HIV/AIDS is one of the biggest challenges faced by the world. Poor literacy
level is one of the biggest reasons for the spread of the disease. The virus
attacks the immune system and makes the body vulnerable to various types of
life-threatening infections such as cancers.
HIV is transmitted mainly through sexual intercourse (including oral, vaginal,
and anal sex), through transfusion of infected blood, by use of non-sterile, HIV
infected or contaminated syringes and needles and from an infected mother to her
unborn child and through lactating. HIV infects vital cells in the human immune
system such as T cells. A view to protect the rights of patients suffering from
HIV and to spread communicable diseases is an offense.
The Government has provided various rights to the HIV patient, but duty is
imposed on the HIV/AIDS patient to prevent transmission of HIV virus by various
means. Indian Government follows SOP for prevention and giving medications to
HIV person, and they maintain the record of HIV patients so that they can easily
get concerned related drug from the government hospital.
HIV patients who had first- line antiretroviral therapy prior to 2004 but who
became resistant to these drugs will now receive the lifesaving second line
treatment free of cost from NACO.
India has taken several steps to protect HIV /AIDS persons by providing a number
of pacts. The Universal Declaration of Human Rights also states that the
perception of non-discrimination is fundamental to human rights law. This
equally applies to humans suffering from HIV/AIDS as they have to face a very
high level of humiliation and discrimination. This article takes in-depth about
the criminal elements of HIV AIDs in the world as well as its awareness in our
HIV/AIDS is one of the biggest challenges confronted by the world. The
socioeconomic repute of the country is related to myths that have made it more
vulnerable to the disease. Poor literacy level is one of the biggest reasons for
the spread of the disease. There is a very serious social stigma attached to
this disease. People infected with HIV/AIDS are discriminated against everywhere
and this disease is not totally cured but measures can be observed to forestall
it and in addition, spread.
Providing knowledge and creating awareness among people about the disease, its
causes, and its effects can help to prevent and further spread. Acquired Immune
Deficiency Syndrome (AIDS) is the breakdown of the immune system. This is the
closing stage of HIV infection, which causes extreme damage to the immune system
and causes fatal infections. It is a sickness in which the human body's defense
system is weakened AIDS is triggered by a virus known as Human
Immunodeficiency Virus (HIV).
The virus attacks the immune system and makes the body vulnerable to various
types of life-threatening infections such as cancer and T.B. HIV is transmitted
mainly through sexual intercourse (including oral, vaginal, and anal sex),
through transfusion of infected blood, by use of non-sterile, HIV-infected, or
contaminated syringes and needles, and from an infected mother to her unborn
child. An Effective vaccine still does not exist. Millions of others are at risk
of infection in the next decade, including many vulnerable populations such as
women, children, men having sex with men (MSM) and commercial sex workers.
Medications of HIV+
HIV patients who had first line antiretroviral therapy prior to 2004 but who
became resistant to these drugs will now receive the lifesaving second line
treatment free of cost from NACO. Second line treatment is quite expensive and
not affordable to the common man. ART is only the addressable treatment that
prevents HIV. These drugs slow the replication of HIV and delay the decline of
immunity and lead to the improvement in the quality of life and survival.
The Bench had made it clear that it was not for the state that finance is a
hindrance as the matter pertains to human life.1 In India 2.3 million is
infected.2The first line drug cost in India Rs. 5000 per month and second line
drug cost 35000 per month. Second line drug is called a lifesaving drug. Parveen
(NGO member) said In India only antiretroviral therapy (ART) drugs are given
free rest of the cost has to bear for secondary diseases such as eczema.
Other countries that are providing free medications to HIV+ patients Zambia,
Thailand, Ethiopia, Brazil, Botswana, Tanzania, Senegal 3. In countries like
America only a few health care centers are providing free or low-cost care to
people. The Cost of medications occurring in America is about $420,285 (2019
US$) discounted (3%) and $1,079,999 per year, it can be compensated if opted for
health insurance and same as in Canada value of the dollar may vary.
