Q: What is full form of AIDS?
Me: AIDS means Acquired Immuno Deficiency Syndrome.
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That was my answer in my schooldays. I almost scored 10 upon 10 in my General knowledge by answering correctly this single question (along with 9 othersJ). But never wondered what does that mean. Since that was a topic which was meant to be not discussed.
Though everyone talks a lot about “Aids” in Debates, Elocutions and Essay Writings not every one Walks the Talk.
A couple of months back I remember, I was having coffee with one of my colleague and I said her that I got a new ringtone and played it. She started blushing and asked me to stop that as I cant play that ringtone in public. All this because I played the ringtone of “Condom Condom”, the one being aired on television which has been issued by Government of India.
This is the same with most of us I guess. We are brave enough to talk about Condom, Sex, AIDS only in debates and speeches but when you have to face it , there is an Unwritten rule, Unspoken commandment that we are not supposed to talk about them.
But with the advent of media, new ways of packaging the message to attract the Youth has been a in-process-Success . The various initiatives like Social Forums, NGO’s increasing their reach to the audience with the message that AIDS is not a topic to be left un-discussed, the winds have started to blow in the right direction.
All it requires is fanning these flames which I guess we all could do to be a part of.
Coming December 1st – International Aids Day, we from Satyam are planning to launch some initiatives in this regards to spread awareness ( in true spirit -not the regular buy a red ribbon one)to fan the flames in the right direction.
We want to contribute our drop into the ocean and so are open for any of you who may want to join us and fan the flames.
The Project name is Chetana . As of now the plans are being chalked out and we would be happy if YOU also want to be a part of Chetana.
People Living with HIV/AIDS and Their Rights
ReplyDeleteP.D. Mathew S.J.
Indian Social Institute, Delhi
HIV/AIDS is the most dangerous pandemic the world faces today. There is no certainty about its origin, however it is believed that its virus first surfaced in Africa. Later, somehow it moved to the United States, where it was first detected decades later. After its first detection, the disease has remained in existence for more than twenty years now, without a foolproof medical response in terms of vaccination against it or its cure. The disease, in the absence of effective and easily available/accessible treatment affects not only the individual sufferer but also society at large. The number of patients suffering from this disease is quite daunting. The total number of HIV-positive people in the world rose from 10 million in 1990 to 28 million in 1996, 34 million in 2000, and to as many as 40 million in 2002.
There are several dimensions of the disease including moral and legal. The legal dimension of this Disease is about at least three basic questions. First, what are the rights of the patient suffering from HIV/AIDS? Secondly, what are the rights of people in general to protect and prevent themselves from being affected by the disease? Thirdly, what are the duties of various stakeholders, patients, public and the State?
The present article discusses some important rights of patients suffering from HIV/AIDS. These are the Right to Privacy, the Right to Marry and the Right to Employment. In order to trace these rights, the provisions of various relevant international instruments, the provisions of the Indian Constitution and some judicial pronouncements are considered in the article. There are several instances of cruel and inhuman treatment meted out by society to the HIV/AIDS patients on grounds of morality etc. The Law, however, has no such provisions permitting discriminatory, inhuman, degrading or cruel behaviour against them. Though suffering from this dangerous disease, the patients have certain rights provided for by different instruments at the international as well as domestic level. There has also been an attempt to clear some ambiguity pertaining to these rights through judicial pronouncements.
i. Right to Privacy
Some of the fundamental provisions entailing the right to privacy are as under:
The Universal Declaration of Human Rights (UDHR) Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The International Covenant on Civil and Political Rights (ICCPR) Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation.
1. Everyone has the right to the protection of the law against such interference or attacks.
Similarly, the Constitution of India provides for the Right to Life under Article 21, which means the right to a decent and dignified life including the right to privacy. As is the case, rights are always subject to certain conditions. The exercise of various rights within the purview of the
Right to Life under Article 21 of the Constitution is also subject to certain conditions like public health, safety, public order, public interest etc.
A difficult situation arises when a patient asserts his/her right to privacy or confidentiality and it comes in conflict with the question of public health, order, safety etc. In the event of such a conflict the Roman Law principle, ‘Salus populi est suprema’ (Regard for the public welfare is the highest law) should apply. In Mohan Patnaik v. Government of A.P., 1 Andh LT 504, it was held that in case of conflict between individual fundamental rights and larger interest of the society, the latter right would prevail. The Supreme Court of India, in Mr. ‘X’ v. Hospital ‘Y’, AIR 1999 SC 495, held that Article 21 includes right to privacy, but the same is not absolute. The Court further said that disclosure by doctor that patient who was to get married has tested HIV+ve, is not violative of patient’s right to privacy.
