Legal Provisions In International Conventions

Legislations/Policies/Guidelines In India

1. The Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017:
   The Indian Parliament has passed the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) (Prevention and Control) Act, 2017. It is the first national HIV law in South Asia. There is a need to protect and secure the human rights of persons who are HIV-positive, affected by Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and vulnerable to the said virus and syndrome; there is a need to protect the rights of healthcare providers and other persons in relation to Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome.
   
   HIV or Human Immunodeficiency Virus is, simply put a sexually transmitted virus that attacks your immune system or more specifically a type of white blood cell called the T-helper cell. This means that if left untreated, a person over time will gradually become vulnerable to even the most common of infections or diseases. HIV is such a dangerous disease which kills the patient silently.
   
   Moreover, the HIV infected persons psychological depressed and frustrates. HIV is a lifelong disease that people must live with; however, more than the disease itself it is the public stigma and prejudice attached to this particular disease that can make it difficult for a person to live peacefully. With people having gross misconceptions of what exactly is HIV, thinking it is contagious like a common cold and more, an HIV positive person must suffer through a lot of discrimination by the society. Helping HIV infected person with his legal rights is necessary as that will help him to survive little longer.
   
   Union of India has signed various treaties, agreements and declarations relating to HIV/AIDS, the protection of 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.
   
   The two conventions that aim at non discrimination on the basis of creed, political affiliation, gender, or race are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights. They also cover within their ambit non-discrimination of the people infected with HIV.
    
2. Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002):The Medical Council of India lays down certain duties that have to be observed by the doctors towards the HIV/AIDS patients.
   These are enumerated below:
   
   1. Duty to take care and to take informed consent from the patient.
   2. Disclosure of information & risks to the patient
   3. Provide information of options available & benefits
   4. Duty to warn
   5. To admit patient in emergency without consent
   6. The physician should not abandon his duty for fear of contracting the disease.
       
3. Immoral Trafficking Prevention Act, 1986:
   Immoral Trafficking Prevention Act, 1986 deals with sex work in India. The Act provides for conducting compulsory medical examination for detection of HIV/AIDS.
    
4. Other Legislations, polices and agencies which provide protection to the HIV/AIDS patients are:
   
   1. Indian Penal Code, 1860
   2. Drugs and Cosmetic Act, 1940
   3. Juvenile Justice (Care and Protection of Children) Act, 2015.
   4. Maharashtra Protection of Commercial Sex Workers, Bill, 1994.
   5. Medical Termination of Pregnancy Act, 1971
   6. Narcotic Drugs and Psychotropic Substances Act, 1985.
   7. National AIDS Control Organization (NACO), Department of AIDS
      Control, Policies and Guidelines.
       
5. Guidelines for HIV infected Adults and Adolescents:
   
   1. Condom Promotion by SACS - Operational Guidelines
   2. Data Sharing Guidelines
   3. Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006
   4. Guidelines for HIV Testing, March 2007
   5. Guidelines for Network of Indian Institutions for HIV/AIDS Research (NIHAR).
   6. Guidelines for Prevention and Management of Common Opportunistic
   7. Infections Guidelines for Setting up Blood Storage Centers
   8. Link Worker Scheme(LWS) Operational Guidelines
   9. NACO Ethical Guidelines for Operational Research
   10. NACO IEC Operational Guidelines
   11. NACO Research Fellowship-Scheme Under NACP-III
   12. National Guidelines on Prevention, Management & Control of Reproductive Tract Infection
   13. National Guidelines on Prevention, Management & Control of RTI including STI.
        
6. National Policy on HIV/AIDS and the World of Work:
   
   1. Procurement Manual for National AIDS Control Programme (NACP III) Standards for Blood Banks and Blood Transfusion Services
   2. Surveillance Operational Guidelines
   3. Targeted Intervention for Migrants Operational Guidelines
       
7. Targeted Interventions for High Risk Groups (HRGs):
   
   1. Targeted Interventions for Truckers Operational Guidelines
   2. Voluntary Blood Donation An Operational Guidelines
   3. National AIDS Control and Prevention Policy (NACPC)
   4. National Blood Policy (NIHFW)
   5. National AIDS Control Programme (NIHFW)
   6. National AIDS Prevention and Control Policy
   7. Suppression of Immoral Traffic in Women and Girls Act, 1956
   8. Young Persons (Harmful Publications) Act, 1956
   9. National AIDS Prevention and Control Policy
   10. The Indian Employers' Statement of Commitment on HIV/AIDS
   11. Joint Statement of Commitment on HIV/AIDS of the Central Trade Unions in India
   12. ILO Code of Practice on HIV/AIDS and the World of Work
   13. State AIDS Control Societies
   14. National Human Rights Commission.
        