Entry is restricted to people with HIV+ in many countries like Canada. This
means that foreigners with HIV+ may be refused entry, denied permission to work
or settle, or even be deported. Some countries ban all foreign HIV-positive
persons from entering a country; others have no entry restrictions for tourists
but require individuals to be HIV negative to apply for a work or residence
permit such as Canada. China and America are two examples of countries that
recently lifted their restrictions on HIV-positive visitors.4
Can Antiretroviral Drugs Stop Transmission?
The HIV, HBsAg, and HCV is a combination rapid test for assessing these three
infectious diseases (HIV, Hepatitis B, and Hepatitis Another CD -4 count test is
used to measure the immunity levels of an infected person, the damage covered by
the virus. Healthy adults have 500-1500 cells cubic millimeter. As an infected
person goes down to 60 cells cubic millimeters. ART is indicated when a positive
person registers a CD-4 count under 200 cubic millimeters.
The risk of HIV transmission is eliminated by antiretroviral drugs5. For each
couple, one of the partners had HIV and was taking antiretroviral drugs to
suppress it. Antiretroviral therapy suppresses it from making copies of itself.
When a person living with HIV begins an antiretroviral treatment regimen, their
viral load is reduced. For almost everyone who starts taking their HIV
medication as prescribed, the viral load will drop to an undetectable level in
six months or less.
And unable to pass until the patient continues to take HIV treatments and remain
undetectable. This means a patient can go for cohabitation without a condom
without worrying about passing HIV on to a partner. PrEP (pre-exposure
prophylaxis) is medicine people at risk for HIV take to prevent getting HIV from
sex or injection drug use.
PEP (post-exposure prophylaxis) means taking medicine to prevent HIV after a
possible exposure. PEP means taking emergency medications to prevent potential
exposure to HIV must be started within 72 hours. The above drugs are not
expensive. Biologically implausible transmission through kissing, sharing food,
and mosquito and animal bites have been no documented cases.
With a view to protect the rights of patients suffering from HIV. The Ministry
of Health and Family Welfare (Prevention and Control) Act, 2017. This was done
after the landmark move of the Supreme Court to do away with the provision of
section 3776 of the Indian Penal Code (IPC).
This Act also sought to prevent and control the spread of HIV and AIDS and
further created a procedure for redressal of any complaint related to this issue
and establishments necessary to protect their rights. In addition, this Act also
stated that no HIV test, medical treatment, or research may be permitted to be
carried out on any person without his consent, and also, no character shall be
sure to divulge that fact.
Not that they are suffering from HIV to get
employment or any service. The Immoral Trafficking Prevention Act prohibits all
persons from publishing any facts or advocating any unpleasant feelings of
hatred against HIV-positive7.
And it is related to sex workers in India. Named
HIV reporting raises privacy concerns, with advocates claiming that it deters
people from being tested. Jurisdictions varies in their approach to HIV
reporting, with some requiring names to avoid duplication, and others requiring
a unique identifier to protect privacy.
Legal authorization for partner
notification is also used to enable public health professionals to track and
prevent HIV infection to seek information about an infected person's sexual and
needle sharing partners, this will encourage the infected person to voluntarily
inform their partners of the risk of HIV infection. If an infected individual is
willing or unwilling or unable to notify partners, then they officially may
legally be authorized to do so as in Singapore. In contrast, governments in
Bangladesh prohibit disclosure without consent.
The Medical Council of India has positive obligations toward HIV patients such
as disclosing statistics about their conditions. HIV/AIDs BILL,2007 The Bill is
applicable in the matter of discrimination against HIV/AIDS patients in
employment. education, healthcare, travel, insurance, dwelling, property, etc.,
relying on their HIV status.
The Bombay High Court has held that a person, can
no longer be denied employment merely on the ground that he or she is HIV 8. It
further guarantees confidentiality. The Supreme Court of India has also held
that the patients suffering from 'AIDS' deserve full sympathy and deserve all
respect as human beings. Medical Council Act if he risks of spreading it to his
Since acts likely to spread communicable diseases are an
offense, the hospital's failure to inform the spouse of the disease would make
them participant offender9. Undertrial had been denied antiviral therapy (ART)
against AIDS the Delhi High Court directs the Government to provide therapy 10. A
duty is imposed on the HIV/AIDS patient to prevent transmission of HIV virus by
The HIV/AIDS patients have been provided with universal and free
access to comprehensive treatment for AIDS and its prevention, care and support.
