonym (not your real name). This beneficent
strategy ensures that PWAs can seek justice without fear of
social ostracism or discrimination.
Right Against Discrimination
The right to equal treatment is a fundamental right. However
it is available only against state-controlled entities, not against
private parties. The law provides that a person may
be
discriminated against on any grounds of sex, religion, Wste,
creed, descent or place of birth etc. either socially or
professionally by a government-run or controlled institution.
X The right to public health is also a fundamental right,
something which the state is supposed to provide to all
persons. HIV positive persons seeking medical treatment or
admission to a hospital cannot be rejected. If they are denied
treatment, they have a remedy in law.
X Similarly, a person with HIV may not be discriminated
against due to his positive status in an employment scenario.
A person can be terminated from employment on the grounds
of continued ill-health. For someone who is HIV-positive but
otherwise fit to continue the job without posing a substantial
risk to others cannot be terminated from employment.
Termination in such a situation would give that person an
opportunity to seek legal redress.
So whether it's something as simple as using a public well or
something more serious like denial of housing, remember you
have the right to be treated equally. And you have fhe
support of the legal system to ensure it.
a
Lawyers Collective HIV/AIDS Unit provides free legal aid
and advice to people affected by HIV/AIDS. For more
information, contact:
e-mail: aidslaw@vsnl.com
63/2 Masjid Road, Jangpura, New Delhi -110 014.
Tel/Fax: 011 2432 1101/2
Adv/Letter/128/p/05
25 July 2005
Dear Colleagues,
Enclosed is the Lawyers Collective HIV/AIDS Unit Comment on the proposed
HIV/AIDS Bill. We have submitted this note to the Law Minister of Karnataka today.
Please do not hesitate to call us if you want clarifications on any aspects of the Karnataka
proposed bill.
Priti Radhakrishnan
Senior Project Officer
Lawyers Collective HIV/AIDS Unit - Bangalore
Encl:(l) Lawyers Collective HIV/AIDS Unit Comment on the proposed HIV/AIDS Bill
(2) Letter to the Chief Minister of Karnataka.
PMU : 7/10. Botawalla Building. 2na Floor. Horniman Circle. Mumbai 400 023. INDIA Tel. 91-22-2267 6213, 2267 6219
email. aidslaw@vsnl.com / aidslaw@lawyerscollective.org
P.O.
Fax 91-22-2270 2563
: First Floor. No 4A, M A H Road. Off Park Road. Tasker Town. Shivajinagar, Bangalore 560 051. INDIA Tel.: 91-80-5123 9130/1 Fax . 91-80-5123 9289
email: aidslaw2@lawyerscollective org
P.O. :1s'Floor. 63/2 Masjid Road. Jangpura, New Delta 110 014. INDIA Tel : 91-11 2432 1101 / 2432 1102, 2432 2237 Fax:91-11-2432 2236
email: aidslaw1@ndb.vsnl.net.in / aidslaw1@lawyerscollective.org
Regd. Office : 4lh Floor Jalaram Jyot. 63 Janmabhoomi Marg, Fort, Mumbai 400 001. INDIA Tel : 91-22-2283 0957, 2285 2543 Fax : 91-22-2282 3570
wwv* 'awyerscollective.org
_____________ A Comment on the Proposed Karnataka HIV/AIDS Bill_____________
Lawyers Collective HIV/AIDS Unit
The Human Immuno Deficiency Virus Affected And Acquired Immuno Deficiency
Syndrome Persons (Protection of Rights And Prevention Of Infection) Bill, 2005 is the
initiative by the Karnataka state government. The Karnataka state government has
recognized the needs of Persons Living With HIV/AIDS and is making a commendable
attempt in trying to legislate to protect rights and prevent the spread of HIV/AIDS.
It should be noted that if the State Assembly passes this bill in its present form, it may
result in harmful consequences. This bill, though a praiseworthy attempt, is ridden with
ambiguities. There is also an absence of key provisions that are essential to a
comprehensive statutory response to HIV/AIDS.
In this document, we set out in Part I a “Broad Analysis”, offering overarching
comments with respect to areas of concern in the legislation. In Part II, we undertake a
“Specific Analysis”, offering comments on selected chapters/provisions.
PART I: BROAD ANALYSIS:
Pending Bill in the Centre'. There is a national HIV/AIDS legislation on the anvil that is
expected to be tabled with the Parliament this year. This national legislation contains a
comprehensive set of provisions of law. In the eventuality of such a bill becoming a
statute or an enactment, in case of repugnancy the Central Legislation will prevail over
the state statute or legislation as provided under the Constitution. It is advisable that the
state government consults the central government before proceeding forward with this
piece of legislation.
Overlapping sections: There are sections in this bill which overlap with provisions in
existing legislations. In cases where provisions of this bill conflict with any provision in
central legislations, the central legislations will prevail over the state legislation. For the
bill to override the already existing provisions, there should exist a non-obstante clause,
which is absent in the present bill. (e.g. “Notwithstanding anything contained in any law
for the time being in force”....).
Inconsistency in the Statement of Objects and Reasons: The objects and reasons of any
bill form the core statement of the topic that is being legislated, as the purpose and the
rationale behind the bill is explained. There should exist no contradictions in the body of
the bill when it is read with the statement of objects and reasons. In the present bill
contradictions do exist. The substantive clauses have not covered all the areas articulated
in the statement of objects and reasons, such as information and education to heighten
awareness.
