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HIV And Aids Legal Provisions With Special Reference To Child Protection Measures In India

Millions of children are today either infected or affected with HIV/AIDS. Children are becoming orphans and are deprived of parental care and protection due to untimely deaths of their parents. While mother-to-child transmission of HIV/AIDS is the most common way of infection among children, with increasing number of cases of child sexual abuse and incest, many more children are likely to fall prey to the disease. Drug abuse among children and young people also poses a threat.

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome, commonly referred to as HIV/AIDS, is amongst the most catastrophic epidemics the world has ever witnessed. The World Health Organization estimates that nearly 35 million people have died from AIDS-related causes as of July 2016 and 36.7 million people worldwide were living with HIV/AIDS at the end of 2015. HIV attacks the body's immune system, destroying cells that fight off infections.

The human body can never get rid of HIV completely causing it to be a lifelong disease. If left untreated, HIV can lead to AIDS. This is the final stage of HIV when the immune system becomes severely damaged and vulnerable to opportunistic infections. Depending on the degree of severity, people who are diagnosed with AIDS survive about 1-3 years.

India's first reported HIV case was among the sex workers in Chennai, Tamil Nadu in 1986. Given the rapid spread of HIV/AIDS in the late 1980's, India launched the first National AIDS Control Program (1992-1999) to coordinate national efforts covering surveillance, blood screening, and health education2 where the National AIDS Control Organization (NACO) was to oversee the implementation of this program.3

Despite these national efforts, the spread of this virus continued and became more prominent among the general population previously seen as low-risk. During this time there was an emergence of community-based organizations (CBOs) that provided services to people infected and affected by HIV based on observed need. With the free antiretroviral treatment (ART) initiative laid out by the Government of India in 2004, the battle against HIV/AIDS shifted from mostly providing a safe haven for those that were dying to providing the care, treatment, and support that people infected and affected with HIV need in order to live healthier lives.

People living with HIV/AIDS face discrimination, especially in the villages, where they are often treated as outcastes. Their children also suffer - whether they have HIV/AIDS or not - as they are treated with contempt in schools and the community. When the parents of these children die, no one comes forward to take their responsibility, not even their relatives.

HIV/AIDS is one of the biggest challenges faced by India. There are about three million people suffering from HIV/AIDS in India. The socioeconomic condition of the country coupled with the traditional outlook and the myths associated with the things has made it more vulnerable to the disease People infected with HIV/AIDS are discriminated at every place and are looked upon in the society.
  1. Legal Provisions In International Conventions

    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 nondiscrimination 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.

    The Universal Declaration of Human Rights also lays down that the principle of non-discrimination is fundamental to human rights law. It equally applies to people suffering from HIV/AIDS because they have to suffer a very high level of stigma and discrimination. It lays down certain work related provisions for a HIV/AIDS infected people which includes right to life, liberty and security of person, no person should be subjected to forced testing and/or treatment or otherwise cruel or degrading treatment, all people including HIV+ persons have the right to work and participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits and all persons including the people living with a positive 'HIV' diagnosis are equal before the law and are entitled without any discrimination to equal protection by the law. People diagnosed with HIV+ are also entitled the rights enshrined in Art. 25(1) of the Declaration which includes the right to adequate standard of living, assistance, medical care and necessary social services, and the right to security in the event of unemployment.

    The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage in law reform. It also guides the states to identify legal obstacles so as to form an effective strategy of HIV/AIDS prevention and care. It also lays stress on enactment of anti-discrimination and other protective laws that would protect HIV/AIDS diagnosed people from discrimination in both the public and private sectors would ensure their privacy, confidentiality and ethics in research involving human subjects and would lay emphasis on education and conciliation and provide for speedy and effective administrative and civil remedies.
  2. Legislations/Policies/Guidelines In India

    Law and policy are the bulwarks of human rights. The provisions in the Constitution of India protect the rights of HIV/AIDS affected people. Article 14 guarantees the right of equality of treatment to HIV/AIDS patients. Articles 15 and 16 prohibit discrimination in public facilities and public employment respectively.

    Article 21 protects the right to life, personal liberty and ensures the right to privacy. Chapter IV enshrining The Directive Principles of State Policy directs States to ensure that all citizens including HIV/AIDS patients have an adequate mean of livelihood, to make provisions for securing just and humane conditions of work, to improve public health vide Article 39, 42 and 47 respectively.9

    However, these general provisions of the constitution were insufficient in dealing with the specific problems of the HIV/AIDS community. In an attempt to address the looming and unresolved social, economic and legal struggles faced by HIV affected people in India, the first HIV/AIDS Bill was drafted in 1989.

    However, it was subsequently withdrawn as it had several discriminatory provisions such as mandatory testing and confinement of infected persons. The need for a new HIV/AIDS Bill was recognized at the International Policy Makers Conference on HIV/AIDS, held in New Delhi in May 2002. An Advisory Working Group (AWG), spearheaded by the National AIDS Control Organization (hereinafter NACO), was set up.

    It comprised of members from civil society, PLWHA, and the government. The NGO Lawyers Collective's HIV/AIDS Unit was approached to draft a new HIV legislation. After consultation with PLWHA, marginalized groups, healthcare workers, women and children's groups, state governments, NGOs, and lawyers rights centric draft Bill was submitted to NACO.
    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.
  3. 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.
  4. The Evidence Of HIV And Child Protection Linkages

    There is ample evidence of increased vulnerability of HIV-affected children to child protection violations:
    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.
HIV/AIDS does not discriminate on the basis of age, skin, colour, caste, class, religion, geographical location, and moral turpitude, good or bad deeds. Any human can become infected with HIV i.e. human immunodeficiency virus that causes AIDS is transmitted through contact with an HIV positive person's infected body fluids, such as semen, pre-ejaculate fluid, vaginal fluids, blood, or breast milk.

HIV can also be transmitted through needles contaminated with HIV-infected blood, including needles used for injecting drugs, tattooing or body piercing.
Millions of children are today either infected or affected with HIV/AIDS. Children are becoming orphans and are deprived of parental care and protection due to untimely deaths of their parents. While mother-to-child transmission of HIV/AIDS is the most common way of infection among children, with increasing number of cases of child sexual abuse and incest, many more children are likely to fall prey to the disease. Drug abuse among children and young people also poses a threat.

In such a situation it is not fair to withhold HIV/AIDS related information from children and deny them their right to know how they can protect themselves. We need to understand that HIV cannot be transmitted by touching an infected kid or by sitting next to the child or by hugging and kissing or playing with an infected person. It is true that children's right to information and participation is based on the principles of best interest of the child and therefore, age-specificities need to be borne in mind while discussing sexuality, reproductive health or HIV/AIDS with children. The fact is that we are not prepared in our own minds to deal with questions our children might have and therefore find excuses to avoid any discussion.

Instead of educating people about HIV/AIDS, in the past many schools have thrown out children simply because they came from families with some history of HIV/AIDS or because there was some apprehension of a family member being HIV positive. Denying them access to basic services and human rights on grounds of HIV/AIDS, amounts to discrimination.

Knowledge about a person being HIV-positive should be used to seek early treatment that can help the person stay healthy longer and enable her/him not to pass on the virus to someone else. In fact if children who seem to be at real risk are thrown out of schools there is no way to monitor their health and provide them assistance, and this way the risk to others may be even more. Discrimination will not put an end to this growing menace.



Award Winning Article Is Written By: Mr.Junaid ul Islam PhD Scholar Law
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