The position of the right to privacy, therefore, is as follows:
1. Everyone, including the HIV/AIDS patient, has the right to privacy.
2. Such a right may be curtailed in the larger public interest.
ii. Right to Marry
The Right to Marry is another fundamental right which every human being has. The Universal Declaration of Human Rights providing for this right states in Article 16 (1): Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.
Also, this right finds a place in the International Covenant on Civil and Political Rights. Article 23 (2) of the Covenant provides: The right of men and women of marriageable age to marry and to found a family shall be recognized.
The Right to Marry is inherent in the Right to Life as provided for in the Article 21 of the Constitution of India. However, the Supreme Court made it clear that it is not an absolute right.
Person suffering from venereal disease has a suspended right to marry till he is cured of the disease. The Court held:
The emphasis, therefore, in practically all systems of marriage is on a healthy body with moral ethics. Once the law provides the “venereal disease” as a ground for divorce to either husband or wife, such a person who was suffering from that disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of the disease. If the disease, with which he was suffering, would constitute a valid ground for divorce, was conceaded by him and he entered into marital ties with a woman who did not know that the person with whom she was being married was suffering from a virulent venereal disease, that person must be injuncted from entering into marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman. (Mr. ‘X’ v. Hospital ‘Z’, AIR 1999 SC 495).
In the same case, dwelling on the right of a person to lead a healthy life, and therefore to be informed of the health condition of his/her prospective spouse, the Court further held: As a human being, Ms. Y must also enjoy, as she, obviously, is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was a victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV(+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy.
Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely the appellant’s right to privacy as part of right to life and Ms. ‘Y’s’ right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute spectators of clay in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.”
Further, the Court, considering Sections 269 and 270 of the Indian Penal Code, held that these statutory provisions impose a duty upon the appellant not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, to the woman whom he marries. The said Sections provide:
“269. Negligent act likely to spread infection of disease dangerous to life – Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
270. Malignant act likely to spread infection of disease dangerous to life – Whoever malignantly does any act which is, and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
iii. The Right to Employment
The Right to Employment is also a very important human right. Some provisions pertaining to this right which form a part of the International Bill of Human Rights are: Article 23 (1) of the Universal Declaration of Human Rights: Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights: The States
Parties to the present Covenant recognizes the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The Constitution of India, in its chapter on the Directive Principles of State Policy, directs the
State to make effective provision for securing the right to work. The chapter on Fundamental
Rights provides for non-discrimination with regard to opportunity in public employment. The
Constitutional provisions to this effect are:
Article 16 (1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
Article 16 (2): No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State.”
The Bombay High Court, in MX of Bombay Indian Inhabitant v. M/s. Z.Y, AIR 1997 Bombay
406, addressing a question as to whether it is permissible for the State under our Constitution to condemn a person infected with HIV to virtual economic death by denying him employment, held:
“… The rule providing that person must be medically fit before he is employed or to be continued while in employment is, obviously, with the object of ensuring that the person is capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the work place. The persons who are rendered incapable, due to the ailment, to perform their normal job functions or who pose a risk to the other persons at the work place, say like due to having infected with some contagious disease which can be transmitted through the normal activities at the work place, can be reasonably and justifiably denied employment or discontinued from the employment in as much as such classification has an intelligible differentia which has clear nexus with the object to be achieved, viz., to ensure the capacity of such persons to perform normal job functions as also to safeguard the interests of other persons at the workplace. But the person who, though has some ailment, does not cease to be capable of performing the normal job functions and who does not pose any threat to the interests of other persons at the work place during his normal activities cannot be included in the aforesaid class.
Such inclusion in the said class merely on the ground of having an ailment is, obviously, arbitrary and unreasonable. … the impugned rule which denies employment to the HIV infected person merely on the ground of his HIV status irrespective of his ability to perform the job requirements and irrespective of the fact that he does not pose any threat to others at the work place is clearly arbitrary and unreasonable and infringes the wholesome requirement of Article 14 as well as Article 21 of the Constitution of India.”
The Supreme Court of India, in Mr. ‘X’ v. Hospital ‘Y’ AIR 1999 SC 495, held:
The patients suffering from the dreadful disease “AIDS” deserve full sympathy. They are entitled to all respects as human beings. Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions.
Subject to certain reasonable restrictions, which are expedient in the larger public interest, the
HIV/AIDS patient has all the rights. These include the right to life, the right to health, the right to education, the right to freedom of expression, the right to movement, the right to equality etc.
Merely on the ground that a particular person is suffering from HIV/AIDS, he/she cannot be denied any of the rights available to human beings.