Ambiguities and absences in the definitions: The definitions are not precise and are
incomplete. Definitions form the crux of any legislation: in the event of the Hon’ble
Courts interpreting the meaning of a term, the judicial determination will depend heavily
on the definitions. In case the definitions are ambiguous, the Hon’ble Courts will depend
on other statutes; this may be inappropriate for an HIV/AIDS response as each statute is
legislated for a different purpose and will ascribe meanings to words that may not
conform to the HIV/AIDS context.
Furthermore, in the proposed bill, there is an absence of critical terms such as “person”,
“consent”, “confidentiality”, “discrimination”, etc.
Absence of special provisions protecting rights of women and children: The disease
burden of HIV/AIDS in India falls disproportionately on women and children. In this
bill, specific sections do not exist to address this reality, (e.g. matrimonial rights,
domestic violence, custody, sexual assault, breach of confidentiality, the concept of
discrimination within family and children, age of consent, or the issue of informed
consent).
Key issues are absent: The bill fails to adequately address concepts such as
discrimination, confidentiality and consent, which form the core areas requiring
2
legislation for HIV/AIDS. Furthermore, the bill does not address many other areas,
which are central to an HIV/AIDS legislation, such as risk reduction for vulnerable
communities,
Information/Education/Communication
(IEC),
implementation
mechanisms, a safe working environment, and access to antiretroviral and related
treatment to prolong healthy lives of HIV-positive persons.
Lack of evidentiary or scientific basis. Any statutory response to HIV/AIDS should base
itself on strategies that have worked in India and abroad. In this respect, there is a crucial
lacuna in the bill, as it is based on hypothetical assumptions and not on evidence and
science.
Uncertainty in the bill’s legislative scope/reach: The legislative scope of the bill is
unclear: will it be applicable to the private sector, public sector or both? In some of the
provisions, the bill suggests that the private sector would fall within the parameters of the
bill, and in some other provisions it suggests that it would not.
Additionally, the sections cover only the rights of Persons Living With HIV/AIDS, but
do not set out rights for persons who are affected by HIV/AIDS [e.g. orphans, family
members, etc] or those perceived to be HIV- positive [e.g. those perceived to be “atrisk”].
Confusion on the identity of the State Authority: The bill provides for a Board or an
Authority that is to be formed, but it remains unclear if the bill is replacing the present
Karnataka State Aids Prevention Society (“KSAPS”), or if the bill envisages the creation
of a new body. If the structure is the same as KSAPS and is merely statutorising the
body, it is dramatically decreasing the functions of the body. This will have a severe
impact on health outcomes as programmes focused on targeted interventions, IEC, blood,
and others will cease to exist. Moreover, there will have to be a structure to take over the
present KSAPS, which is quite a cumbersome structure in any bill: indeed, in the national
legislation, the structure takes 20 pages. On the other hand, if the bill is creating a new
body, it is unclear why it would do so and it is duplicating work.
In either case, the bill implies a change in the structure and functioning of the present
KSAPS. This will change only in Karnataka as no other state has a bill with similar
provisions to date. Furthermore, in case the Board under the bill does become a statutory
body, it will have different powers and responsibilities and may not be able to work under
the National AIDS Control Organisation. This may have negative consequences for
HIV/AIDS programming and health outcomes in Karnataka: a national, coordinated
response is integral to tackling the spread of the epidemic.
Lack of provision on expedited procedures for relief: The bill does not create any
provision to expedite the procedures to obtain judicial reliefs. In our experience litigating
on behalf of HIV-positive persons in Karnataka, justice may be delayed for years. A
provision that mandates faster procedures is essential.
3
Dearth of adequate remedies: The bill does not provide for remedies in a systematic or
definite manner. The remedies provided in the bill are inadequate and insufficient.
Incorrect usage of terms: The provision uses the word “rehabilitation” in the context of
HIV-positive persons. This raises a concern as to how HIV/AIDS is viewed in our
society: Persons Living With HIV/AIDS do not require “rehabilitation”. Rather, some
may require life-saving treatment, and perhaps the word “treatment” is more appropriate
here rather than “rehabilitation”.
Certain sections contain the term “HIV/AIDS patient”, which we believe to be
paternalistic and inaccurate. As HIV is a condition/infection, a person can be HIV
positive and stay asymptomatic for years. They may not be patients at all, but healthy
individuals capable of leading productive lives for many years.
Arbitrary powers given to the officials: The “good faith” clause provides immunity to the
board members without making them responsible for any acts which they may have done
that violated rights. Due to the fact that a comprehensive set of rights is not set out, if an
official acts to prevent HIV/AIDS in a manner that violates rights, but does so in good
faith, the victim may not have legal recourse. To illustrate, if there is no right provided
against discrimination or isolation, and if HIV-positive persons are isolated in good faith
to prevent the spread of the infection, they would not be able to redress the wrong. This
clause gives sweeping powers for the directors and other board members and places too
high a burden on the Person Living with HIV/AIDS.
