As an ancillary to sexual health, the term ‘wellbeing’ reveals that its scope is not limited to illness prevention and treatment, but also incorporates features of autonomy and enjoyment concerning sexuality. The right to healthy well-being is not only a fundamental citizen’s right but also an essential human right that deserves to be protected.
The apex court in Bandhua Mukti Morcha v. Union of India &Ors interpreted the right to health under Article 21 of the Constitution, which provides the right to life. The poor living conditions in rural regions are a key factor in the spread of such diseases. The proper healthcare infrastructure is a hardcore need of the hour for India.
Violation of Human Rights in India
Neglected Right to Health – The right to health, which is a basic human right, has been overlooked in India’s constitution. In India, the relevance of healthcare infrastructure is undervalued, and little attention is paid to establishing an effective healthcare system. The health of the nation demonstrates the economic status of the country also. Still, such a right remains a mirage to many
Right to Treatment Violated due to Discrimination in Society- In India, discrimination is a menace that prevails in every area of society. The patients who have STD such as HIV Aids are discriminated against based on a myth that the disease is contagious and other myths of being judged on the personal prospects of an individual.
Instances of Discrimination due to the Illness In one case, a pregnant woman who was HIV-positive was denied treatment by the hospital. The Delhi High Court issued immediate orders to the Hospital in response to a plea filed by her husband, stating that there was an urgent need to provide directions to safeguard the preservation of the women’s and her fetus’s right to health and life.
In LX v. Union of India, the ART was denied to the accused. The Delhi High Court ordered the government to continue providing ART to LX, an accused whose treatment was set to end when he was released from prison. The Court granted his request for ART since the pills were too expensive for him to pay after he was released.
In the landmark case ofMx of Bombay Indian Inhabitant v. M/s. Zy and Anr., the Bombay High Court examined whether a person who has been proven positive for HIV may be pronounced “medically unfit” merely on that basis, denying him employment. Before he regularised work by his employer Zy, a public sector business, Mx, a casual laborer, was tested for HIV. Despite being generally healthy, he was discovered to be HIV-positive, and his contract was canceled as a result. Mx contested his dismissal as well as the company’s circulars requiring HIV testing as a pre-confirmation requirement. He claimed that these actions violated the Indian Constitution’s Article 14 (right to equality), Article 16 (right to nondiscrimination in public employment), and Article 21 (right to life). In this case, the Court held that no person can be deprived of his right to livelihood except according to the procedure established by law and such procedure has to be just fair, and reasonable. Accordingly, it held that a person, who though has some ailment, cannot be denied employment, if he is otherwise qualified, capable of performing normal job functions, and does not pose a substantial risk to others at the workplace during his normal activities. Determining whether a person is unsuitable or incapable of performing the work is a factual matter that should be decided not just by a medical test, but also by a qualified medical expert. Mx’s firing was deemed to be arbitrary, unreasonable, and unconstitutional by the court, which also stated that a public sector employer cannot refuse to hire someone just because they are HIV-positive.
Violation of Confidentiality- The right to privacy is a fundamental right protected by the constitution. People who have been diagnosed with STD have the right to keep their medical status private to avoid social pressure. To ensure privacy, one might use a pseudonym to conceal one’s identity before the court. An instance where such a violation of confidentiality occurred is in Mr. X v. Hospital Z, X a doctor whose HIV-positive status was revealed to a third party by hospital officials petitioned the Supreme Court of India. X had called off his marriage after learning that he was HIV-positive, but the community had severely shunned him as a result of his disclosure.
Initiatives made for the Regulation of Human Rights
Being a signatory of ICCPR and ICESCR, The National Human Rights Commission (NHRC) has recommendations on issues related to HIV/AIDS and human rights concerns. Consent and testing, confidentiality, discrimination in health care, discrimination in the workplace, women in vulnerable situations, children and young people, individuals living with or impacted by HIV/AIDS, and disadvantaged communities are the issues addressed in the guidelines by NHRC. The Commission’s recommendations are based on the report of the National Consultation on HIV/AIDS, which was held in New Delhi on November 24, and 25, 2000, in collaboration with the National AIDS Control Organization (NACO), Lawyers Collective, UN Children’s Fund, and the UN Joint Programme on HIV/AIDS. The NHRC’s recommendations have been forwarded to the appropriate government bodies for action to be taken.
Justice Anand being in the commission of recommendations made by NHRC has suggested several initiatives to all States/UTs, including –
Enact and implement legislation to prohibit discrimination against children living with HIV/AIDS, including the exclusion of such children from attending school.
