HIV/AIDS: Of rights and lives…a continuing battle.

Lorraine Misquith , an Advocacy Officer with Lawyers Collective HIV/AIDS in Mumbai updates us on the legal developments of 2008

As we look forward to 2009 and the challenges that lie ahead, it might be worthwhile to look back at the events of the past year. This year end review attempts to recap HIV and Rights related developments in 2008 and serve as a reminder that more needs to be done.

Understanding AIDS in Asia ….
One of the important events of 2008, was the release of the report entitled - “Redefining AIDS in Asia Headed by former Governor of the Reserve Bank of India, Prof C. Rangarajan, the Commission on AIDS in Asia, completed its two year research on the epidemiological and economic dimensions of the HIV epidemic in Asia. According to the report, the epidemic is centered around unprotected paid sex, sharing of contaminated needles and unprotected sex between men. Men who buy sex, it states, are the single most powerful driving force of Asia’s HIV epidemic, the threat being larger where these men are injecting drug users. The chain of infection, it observes, ends with infection in wives/girlfriends who are relatively unlikely to have more than one partner. It derives therefore that the epidemic is “highly unlikely to sustain itself in the ‘general population’ independently of commercial sex, injecting drug use and sex between men”. While recognizing that discrimination and rights violations of marginalised groups is widespread, the Commission endorses the rights based model that protects rights of people living with and at risk of HIV.  It recommends “focused and scaled up interventions towards unprotected commercial sex, unprotected sex between men and the sharing of contaminated needles and syringes”, validating targeted interventions with most at risk populations under that National AIDS Control Programme in India.  

A second lease on life…
In April 2004, the government announced the first line ARV treatment. Since then 1,80,000 PLHIV have been receiving treatment. However, many had developed resistance to the drugs and were in need of second line drugs, which are more expensive. On 1 December 2007, The Union Health Minister, Dr. Ambumani Ramadoss, announced the launch of free second line ARV drugs. The delivery of second line drugs was started in JJ Hospital, Mumbai in January 2008. A few months later it was also started at Tambaram Hospital, Chennai. This is however not enough as it is not available to many who need it. Also, steps must be taken to ensure that treatment is within reach.  For e.g. patients are reported to have been asked to bear expenses of viral load tests, drugs have been denied to those living outside of the location of the ART Centres etc.

Thumbs up for harm reduction ….
In June 2008, the Union Cabinet approved oral substitution therapy for injecting drug users as a strategy to prevent HIV transmission through risky injecting practices. This decision signifies commitment to evidence informed harm reduction and (hopefully), a shift towards sensible drug control policy. 

On the legal front…
On 16 July 2008, the Supreme Court dismissed the SLP filed by the State of Andhra Pradesh, against an order of  the Andhra Pradesh High Court directing the State to appoint an HIV positive Reserve Police Constable, as a stipendiary cadet Trainee Sub-Inspector. This affirms the right to employment of people living with HIV (PLHA) in jobs that require high fitness standards. 

The Supreme Court confirmed another order securing patient’s rights.  Dismissing the hospital’s appeal, the Court upheld the grant of compensation by the National Consumer Redressal Forum in a matter concerning transfusion of HIV infected blood. In this case, the wife of Mr. Y had undergone hysterectomy at Hospital M, where she was transfused HIV infected blood.  After the wife’s death,   Mr. Y filed a complaint at the State Consumer Redressal Forum, alleging deficiency in services by the Hospital M and the blood bank that supplied the infected blood. Following rejecting of the complaint, Mr. Y approached the National Commission, which held that consent for blood transfusion was not taken and concerned doctor had negligently transfused blood. It also held the blood bank liable for failing to screen the blood for HIV antibodies. As compensation, the Commission ordered a sum of Rs, 4, 00,000 along with an interest @ 6% p.a. from the date of filing the complaint. Aggrieved, the Hospital M filed an appeal at the Supreme Court, which was dismissed on 14 July 2008. 