Problematic Nature of Board/Authority: The proposed structure raises several concerns
pertaining to the composition of the Board and appointing of the members. The Board
lacks representation of Persons Living with HIV/AIDS. The proposed bill does not
indicate how the Board members and other officials will be sensitised to issues of
HIV/AIDS, or mention the duration of tenure for ex-officio members. There is a lack of
recognition of vulnerable populations in the programme as they are among those affected,
and their rights need to be protected in order for prevention of the infection to be
possible.
4
PART II SPECIFIC ANALYSIS
Chapter II: Rights Of the HIV/AIDS Infected
Every person and citizen is entitled to some fundamental rights that are provided in the
Indian Constitution. One of the greatest lessons that the HIV pandemic has taught public
health experts is that the spread of the HIV infection can be prevented, from HIV-positive
persons to others, if the rights of people infected or affected with HIV/AIDS are
protected. By creating an enabling environment, Persons Living With HIV/AIDS will
access health services, allowing interventions to prevent the epidemic from spreading.
This lesson has been shown in our country in Sonagachi, Kolkata. Using the rights-based
approach for sex workers, condom usage was scaled-up from 2.7% in 1992 to 90.5% in
1998. As a result, the number of persons testing VDRL dropped in the same period from
25.4% to 11.5%. In the same period the number of new persons testing for HIV from 442
to 506 and the number of persons who tested HIV negative rose from 0.15-2.11% CI to
3.54-7.52% CI. Thus when people know that they are entitled to certain rights which
protect their status, they will be encouraged to exercise such rights, e.g. get themselves
tested, disclose their HIV status voluntarily and engage in safer behaviour. This lesson
has to be incorporated in any law on HIV that is enacted.
In the context of the present bill, it is an important step that the Karnataka government
seeks to vest rights in Persons Living With FIIV/AIDS. It is important to note, however,
that the bill also takes away rights of confidentiality, informed consent and freedom to
procreate. Such provisions will only discourage people from accessing health services
and preventing the spread of transmission. Therefore, it is the paramount duty of the state
government to legislate a bill keeping the rights-based approach in mind.
Furthermore, the bill reemphasizes the following existing rights under the Indian
Constitution:
Provisions in Karnataka Proposed Bill
Provisions in Constitution of India
Section 3(a)(b)
Section-3(c)
Section-4
Section-6 and Section-7
Article-15 (2)(a)(b)
Article-19( 1 )(g)
Article-14 and Article-16
Article 21
The bill is therefore duplicating existing constitutional rights and is not expanding the
area of its applicability. The rights guaranteed under the Indian Constitution are
applicable only to the public sector, and are enforceable only against such authorities that
are public sector enterprises or are working under them. The bill does not explicitly set
out whether these existing rights are applicable to the private sector or private
individuals.
5
3. Rights against enforcement of social disabilities: No person shall on the ground
ofHIV/AIDS infection enforce against any person any disability with regard to:
a.
b.
c.
d.
e.
access to any shop, public restaurant, hotel or place of
public entertainment; or
the use of any utensils, and other articles kept in any public
restaurant, hotel, or public place for the use of the general public.
the practice of any profession or the carrying on of any
occupation, trade or business.
the use of or access to any river, stream, spring well, tank
cistern water tap or other watering space, or any bathing ghat, burial, or
cremation ground, any sanitary convenience, or any other place ofpublic
resort which other members of the public have a right to use or have
access to; or
the use of or access to any public conveyance.
Comment: Section 3 seeks to remove any kind of discrimination against HIV-positive
persons. However, it uses the phrase “social disability”, which is not an accurate term to
use, unless it is defined. Since there is no definition for “disability” in Chapter I, it will be
difficult to enforce the rights provided in this section.
This section reemphasizes the right already guaranteed under the Indian Constitution but
it is not clear whether such right is vested in a person and can be enforced against a
private person or private body, as the reading of the section implies that only public
places are covered.
4. Right to equality in matters relating to employment: No person shall be subjected to a
discriminatory treatment on the ground that he is HIV-positive, nor shall he/she be
removedfrom service.
Comment: The subheading refers to equality, whereas the substantive section is about
non-discrimination. There is a significant legal distinction between the two which is not
addressed.
The section provides for the right against discrimination in the context of employment.
However discrimination is not defined. This is a serious flaw in the bill. Also, there is a
wealth ofjudgments on this point, which need to be incorporated.
The section provides that any person because of his HIV status should not be removed
from service and should not be subjected to discriminatory treatment. In order that an
HIV positive person should be able to exercise rights guaranteed under this section,
specific acts must be included, e.g. demotion, ill treatment, non-payment of bonus
separation, unnecessary transfers, etc. This should be done within the definition of
discrimination.
6
5. Right against pre-employment HIV test: All pre-employment HIV tests are banned.
No employer shall prescribe a pre-employment HIV test.
Comment: This section is in accord with the National Testing Policy. The overall
coverage of the section would include the private sector. There is no basis for testing for
HIV in the pre-employment setting.
6. Right to treatment; Every HIV/AIDS patient shall have a right to medical treatment in
all the Government Hospital/Primary Health Centres
Comment: This section provides for all HIV-positive people to be treated in all
government hospitals and primary health centres. Other institutions run by the
government are absent, e.g. community health centres, government specialty hospitals,
etc. Therefore, the section limits the availability of medical treatment. Moreover,
treatment is not defined. The aspect of finance is not looked at, as unless the central
government agrees to this provision it will not be realised, since all HIV work is funded
by the central government.
