HIV and Law
The most important public health lesson emerging from the HIV epidemic is that respecting and protecting the rights of those already exposed to HIV and those most at risk is the most effective way to curb the rapid spread of the epidemic.”
Justice Michael Kirby, AustraliaJustice Michael Kirby,
The HIV epidemic has significant social, economic, legal and human rights dimensions. It has highlighted the inequalities, widespread stigma and discrimination and denial of fundamental human rights that exist in all societies. The link between HIV, law and human rights is twofold. First, HIV has become a ground for denying people their rights. People living with HIV frequently face denial, discrimination and rights violations in public and private institutions – health care settings, employment, educational institutions, family and community, on the sole ground of their HIV status. Secondly, it is the denial of human rights that makes certain populations more vulnerable to HIV than others. Specifically, groups and sub-populations that experience disempowerment and marginalisation because they are dispossessed of rights or are unable to exercise them are vulnerable to contracting HIV.
The public health lesson that has emerged from the HIV epidemic is that protecting rights of those affected by HIV is the best way of preventing the spread of HIV. This lesson translates into programmes and services that are voluntary, confidential and non-discriminatory in nature, in other words, a programme which respects the rights of people. The rationale behind the approach is that HIV prevention, care and treatment will be accessed only if the individual is assured of the right to autonomy and consent, privacy and confidentiality, equality and non-discrimination.
The Lawyers Collective has dealt with the law relating to HIV/AIDS since the late 1980`s when it handled the first HIV litigation (Lucy D`Souza v. State of Goa, AIR 1990 Bom 355)in India. This case saw the incarceration of the celebrated HIV positive activist Dominic D`Souza under the Goa Public Health (Amendment) Act, 1986. It also saw, for the first time, arguments that espoused the need for a human rights based approach to deal with HIV/AIDS and people living with HIV/AIDS.
In 1998, the Lawyers Collective HIV/AIDS Unit was formally set up, based on a realization that law, policy and judicial action, that upheld the human rights framework, had a central role to play in effectively dealing with the spread of the HIV epidemic. The Unit’s aim of crafting a just, rational and non-discriminatory response toHIV is sought to be furthered by policy level advocacy and research, legal-aid services to people living with HIV and public interest litigation on issues pertaining to HIV.
SinceLucy D’Sousa’s Case, the Lawyers Collective has made significant contributions to the development of law on HIV, especially in areas of non-discrimination in employment (MX v. ZY, AIR 1997 Bom 406), right to marry (Mr. X v. Hospital Z, (1998) 8 SCC 296; Mr. X v Hospital Z,(2003) 1 SCC 500), negligence in blood transfusion (P v Union of India, W.P 11591 of 1995) and access to health care (SankalpRehabilitation Trust v. Union of India, W.P. 512 of 1999)
Project Director: Anand Grover
Shivangi Rai (Delhi)
Raman Chawla (including Draft Legislation on HIV) (Delhi)
Nitu Sanadhya (Mumbai)
Riddhi Jasani (Mumbai)
Surekha N (including Draft Legislation on HIV) (Bangalore)
Mihir Samson (Delhi)