8. Rights of HIV affected People:
   While a specific law to protect the rights of HIV positive people is in the process of being formulated, there are certain basic rights that the Constitution of India guarantees to all citizens and stand applicable even if a person if HIV positive. These are:
   
   1. Right to Informed Consent:
      Consent has to be free. It should not be obtained by coercion, mistake, fraud, undue influence or misrepresentation. 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. 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, the concerned person's rights may have been violated and he/she can seek a remedy in court.
       
   2. Right to Confidentiality:
      When a person tells someone in whom she/he places trust something in confidence, it is meant to be confidential. Sharing it with others thus amounts to a breach of confidentiality. A doctor's primary duty is towards the patient and she/he should maintain the confidentiality of information imparted by the patient. If a person's confidentiality is either likely to be breached or has been beached, the person has the right to go to court and sue for damages. People living with HIV/AIDS (PLWHAs) 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 the real name.). This beneficent strategy ensures that PLWHAs can seek justice without fear of social ostracism or discrimination.
       
   3. Right Against Discrimination:
      The right to equal treatment is a fundamental right. The law provides that a person may not be discriminated against on any grounds of sex, religion, caste, creed, descent or place of birth etc. either socially or professionally by a government-run or government controlled institution. 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 remedy in law. Similarly, a person with HIV may not be discriminated against due to her/his positive status in an employment scenario. Termination in such a situation would give that person an opportunity to seek legal redress. Someone who is HIV positive but otherwise fit to continue the job without posing substantial risk to others cannot be terminated from employment. This has been held by the Bombay High Court in May 1997.
       

Special Provisions Relating To Children Infected With HIV Or AIDS

1. The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017:
   Section 2(c) defines child affected by HIV means a person below the age of eighteen years, who is HIV-positive or whose parent or guardian (with whom such child normally resides) is HIV-positive or has lost a parent or guardian (with whom such child resided) due to AIDS or lives in a household fostering children orphaned by AIDS.
   
   Section 16 provides for the Protection of property of children affected by HIV or AIDS:
   
   1. The Central Government or the State Government, as the case may be, shall take appropriate steps to protect the property of children affected by HIV or AIDS for the protection of property of child affected by HIV or AIDS.
       
   2. The parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child's house.
      
      Explanation: For the purpose of this section, Child Welfare Committee means a Committee set-up under the Juvenile Justice (Care and Protection of Children) Act.
      
      Section 18 lays down provisions for Women and children infected with HIV or AIDS:
      
      1. The Central Government shall lay down guidelines for care, support and treatment of children infected with HIV or AIDS.
          
      2. Without prejudice to the generality of the provisions of sub-section (1) and notwithstanding anything contained in any other law for the time being in force, the Central Government, or the State Government as the case may be, shall take measures to counsel and provide information regarding the outcome of pregnancy and HIV-related treatment to the HIV infected women.
          
      3. No HIV positive woman, who is pregnant, shall be subjected to sterilisation or abortion without obtaining her informed consent.
      
      Section 32 provides for Recognition of guardianship of older sibling:
      Notwithstanding anything contained in any law for the time being in force, a person below the age of eighteen but not below twelve years, who has sufficient maturity of understanding and who is managing the affairs of his family affected by HIV and AIDS, shall be competent to act as guardian of other sibling below the age of eighteen years for the following purposes, namely:
      
      1. admission to educational establishments;
      2. care and protection;
      3. treatment;
      4. operating bank accounts;
      5. managing property; and
      6. any other purpose that may be required to discharge his duties as a guardian.
         