8. Right to marry: Every HIV/AIDSpatient shall have a right to marry a person who has
freely and voluntarily consented to that marriage being conscious of the fact that the
person is HIV positive. However, this right shall be subject to the provisions of ChapterIV.
Comment: The section is a step in the right direction in that it actualises the right of
HIV-positive persons to marry. However, it requires any HIV-positive person who seeks
to get married to disclose his/her status to the prospective spouse and only if the
prospective spouse accepts such a condition, can the marriage take place. The problem is
that this right is subject to the rights in Chapter IV. Read together with that, the section
implies disclosure of one’s status but does not provide any safeguards for the same, such
as maintaining confidentiality to make sure that the other person does not disclose one’s
status to the world without his consent. The section also does not envisage a situation
where an HIV-positive person might not know his HIV status.
In a country like India where marriages are usually arranged, this is not a feasible
provision to implement, especially for women. This is particularly so in Karnataka where
46% of marriages are child marriages. Women, who usually do not have a choice to
choose their life partner, may not be in a position to ask for an HIV test from their
prospective spouses. Therefore, unless other provisions are put in place to empower
women and girl children, this section may be used against women by stigmatising and
blaming them.
9. Punishment for violation of rights: Any person violating the above rights shall be
punished with an imprisonment for a term which may extend to one year and also with a
fine of up to twentyfive thousand rupees.
7
Comment: This section is a penalty clause for violation of the rights provided for under
Chapter-11.
The Section does not expressly mention what rights are referred to.
Assuming all the rights in this chapter are covered, it is not clear which court will try the
offence and whether it is cognisable and/or bailable or not.
10. Right to information: Every Medical practitioner who knows that he has HIV/AIDS
infection shall before performing any en vivo medical procedure on a person shall inform
him of the said infection.
Comment: This is a specific section applicable only to medical practitioners. It is now
universally accepted that an ordinary doctor performing day to day to medical procedures
does not pose a significant risk to the patient. Even in the realm of surgeries, only major
invasive surgeries are considered to pose a significant risk. The risk reduces further with
the use of universal precautions. In any event, it is the duty of the employer to ensure that
the surgeon is free from HIV. This would require reporting the HIV status to the
employer, not to every patient.
Chapter-Ill: Prohibition of Certain Acts
This chapter prohibits acts that hinder the rights of HIV positive and negative persons.
The sections in this chapter are not in a purposeful sequence or grouping.
11. Intentional Transmission of HIV:
(a) No person who knows or in all reasonable probability would have known that he has
HIV infection shall intentionally or knowingly engage in any practice or behaviour or do
or abstain from doing any act, which places or has a tendency to place any other person
at risk to HIV infection.
Comment: Section 11(a) includes provisions that are similar to those already existing in
the Indian Penal Code, sections 269 and 270. Section 269 and 270 make acts that may
transmit disease dangerous to life punishable. These provisions, which cover HIV
transmission, are sufficient in scope. Therefore, a new criminal provision is not
necessary.
The primary reason for rejecting such a provision is on grounds of public health; enacting
such a provision:
• Serves as a disincentive to testing because of the criminal liability and
because safeguards for confidentiality will not exist;
• Obstructs access to counselling and related services;
• Enhances HIV/AIDS related stigma, discrimination and isolation;
• Spreads incorrect information about HIV/AIDS;
• Punishes persons who, given the lack of education and counselling that
exists in society today, know their HIV status but are not aware of its
implications, e.g. transmission.
8
Such consequences will serve to drive HIV-positive persons underground, and away from
crucial health information and services, which will inevitably promote the spread of the
epidemic. Furthermore, HIV specific criminal legislation contradicts the more effective
message that it is the behaviour of each individual, whether infected or not, which
determines the course of the epidemic and whether individuals contract HIV.
In other parts of the world, similar attempts to introduce HIV-specific criminal laws were
rejected. In South Africa, such a provision was considered largely because women and
girls were being infected. The South African Law Commission rejected the provisions in
part because (1) a change in the law would be based on “urban legends” and not
scientific/empirical evidence that HIV-positive persons were wilfully/negligently placing
people at risk, (2) problems would ensue e.g. burden of proof and constitutional issues,
(3) limited prosecutions under existing provisions indicate that few will utilize an HIVspecific statutory offence. Similarly, Canada, the United States and Namibia abandoned
similar statutory provisions.
(b) Whoever contravenes sub section (a) shall, regardless of whether such practice or
behaviour or act has actually transmitted the infection to such other person or not, shall
be punished with imprisonment for a term of not less than five years and which may
extend to ten years and with fine, which shall not be less than two lakh rupees and which
may extend to twentyfive lakh rupees.
Comment: This section punishes a person regardless of whether the infection was
actually transmitted or not. Indian Penal Code section 269 and 270 provides punishment
for similar acts. There is no need to have a special section for HIV as Penal Code sections
269/270 deal with the situation adequately. It is important to note that such a huge fine
will only work against the poor, particularly against the sex workers.