In a decision that lays down the position of law on consent for medical procedures, the Supreme Court in the case of Samira Kohli v. Dr. Prabha Manchanda and Anr, held that consent for a diagnostic purpose cannot be considered authorization for a therapeutic surgery; except in emergency, where the patient is unconscious and when necessary to save life and preserve health. The Supreme Court affirmed the Bolam rule where the nature and extent of information given prior to a medical intervention is determined by a body of medical persons skilled and experienced in a particular field.  The Court held that adequate information provided by the doctor must include nature and purpose of the procedure, benefits, risks and alternatives as well as consequences of refusal. It is hoped that the decision will positively influence medical practice in India, where patient’s autonomy and consent is given scant regard.

PIL Updates
Challenge to anti-sodomy law
After seven long years of wait, the writ petition challenging the constitutional validity of Section 377 of the Indian Penal Code, has drawn to a close. On 7 Novermber 2008, arguments in the matter  Naz Foundation (India) Trust v. Government of India, Delhi and Ors Writ Petition (Civil) No. 7455 of 2001, concluded before a division bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court.

The petitioners argued that Section 377 is violative of the constitutionally guaranteed fundamental rights of  men who have sex with men (MSM) including the right to life and liberty, health and privacy (Article 21), right to equality (Articles 14), the right not to be discriminated on the grounds of sex (Article 15), the right to freedom of expression (Article 19). The respondent – Union of India defended the law for purportedly preserving health, order and morality.  Orders in the matter stand reserved

Safeguarding the right to health of PLHA..
1 October 2008 brought more good news for PLHA, with the Supreme Court passing interim directions in the matter of Sankalp Rehabilitation Trust v. Union of India. The petition was filed in 1998 or 1999?? (CHECK) pursuant to incidents of HIV related discrimination in public hospitals. Later, it was amended to address gaps in the delivery of ARV treatment in the public sector.   On the direction of the Supreme Court a ‘19 point recommendation’ was formulated in conjunction with NACO (for the government), PLHA networks and the Lawyers Collective HIV/AIDS Unit. The directions seek to broadly ensure the right of PLHIV to universal access to healthcare. The next challenge is to ensure their implementation in letter and spirit. 

Other important legal developments
Access to HIV services in prisons
The Bombay High Court in a proactive move has broadened the scope of a bail application made by an HIV positive prisoner, to look into testing and treatment for HIV in prisons. Anand Grover has been appointed amicus curiae in the matter, which promises to expand access to HIV related services to prisons and custodial settings. Under the directions of the Court, the Maharashtra State AIDS Control Society has, started pilot projects on voluntary counseling and testing in four prisons in Maharashtra. Given the lack of attention to HIV in jails, this step, is a welcome one ….

On the fight for affordable medicines…
Patent on Nevirapine rejected
The Delhi Patent Office, on 19 June 2008, rejected a patent application for Nevirapine, filed by multinational pharmaceutical company Boehringer Ingelheim, claiming a particular form (‘hemi-hydrate’ crystalline form) of Nevirapine which is used in manufacturing syrup formulations of the critical AIDS drug, which is particularly important for children living with HIV, who are unable to swallow tablets. The rejection was hailed as a victory for treatment access; of patients over profits.

Of  fair and just process .. …
In an extraordinary move which reflects the weight of  due process of law, the Madras High Court set aside the patent granted to F. Hoffman La Roche AG (Roche) on the drug Valgancyclovir. On 2 December 2008, hope reigned high for Indian patients’ groups—Indian Network for People Living with HIV/AIDS (INP+) and Tamilnadu Network of People with HIV/AIDS (TNNP+) —who challenged the Chennai Patent Office’s decision to grant a patent without hearing the pre-grant opposition filed by them. Valganciclovir is crucial for treatment of cytomegalovirus (CMV) retinitis, an opportunistic infection that affects PLHA and to prevent CMV infection in patients who have received organ transplants.