The Bill specifically affords safety of chance reduction strategies from civil
and criminal liability and law enforcement harassment.
Negligently, donating the blood of an HIV patient to a pregnant woman who was
later found to be infected with HIV+. In this case, the Indian Navy erroneously
awarded the victim, a government job at Kolkata or the place where she desired,
accommodation on her appointment on normal terms and conditions, a compensation
of Rs. 10 lakhs from the date of filing of the writ petition @ 18% interest and
medical treatment at the cost of the Government 11.
NACO National Aids Control
Organization under the Ministry of Family and Welfare deals with the prevention
and control act and its establishments and ombudsman11. Legal provisions on
international conventions The Universal Declaration of Human Rights additionally
states that the precept of non-discrimination is critical to human rights law.
This equally applies to people suffering from HIV/AIDS, as they face a very high
stage of stigma and discrimination. People diagnosed with HIV are additionally
entitled to the rights enshrined in Art.25(1) of the Declaration of the UN AIDS
Guidelines, 1996 emphasizes the responsibility of the states to engage in law
reform. It also courses the states to pick out legal limitations to improve an
effective strategy of HIV/AIDS prevention and care. It would lay emphasize on
training and conciliation and furnish for fast and positive administrative and
Constitutional Challenge to ban on the provision of
antiretroviral drugs to HIV positive pregnant women, ensuing in tens of heaps of
unnecessary infections and deaths; Alleged violation of the proper to health
care services in s.27(1) and s. 28(1)(c) of the South African Constitution.
Progressive understanding. Whether there is an unrestricted proper to minimal
core medical services; whether granting injunction alleviation and supervisory
jurisdiction violation of the separation of powers.12 the antiretroviral drug
Nevi rapine presented the practicable of preventing the contamination of 30 -
40,000 youngsters per year. The drug was presented to the Government for free
for 5 years, however the South African Government announced it would introduce
Nevertheless, many jurisdictions do not provide adequate legal support or
funding for population-wide treatment programms due to political or resource
-based constraints. In addition, patent laws and agreements supporting
intellectual property interests may limit access to the most advanced
medications in many countries14.
The Treatment Action Campaign (TAC) launched a
constitutional challenge, alleging a violation of the excellent to get admission
to health care choices Judge Chris Botha of the High Court dominated in favor of
TAC, ordering that Nevirapine be made reachable to contaminated moms giving
birth in state institutions.
Leena Menghaney reflects on a documentary film that
has recently been released in India the director Dylan Mohan Gray's hard hitting
documentary Fire in the Blood focuses on the AIDS epidemic, especially in
It systematically exposes how patents enabled Western pharma
corporations to increase their profits while millions of people in the
developing world lost their lives. It also chronicles the struggle by a few
people, primarily, Zackie Achmat, a South African activist, and Peter Mugyenyi,
a doctor in Uganda, as they campaigned for access to cheaper, generic drugs.
Many USA states repealed their sodomy laws in 2003. Supreme Court decision,
criminal penalties against sodomy15.The crook hints at criminalizing the
transmission of the Human Immunodeficiency Virus (HIV) which reasons the
acquired immunodeficiency syndrome (AIDS) offered proper right here into place
after the AIDS epidemic which passed off in the 1980s. In the United States,
most of the states have crook hints involving the publicity and transmission of
The necessary thought in once more of the criminalization of HIV stays to
supply up its spread. The current day emergence of pre-exposure prophylaxis has
diminished the chance of an everyday man or lady being affected with the
resource of way of the utilization of the virus and furnished a huge range of
measures for HIV affected communities to manipulate the unfold of the same. It
is indispensable to apprehend that the mere truth that a person is HIV top notch
is no foundation to make him a crook or the cited act an offense. Most of these
criminal laws are poorly drafted, vaguely worded, and archaic. Thus, they leave
extremely good room for misinterpretation and misuse.