(c) Any court sentencing a person to fine under sub section (b) may award such fine or
any part thereof as compensation to the person placed at risk of HIV infection.
(d) The compensation awarded under sub section (c) shall be in addition to and not in
derogation of any compensation to which such person is entitled, if any, under any other
law for the time being in force.
Comment: This section provides for compensation to the victim, and the accused is
required to pay a fine in addition to the imprisonment. The victim is further entitled to
claim damages under any other statute, which simply means that the accused will have to
not only pay compensation under this bill, but also damages.
12. Prohibition of misleading advertisements: All misleading advertisements about cure
to HIV/AIDS in print, electronic and other media are prohibited. All persons responsible
for issuing and publishing such advertisements shall be punished with an imprisonment
for a term which may extend to one year and with a fine which may extend to twenty five
thousand rupees.
9
Comment: This section punishes any person providing misleading information about a
cure for HIV/AIDS. The term “misleading” itself is a subjective term. As one person
might find an advertisement misleading and another might not, “misleading” therefore
needs to be defined clearly. The bill replicates an existing provision under the Drugs and
Cosmetics Act. The difference is that the section under this bill provides a penalty for
violation of this provision. It is not clear whether the offence is cognisable and bailable
and which court will entertain the case. This provision will not work if there is no
authority to take proactive action against persons who issue the advertisements.
Moreover, it is not only advertisements which need to be tackled. There are many who
claim, through word of mouth and/or practice, that there is a cure for HIV/AIDS.
13. Prohibition of mass tubectomy, etc.: Mass tubectomy, circumcision, and any other
such mass camps without involving qualified medical practitioners shall be prohibited.
Any person organising such camps in contravention of this provision shall be punished
with an imprisonment which may extend to six months and with a fine which may extend
to ten thousand rupees
Comment: This section prohibits mass tubectomy and circumcision where qualified
medical practitioners are not present. By implication, this provision allows for situations
wherein qualified medical practitioners are present. There is no rationale for this section,
as no data supports the contention that these camps promote the spread of the infection.
14. Prohibition of disclosure of HIV test results: Subject to the provisions of this Act, the
fact that a person has tested positive to HIV test shall remain confidential.
Comment: This section prohibits disclosure of one’s HIV status without providing any
exceptions and situations. There is no indication as to when disclosure is permissible,
e.g. cases of sexual assault, cases where there is an identifiable partner who is at
significant risk, by an order of the court, etc.
Chapter-IV: Regulation of Matrimonial Relations and Procreation
The title of Chapter IV reflects an intent to permit the state to interfere with the
individual’s private rights, e.g. the right to know one’s HIV status, the right to privacy
and the right to procreate. On the other hand, the State does have the authority to legislate
on the lives of individuals, provided such authority is not violating basic fundamental
rights. In this chapter, fundamental rights are violated.
This chapter also impedes effective HIV strategies by using marriage as the normative
construct, thereby excluding other relationships. Given that HIV infection is spreading in
Karnataka through sexual and needle-sharing relationships outside of marital
relationships, this chapter does not reflect the realities existing in the State.
This chapter is also flawed as implementation of the provisions appears impossible.
10
15. Pre Marital HIV Test: If one of the contracting parties to the marriage insists on the
test to check the HIV status of the other person, the other person shall undergo such test
to the satisfaction of the person concerned.
Comment: This provision does not create an enforceable right beyond what ordinary
persons are free to do in the absence of a statute: request an HIV test from a prospective
spouse before marriage.
If the intent of the provision is to give prospective spouses the right to know their
partner’s HIV status before marriage, it may not achieve its objective. At the time of the
test, there is a possibility that a person may test negative, even if they are infected with
HIV. This time period is known as the “window period”. The common way in which the
test for HIV is conducted is an antibody test. Even if the person is infected with HIV, the
antibody test result will still show a negative result if the antibodies are not developed.
Hence, a single antibody test for HIV does not serve the purpose of identifying people
with the virus, and preventing he /she from getting infected.
If the intent of the provision is to protect women who are likely to be infected by their
husbands, the question is raised: will the prospective spouse ask the question if there is a
law? Will the law really empower women? This is doubtful given the cultural traditions
that exist in India where the girl child is not empowered. The real challenge is to
empower the girl child and educate her about sex. This will empower women not only
before marriage but also during marriage, which will help her in case her husband
contracts the infection after marriage which is very often the case. Absent such
empowerment, the law can only be a paper tiger.
This provision also has a number of weaknesses: it will encourage unscrupulous doctors
to give false negative certificates, there.will be deleterious consequences for persons who
obtain “false positive” results (which is very high in India}, and it does not prevent the
spread of the infection to sexual partners outside of marriage or needle-sharing partners.
Even if this provision becomes law, it does not address the crucial issue of what will
happen to the persons if they are found HIV-positive. Once the community knows a
person’s HIV status, the stigma and discrimination the person will face are not addressed
and adequate safeguards are not provided. Safeguards to protect confidentiality must be
included.
The provision also raises two other concerns: (1) the phrase “to the satisfaction of the
person concerned” is not set out clearly, and does not explain what would meet the
standard of satisfaction, which is a subjective criteria; (2) the phrase “contracting parties”
raises an issue as to whether Hindu couples would fall within the provision, as the Hindu
Marriage Act does not recognise marriage as a contract.