The petitioners contended that the denial of hearing was wrong as it not only disregards a mandatory requirement of the Indian Patent Law but also contravenes principles of natural justice. Agreeing with the petitioners,  the Bench comprising Justice A. K. Ganguly and Justice Ibrahim Kalifulla, set aside the patent and remanded the matter back to the Chennai Patent Office.

Update on Gleevec
Following the Supreme Court’s directives, a newly constituted technical panel of the Intellectual Property Appellate Board (IPAB) heard the appeal by Novartis on Gleevec, an anti-cancer drug, whose application for a patent was rejected by the Chennai Patent Office in 2006. Novartis is claiming a patent on the beta crystalline form of imatinib mesylate, which is the active ingredient of Gleevec. Mr. Anand Grover, the counsel of behalf of the petitioners, the Cancer Patients Aid Association (CPAA) argued that claims made by Novartis did not satisfy patentability criteria under the India Patent law: that it was already publicly known, it did not involve an inventive step, it was not an invention etc. The petitioner also argued that under Section 3 (d) -which is being increasingly used against frivolous patents- that a new form of a known substance, where no efficacy is shown cannot be patented. It is hoped that a favourable order rejecting the patent on an otherwise exorbitantly priced Gleevec is passed…

Injunction on life saving drug denied
Jusitce Ravindra Bhat, of the Delhi High Court, through an unprecedented judgement refused to grant a permanent injunction against the generic version of the cancer drug Erlotinib. The action was brought by F. Hoffman La-Roche who has a patent on the drug against Cipla’s generic version of the drug, which was being made available at one third the price. The Court while weighing the two competing public interests of granting injunction to affirm a patent during the pendency of an infringement action and access for people to a life saving drug, held in favour of the latter holding that the damage cannot be restituted in monetary terms for it was irreparable and uncompensatable…

Legislative developments

Update on  HIV/AIDS Bill
In October 2008, the Law Ministry, with whom the HIV/AIDS Bill was pending, returned the Bill to NACO with substantive changes. In its version, the Law Ministry has deleted important provisions of the Bill like Access to Treatment and Risk Reduction, which form the core of the National AIDS Control Programme. Chapters on Discrimination, Confidentiality and Special Provisions for Women and Children have been diluted, undermining legal protection for people infected and affected by HIV. The Law Ministry has introduced draconian measures like mandatory testing, tracing and isolation of people infected or at risk of HIV and AIDS, which is a serious threat to the rights based model that the Bill is premised upon. Opposing this, the National Coalition of HIV/AIDS, launched protests across the country. Press conferences, Dharnas and rallies were held in many cities including Mumbai, Bangalore, Chennai, Calcutta, Pune and Surat  coinciding with World AIDS Day (1 December) and Human Rights Day (10 December). On 10 December 2008, about 200 people, mainly PLHIV, protested outside the Law Ministry, asking that the original version of the Bill be restored. In response, the Law Minister, Shri Hans Raj Bhardwaj received a delegation of protestors and after hearing their concerns, assured his Ministry’s cooperation to resolve the matter. The Law Ministry has now initiated negotiations with NACO to clear the Bill and table it in the next session of parliament.

All quiet on the ITPA front…
In April 2008, the Group of Ministers (GoM) concluded its deliberations of the proposed official amendments to the Immoral Traffic (Prevention) Amendment Bill, 2006.  Sex workers and AIDS service organizations continued to put pressure on the Government to reject the amendments. Two prominent ministers publicly spoke out against the Bill, which seeks to criminalise sex work and drive it underground.  All eyes are now on the UPA government and the last parliament session in February 2009.

The year that was …….
Overall, 2008 saw exceptional wins, especially Court orders preserving PLHAs’ right to health and employment. Legislative inaction, however, remained, with the HIV Bill still not enacted. And with Parliamentary elections round the corner, the biggest challenge for 2009 will be to sustain political interest in and support for HIV and human rights….