         Explanation: For the purposes of this section, a family affected by HIV or AIDS means where both parents and the legal guardian is incapacitated due to HIV-related illness or AIDS or the legal guardian and parents are unable to discharge their duties in relation to such children.
          
2. The Juvenile Justice (Care and Protection of Children) Act, 2015:
   The definition of "child in need of care and protection" under Section 2 (14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 also includes children who are mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases and do not have anyone to support or look after them. A differently abled person has been described as one who finds it difficult to perform normal physical and/or mental function because of an impairment When the normal functioning of an individual is interfered with by such impairment, the person becomes a handicapped.
   
   Therefore, children who suffer from such impairment require care and special attention. However, since such children are generally educated in separate schools their interaction with other children is reduced to the minimum. As a result such children remain isolated and it becomes difficult to integrate them in society. This can quite often lead to lack of self- confidence, low self esteem and feeling of being discriminated by others. Consequently these differently - abled children are also most likely to be neglected, abused and abandoned.
   
   The problem of HIV/ AIDS is one which has affected people of all countries. It has assumed epidemic proportions and is a matter of serious concern throughout the world. Not only adults but children have also not been spared by this disease.. Children who are infected with HIV/AIDS are majority of the time victims of circumstances. Consequently such children are at the risk of facing social exclusion.
   
   Therefore, such children need all types of case especially residential care, foster care, medical care, medical follow up and other forms of protection.
   
   Some of the children who are more vulnerable are:
   
   1. Children who are confirmed as infected by the virus
   2. Children born to HIV positive mothers acquiring the virus in the womb.
   3. Children who require blood transfusion due to any illness.
   4. Children who are addicted to drugs.
   5. Children who are sexually abused and exploited.
   6. Children become affected because their parents or siblings are HIV positive.
   7. Children vulnerable to HIV in high- risk communities.
       
3. The Hon'ble Supreme Court rules that children living with HIV should not be discriminated In a public interest litigation brought by Naz (Organization) India in 2015, India's Supreme Court held that children living with or affected by HIV (that is, children who are HIV positive and children who are HIV negative but whose parents are HIV positive) should be afforded protected status and included as a child belonging to a disadvantaged group' under India's Right of Children to Free and Compulsory Education (RTE) Act (2009). The extension of protected status to children living with or affected by HIV means that they are now entitled to special protections and measures, under the terms of the Right to Education Act.
    

The Evidence Of HIV And Child Protection Linkages

1. Children affected by HIV:
   
   1. Children orphaned by or living with HIV-positive sick caregivers face an increased risk of physical and emotional abuse compared to other children.
   2. Caregivers of AIDS-orphaned children have higher rates of depression than other caregivers this leads to increased mental health and behavioral problems in children.
   3. HIV-affected children experience greater stigma, bullying and emotional abuse than their peers.
   4. Children who are orphaned or are caregivers to an AIDS-sick person have higher rates of transactional sex or increased (unsafe) sexual activity and/or sexual abuse.
   5. Children orphaned by HIV are twice as likely as non-orphans to have HIV.
       
2. Children who experience protection violations:
   
   1. There is a direct link between childhood sexual, emotional and physical abuse and HIV infection in later life for both women and men in high-HIV prevalence areas.
   2. Childhood sexual abuse is linked to higher rates of sexual exploitation and other HIV risks, such as earlier initiation into injecting drug use, sex work and living on the streets, across all regions.
       
3. Positive experiences in promoting resilience:
   
   1. Interventions that focus on building up individual, family and community resilience and supporting existing protective factors show that it is possible to stop the vicious cycle of escalating risk and harm.
   2. Adults living with HIV face unique challenges in providing a protective and caring environment for their children, especially where services are limited.
   3. HIV stigma hampers the ability of interventions that support parents and caregivers to have positive effects on the whole family.
   4. Children living in extended family care and children without family care, largely due to HIV, are not receiving the protection they need.
   5. A review of various studies found that orphaned children consistently experienced discrimination within the home, material and educational neglect, excessive child labour, exploitation by family members and psychological, sexual and physical abuse.
   6. Psychosocial support for children living with HIV improves HIV treatment outcomes.
   7. Physical and sexual abuse in childhood is high and significantly increases the risk of HIV in adulthood for both men and women.