Lastly, it is important to note that this provision is alarmingly close to a provision
mandating pre-marital HIV testing. Pre-marital mandatory testing has been considered
11
In case this section is implemented, people may not want to get themselves tested as test
results may be disclosed to their spouses and sexual partners. Out of fear that individuals
will be known as HIV-positive, they may stop accessing medical services. In turn, they
will not get essential information about safe sexual and needle-sharing practices, and the
disease may spread further. By protecting the rights of one person we can protect the
rights of the whole society.
17. If the husband is HIV positive and wife is HIV negative, they shall not procreate
children through wedlock.
Comment: This section may violate Article 21 of the Indian Constitution, which sets out
a right to privacy. The right of procreation has been read into this right. This provision
allows the state to intervene in the choice of two individuals without offering a rationale
for the same. Courts have found that HIV-positive people may get married. If there is
consent between two persons, the State cannot intervene. Similarly, it may be argued that
the State may not intervene in a decision to procreate arrived at between two consenting
adults. It may also be argued that a woman has the right to procreate and have complete
autonomy over her own body, among other rights.
The section is probably based on a misconception that married couples only engage in
sex for procreation. This is obviously not true as people engage in sex for pleasure.
Furthermore, it should be noted that implementation of this section will be nearly
impossible.
Lastly, the intent behind the section is unclear. No explanation has been offered as to why
HIV-positive husbands and HIV-negative wives may not procreate through wedlock,
whereas HIV-negative husbands and HIV-positive wives may procreate through wedlock.
In this respect the section would be unconstitutional and is liable to be struck down.
18. All pregnant women shall be tested for HIV during the 3rd month, 6'1' month and
before delivery. Those found positive shall be compidsorily counselled and treated to
prevent transmission of HIV infection to the child.
Comment: This provision adopts mandatory testing as a public health strategy. The
provision dispenses with the need for pre-test counselling and written, informed consent,
both of which are acknowledged by leading public health authorities as essential for
prevention of HIV transmission. It has not been proven that mandatory HIV testing of
pregnant women is the most effective approach for reducing prenatal transmission.
Leading public health authorities recommend voluntary counseling and testing as the
optimal strategy for prevention of HIV transmission.
The data in India and Karnataka, demonstrating that mandatory testing is unnecessary, is
ignored in this provision. India has rightly followed the protocol of voluntary counseling
and testing in the antenatal clinic setting. There exists criticism that it is not “really” a
voluntary counseling and testing situation, as the counseling is lacking. However, even if
there is only information given to the mother about the benefits of testing, then the results
13
are evident: at the national level, of the women who were counseled in the ANC setting
or given basic information, 97% opted for testing. Thus, there is no need to make testing
or treatment mandatory.
The consequences of mandatory testing are well-documented; persons often avoid
accessing medical services and information, fueling the spread of the epidemic. These
consequences are equally applicable in the context of pregnant women. This provision
presumably restricts the woman’s rights in the best interest of the unborn child, seeking
to prevent children from being bom HIV-positive. Experiences in Karnataka indicate that
when women are offered HIV information in a pre-natal setting, by and large they seek
testing and treatment to prevent transmission to their unborn child. Experiences also
demonstrate that pregnant women who are HIV-positive often shun medical help because
they fear they might be stigmatized or discriminated against. By offering these women
crucial health information and a choice to get tested, the chances may be increased that
women will obtain counselling, testing and treatment.
Mandatory testing in any situation creates fear and fuels stigma and discrimination
against people infected or affected by HIV/AIDS.
Women already suffer from
discrimination as a result of social, political, cultural and legal factors in our society.
Subjecting pregnant women to compulsory HIV testing not only violates women’s rights
but also places them at heightened risk for being blamed for infecting the spouse,
domestic violence, being thrown out of their homes, losing custody of the children, etc.
This is particularly true under a provision such as Section 18, which does not provide for
confidentiality, and when read with Section 16, mandates disclosure to the spouse or
sexual partners.
Furthermore, it may be argued that mandatory HIV testing and treatment violates rights
to bodily integrity and privacy.
Factually a large number of pregnant woman do not access health services until the last
day of pregnancy. Therefore the access of public health services for women has to
improve tremendously. This requires empowering the girl child so that when she is
pregnant she knows she has to access health services for a safe delivery.
It should also be noted that implementation of this provision will require a tremendous
investment of financial and human resources. Most importantly, no provision has been
made for the continued treatment of the woman after transmission to the child has been
prevented.
.
•t
Furthermore, the treatment referred to in the provision, to prevent transmission to the
child, is problematic under the current scenario in India. Emerging problems include drug
resistance, unavailability of alternatives, and contraindicated medications (for
opportunistic infections) being offered in the absence of alternatives.
14
Ad v/Letter/121 /p/05
12 June 2005
Hon’ble Chief Minister
Shri Dharam Singh
Room 323, Vidhana Soudha
Bangalore-560001
Karnataka
Dear Sir,
This is in respect to the proposed bill to protect the rights and prevent the infection of
persons with HIV/AIDS, currently being considered by the Karnataka State government.