Address the issue of school fees and other charges that prevent students, particularly females, from attending school.
Provide comprehensive, accurate, and age-appropriate HIV/AIDS information to all children, both in and out of school.
In addition to the above-mentioned recommendations, the government has also initiated the protection of the right of people diagnosed with STD in various legal provisions and acts. Major such acts are as below,
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
The Medical Council of India establishes specific responsibilities for doctors when it comes to HIV/AIDS patients. The following are some of them –
Responsibility to take care of the patient.
Responsibility to inform the patient of disease-related information.
To prevent the Risks to the patient.
Maintain patient information privacy.
Provide details on the various solutions and their advantages.
Contribution of the NGOs in promoting Human Rights
NGOs and civil society organizations have made important contributions to reaching out to the most vulnerable populations with HIV prevention and care programs. At the municipal, state, and national levels, various NGOs/CSOs are working on HIV/AIDS. The National AIDS Control Program acknowledges the value of their involvement, particularly in preventative or targeted interventions for high-risk populations, HIV/AIDS care and support, and general awareness campaigns.
The National AIDS Control Program’s targeted interventions are a critical component. These interventions offer a comprehensive and integrated approach to HIV prevention for marginalized and vulnerable populations like female sex workers (FSW), injecting drug users (IDU), men who have sex with men (MSM), Transgender (TG), and other vulnerable populations like migrant workers and truckers. NACO, in collaboration with CSOs/NGOs, delivers HIV prevention services to these groups at a location and time that is most convenient for them.
The increased involvement and participation by the NGOs at the grassroots level including various districts and states in delivering home-based care, Care & Support Centers, tackling HIV/AIDS stigma and prejudice, and so on. With this in mind, NACO (National Aids Control Organization) offers capacity-building programs for these NGOs/CBOs, as well as encouraging non-health/HIV NGOs to broaden their area of activity to include HIV concerns, particularly prevention and stigma and discrimination. Many non-governmental organizations (NGOs) are in long-term partnership with NACO to safeguard the rights of HIV/AIDS patients at all levels.
Some of the major NGOs working in protecting the Rights of STD Patients are,
The Naz Foundation (India) Trust is a Delhi-based organization that promotes health, gender equality, and human rights. They’ve worked on programs to battle HIV via prevention and care, as well as to eliminate stigma, enhance health, and empower families, over the years.
The Neptune Foundation organizes nutrition camps, distributes rations to HIV-positive families, and assists them in enrolling in different government programs. They now provide monthly ration packs, nutrition powder, and medications to 46 recipients.
The Mahesh Foundation is a non-profit organization dedicated to improving the lives of HIV/AIDS-affected children by giving refuge and care to orphans and other patients.
The India HIV/AIDS Alliance works in collaboration with society, government, and communities in India to promote and maintain HIV responses. They improve community-based HIV programs for vulnerable groups by building capacity, providing technical assistance, and advocating.
Some of the instances where NGOs fighting for the right of the people are below –
In Sankalp Rehabilitation Trust v. Union of India, a PIL was filed by collective lawyers through the Trust to address the difficulties experienced by people living with HIV in receiving healthcare treatments, particularly the prejudice they suffer in hospitals. This PIL was utilized as an oversight tool for the National Antiretroviral (ARV) Rollout Programme until recently, and many concerns relating to access to treatment were resolved as a result of the issuing of substantial orders.
In Voluntary Health Association of Punjab (VHAP) v. The Union of India and Ors., an NGO, filed a petition before the Supreme Court of India in 2003, seeking that HIV-positive persons be given free ARV medications. Under Art. 21 of the Indian Constitution, the petitioner sought recognition and execution of HIV-positive people’s right to health and treatment as part of their right to life. In response to the petition, the government offered free antiretroviral medications for 100,000 individuals in six high-prevalence states, as well as a commitment to treat an extra 15-20 percent of AIDS infections each year for the next five years. In 2006, the Court requested that the Central Government explain its position and why it had failed to fulfill its obligation. This case resulted in a slew of directives aimed at ensuring HIV-positive persons had to access to antiretroviral medications.
India now has all of the required elements, such as laws, norms, commission recommendations, and international principles, to defend people’s rights to health. The most serious shortcoming is the lack of open and public education on STD, as well as campaigning to promote them. More NGOs working with NACO are needed to educate the general public about their rights. These NGOs can also provide free STD prevention education. In India, the compliance action plan is weak, and it requires strong assistance from a suitable administrative body that is answerable for its actions and is always pleased to serve in the same way NGOs took self-volunteering initiatives for the welfare of the society.