By bringing up this does
now no longer help HIV-positive guys and girl who intentionally commit offenses,
typically speak to me these touching on to sexual assault, then once extra
factors out that any HIV-positive man or girl choose to know no longer be
overtly punished in reality due to the reality of their clinical status. India
now no longer has any unique prison recommendations in place to criminalize any
HIV extremely right character for reckless or intentional transmission of the
However, Sections 269 and 270 of the Indian Penal Code are many
situations the groundwork of such prosecution and punishment of humans,
inflicting to unfold of the virus amongst the non-infected people. Section 269
states that unlawfully or negligently mission an act per hazard unfold an
illness unstable to existence is punishable with the advisable useful resource
of six months imprisonment and/or a fine.
Similarly, Section 270 will extend the
penalty to up to two years and/or a pinnacle notch when the act is a 'malignant
act'. There used to be as soon as one case related to the transfusion of
HIV-infected blood to four victims at one hospital, and the transfusion of
HIV-infected blood to a pregnant girl at some fantastic hospital.
these stipulations of HIV transmission which surpassed off as a stop quit cease
result of a mistake and did now no longer have the criminal intention. Such
instances are dealt with in any different case as in distinction to instances in
the region there exists a clear intention.
In some unique incident, four human beings have been charged with vicinity 328
of the IPC which covers trying to harm through poisoning, stupefying,
intoxicating, or the utilization of unwholesome capsules the place traffickers
of a female had been determined to have HIV.
In April 2020, an HIV-positive man used to be as soon as arrested after biting
the finger of a police officer, making a try to strain him to return to domestic
at some factor of COVID-19 lockdown. These are the instances that ought to be
delivered beneath the purview of the regulations on account that these are
carried out with crook's intent. These are those cases of HIV transmission by
mistake not with a criminal intention. Criminalization of HIV transmission14
behind this idea remains to prevent its spread.
In the leading case Before trial
accused was convicted under sec 376,313,307 IPC. The trial court observed that
stepfather was aware that his acts could result in transmitting HIV. The Trial
court observed the stepfather was guilty of an offense punishable under 307 IPC
but later Delhi high observed that the appellant's had not raped the prosecutrix
with intending to cause death. Thus, the court held that the appellant's
conviction under 307 IPC couldn't be sustained and was accordingly set aside.16
Infection with HIV/AIDs is a disability, not a crime. Only those autonomous
persons who's intentional or recklessness actions can be demonstrated to
knowingly place others at risk of infection should be subject to potential
criminal sanctions. India does no longer have any different criminal pointers in
the vicinity to criminalize any HIV man or female for reckless or intentional
transmission of the disease. Other international locations criminalize people
with HIV for transmission, publicity, and non-disclosure of HIV status. HIV
criminalization prosecutions include the severe punishment of unintentional, or
'reckless' HIV publicity or transmission.
In the Netherlands, entirely
intentional HIV publicity or transmission is criminalized, making it one of the
most modern world areas in the world when it comes to HIV criminalization. The
Whole of seventy-five international areas with crook prison tips that in unique
thing out HIV. HIV-specific jail hints are centered in three components of the
world: the United States, eastern Europe/Central Asia and sub-Saharan Africa. In
Russia, Ukraine and Belarus, any movement that may also moreover in addition,
put any other man or woman at the hazard of sickness is punishable.
By imparting so many commonplace rights to them there ought to moreover be an
accountability for them no longer to unfold intentionally disease, exhibit mercy
on their groundwork of scientific reputation their crime can't be acquitted.
- Solicitor Gopal Subramaniam in supreme court 2011.
- NACO calculation and counting.
- WHO Fact sheet.
- William Pet Dec 2018.
- Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC).
- Criminalized of homosexuality.
- Violation of act shall attract imprisonment and fine up to 1 lakh u/s 37 of
prevention and control act ,2017.
- G v. New India Assurance Co. Ltd AIR 18 April 1999.
- Mr. 'X' vs Hospital 'Z' on 21 September 1998. CASE NO.: Appeal (civil) 4641
- LX v. Union of India, LX on 30 April 2019
- P v. Union of India (2001) Kolkata High Court
- Satvik Mishra.
- Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC).
- TRIPS agreement and EC Laws.
- Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC
- TRIPS agreement and EC Laws
- Lawrence vs. Texas.
- Sabhajeet maurya vs State NCT of Delhi
Award Winning Article Is Written By:
- Adv.Shivani Bhasin and
- Dr.Divya Khurana
Authentication No: OT228094700137-7-1022