We appreciate the efforts of the concerned persons to enact a statute that will attempt to
protect the rights of persons living with HIV/AIDS and prevent the spread of the
infection. The protection of rights has been recognised by various countries including
India as the optimal strategy for preventing the spread of the infection. Such a public
health strategy is referred to as the “AIDS Paradox”: by protecting the rights of those
infected or at-risk, these persons will not be fearful to access life-saving health
information and services, including prevention information. Thus, by protecting the rights
of individuals, transmission of the infection is prevented and the community as a whole is
protected. It is a praiseworthy step that Karnataka is contemplating a law on HIV/AIDS
that recognises public health strategies based on such realities.
However, we would like to bring to your attention a few key concerns regarding the
proposed bill:
1.
Foremost among these is the fact that the Central government, through the
Advisory Working Group (“AWG”), commissioned the drafting of a national
legislation on HIV/AIDS. The legislation is being presented this week to Dr.
Anbumani Ramadoss, the Health Minister, Ministry of Health, Government of
India, and is to be tabled in Parliament this year. We would like to bring to your
attention that in the event that there are provisions that are absent or contradictory
in the state law, the national law would, under the Constitution, override the state
law in the same field.
2.
Recognising the pressing need for an HIV/AIDS law in Karnataka, and further
taking into consideration the unique cultural, economic, social, and other factors
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present in Karnataka, we acknowledge that Karnataka may require a contextually
appropriate legal response. However, it is imperative to emphasise the following
point: the nature of the epidemic in India is cross-border and not state-specific.
Karnataka, with its central location and high rates of inter and intra state
mobility, demands a legislative response that necessarily takes these realities into
account. An isolated state response that is not coordinated with other states,
particularly those bordering it, will be ineffective. Therefore, we believe that only
a national response is appropriate for the needs of Karnataka, and any state
response must be fashioned in the context of the national response.
3.
Furthermore, we are deeply concerned that the Karnataka proposed bill, unlike the
national draft law, was not created in a consultative and participatory manner,
obtaining inputs from those infected, affected and working for HIV/AIDS. We
believe that a democratic, participatory process, ensuring that people’s voices are
heard, is integral not only to drafting any HIV/AIDS law but also to ensure its
successful implementation.
We sincerely believe that in order to create an appropriate legal response that best
fits the Indian legal and social context vis-a-vis HIV/AIDS, extensive research
must be undertaken of global approaches attempted and lessons learned, rigorous
scrutiny must be performed of these laws and policies and programmes, and a
detailed examination must occur of the application to the Indian legal and social
context. For the national draft law, research was first undertaken of laws in other
parts of the world that culminated in a background book, ‘ Legislating an
Epidemic: HIV/AIDS in India”. We enclose a copy of the book herewith for
your examination.
This was followed by extensive consultations around the country. Consultations
were held with various stakeholders, including: Persons Living With HIV/AIDS,
marginalized populations (e.g. sex workers, men who have sex with men,
injecting drug users), health care workers, employers/employees, NGOs working
with HIV/AIDS, women and children. Each consultation lasted two full days, and
was conducted with thorough involvement from various State AIDS Control
Societies (“SACS”). This process enabled an understanding of realities occurring
at the local level, incorporating a broad cross-section of perspectives and
experiences into the draft law.
What emerged from these consultations was a reaffirmation of our belief that
understanding the experiences and needs of affected persons necessarily entails
taking cognizance of unique regional differences and perspectives, such as HIV
prevalence rates, and social, economic, political, infrastructural, educational and
cultural factors. A regional consultation was held in Bangalore, Karnataka, in
March 2004, with stakeholders from across Karnataka providing critical inputs.
Above all, it was realized that the law on HIV should be evidence and rightsbased and not premised on hypothetical notions of what “should be”. The national
law does not base itself on any ideological precepts. It strongly bases itself on
evidence of successful strategies in India and around the world. It is also rooted
on protection and promotion of the rights of those infected and affected. The
understanding of the HIV paradox is crucial to understanding the battle against
HIV.
We continue to believe that any statutory approach to the HIV/AIDS epidemic
must be informed by these realities, and believe that the national law will
therefore most effectively protect persons and communities significantly affected.
4. The national legislation covers a vast array of topics and is holistic and
comprehensive. The proposed Karnataka bill is neither. There are crucial features
which are absent or not dealt with adequately in the proposed Karnataka bill that
any HIV/AIDS law should provide for, viz. consent, confidentiality and rights
against discrimination, special understanding of vulnerable communities and
provisions on risk reduction, Information/Education/Communication (“IEC”),
implementation mechanisms, a safe working environment, access to anti
retroviral and related treatment to prolong healthy lives of HIV-positive persons,
special promotions of rights of women and children.
Given the devastatingly high number of people living with HIV/AIDS who are
desperately requiring treatment in Karnataka, it is a glaring gap that there is no
sufficient provision for access to medicines and treatment, an essential component
of a comprehensive response to the epidemic.
5. We would like to highlight a few of the most troubling sections of the bill, that
compromise the rights of women, and of persons living with HIV/AIDS, and
which we do not believe will prevent the spread of HIV/AIDS in Karnataka:
•
•
•
•
A mention of pre-marital HIV tests that does not provide for enforceable
rights, and borders on the dangerous mandate of pre-marital mandatory
testing;
A provision on a mandatory duty to disclose that violates the right to
confidentiality and does not provide essential safeguards for Persons
Living With HIV/AIDS;
A provision that proscribes procreation between consenting adults,
violating fundamental rights;
A provision requiring the mandatory testing, counselling and treatment of
pregnant women, violating fundamental rights and placing the women of
Karnataka at heightened risk of negative health effects, domestic violence,
and other deleterious consequences.
These provisions are liable to be challenged and held unconstitutional by courts of
law, on account of the violation of fundamental rights. In fact, data from around
the country maintained by NACO and SACS demonstrates that of the pregnant
women who are reportedly counselled, 97% undergo testing voluntarily.
Therefore, there is no need to test any women mandatorily. This indicates that the
law is not based on ground realities or on any evidence, but is premised on
hypothetical assumptions that are disastrous in the long run.
6. We would like to note that any statute seeking to prevent the HIV/AIDS
infection, and protect rights, must be thoughtfully and precisely drafted.
Unfortunately in the proposed bill, terms are not well-defined, sections exist that
overlap with existing law, there is no clarity as to which sections are applicable to
the public or private sector, proscriptions are recited without judicial avenues
named, and remedies or penalties are not clearly set out, to name a few of the
problems. Furthermore, the functions of the state board and officials are not
explained in relation to the existing national and state bodies and programmes that
already exist. Such ambiguity will only result, we believe, in justice denied to
those who desperately need it and alienate Persons Living With HIV/AIDS from
the rest of society.
We have attached an in-depth legal analysis of the proposed bill that highlights
its poor draftmanship, which we believe will impede its effective implementation
and could potentially worsen the current situation.
7. In conclusion, we request you not to pass this proposed legislation that could
have a negative impact on public health and on individuals. We request you to re
examine the law and strategies that can be employed that will empower the
citizens of Karnataka, particularly persons living with HIV/AIDS, so that they in
turn will effectively prevent the spread of the HIV infection in Karnataka. We
respectfully request you to adopt/wait for the national comprehensive HIV/AIDS
legislation to be enacted, which we believe is the optimal legal and public health
response for Karnataka.
yo.u,
(n.Anand Grover
Project Director
Lawyers Collective HIV/AIDS Unit - Bangalore
Cc:
Dr. Anbumani Ramadoss, Hon’ble Health Minister, Ministry of Health
Dr. Quraishi, Director General, National AIDS Control Organisation
Mr. Patil, Hon’ble Law Minister, Karnataka
Mrs. Mukthamba, Project Director, Karnataka State AIDS Prevention Society
Enclosed:
1. A comment on the proposed Karnataka bill by the Lawyers Collective
HIV/AIDS Unit
2. “Legislating an Epidemic: HIV/AIDS in India”, a publication of the Lawyers
Collective HIV/AIDS Unit
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ways. Three classes of drugs work inside the cell. The newest class of drug - fusion inhibitors - works outside the T-cell. The goal
of therapy is to decrease the amount of virus and increase your T-cells by using a combination of medications.
HEALTHY T-CELL
T-cells (or CD4 cells) are part of your body's
immune system thot helps fight off infections.
T-cells act as your immune systems "quaterback" by organizing
your body's infection fighting team. If too many T-cells are
destroyed then your body's ability to fight off infections is limited.
DRUGS THAT WORK OUTSIDE
THE T-CELL ARE
FUSION INHIBITORS.
In order for HIV to work, it must get inside a T-cell. Fusion
inhibitors block the entry of HIV from getting into your T-cells.
Fusion inhibitors work outside the T-cell acting as a barrier
against HIV.
HIV ANO VIRAL LOAD
:■
■- ....
HIV is a virus that "hi\acfc" your T-ceTIs. HIV
i
destroys the T-cells and mokes more copies of
1 itself by utilizing the cells own internal "machinery" to invade
I other healthy T-cells. Viral load is the measurement of how much
I HIV is in your blood. The higher the viral load the more HIV there
1 is to destroy T-cells.
your T-cells, HIV mokes more copies of itself
DRUGS THAT WORK INSIDE
THE T-CELL ARE THE NRTIs,
NNRTIs, AND THE Pls.
and makes you sick.
These drugs work on HIV after your T-cells have already been
THE INVASION OF HIV
As your viral load increases and gets inside
invaded. These drugs work inside the T-cell.
SUMMARY: HIV invades and kills your healthy
T-cells. Once HIV is inside your T-cells it makes more
copies of itself. Your immune system then breaks
down and you feel sick.
SUMMARY: HIV drugs either work outside or inside
destroying them as well. This will continue until HIV
is stopped.
your T-cells. Only fusion inhibitors work outside your
T-cell and block HIV from getting inside. The NRTIs,
NNRTIs, and Pls work inside your T-cells. The goal is i
to lower HIV in your blood to undetectable levels
[ and increase your number of T-cells.J
ISE fcWS-SfflN 5F
i, <
FINAL SUMMARY:
. • ■ fry.’e less virus
A successful pion of
; ,,n-l
ha Io
(HIV) and more healthy T
bring your virus (HIV) do.■■■. io ur-r-’rech1
Having less virus in yout blood v; . .
immune system, and will make you io.
- Media
RF_DIS_2_T_SUDHA.pdf
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