Rights, Dignity & PLHAs, By the Eyes of Constitution

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Rights, Dignity & PLHAs By the Eyes of Constitution

Amit Shukla

The virus, HIV, is a complex and variable, a major impending factor for

impending recognition of infection and arousing stigma and discrimination

towards persons living with HIV & AIDS. The institutional responses to HIV &

AIDS at individual, familial and community level have tended to mirror personal

responses including stigma and discrimination and a varied level, degree and

composition of acceptance with infection and overcoming stigma and

discrimination.

By the Eyes of Constitution:-

Human Rights refer to the basic rights and freedom to which all human beings are

entitled, including life, liberty, freedom of thought and expression, equality

before law and material wellbeing. However, the universal declaration of human

rights and subsequent human rights treaties and documents describes what

Governments and societies should not do to people such a torture or under

inhuman conditions, and what Governments and societies should guarantee for all

people in the society. When and where human rights and dignity are respected,

there will still be social distinctions but all will be ensured of a basic

minimum standard in which their individual potential can be freely and fully

developed.

With the emergence of the HIV & AIDS epidemic, modern human rights discourse

provides a coherent conceptual framework for identifying and analyzing the

social root causes of vulnerability to HIV & AIDS, a common vocabulary for

describing the commonalities that underlie the specific situations and clarity

about the necessary direction of health promoting societal transformation.

The strategic link between HIV & AIDS and human rights has proceeded through two

distinct phases (UN, 1994) reflecting a deeping awareness of the complexity of

interactions between human rights and basic needs. The first phase focused on

the stigma and discrimination and marginalization of PLHAs(People living with

HIV & AIDS). Such stigma and discrimination, although unfortunately typical of

societal responses to epidemics, was identified as counter productive in the

setting of HIV & AIDS prevention. In this regard, a firm and committed to

preventing stigma and discrimination against PLHAs had been adopted and became

an integral part of the global strategy for epidemic control.

On the other hand, the second phase, the relationship between human rights and

HIV & AIDS started in the late 1980’s and has been further refined during the

intervening period.

According to UNESCO (2002), Human Rights consist of civil and political rights,

as well as economic, social and cultural rights.

They express recognition and respect for human dignity they are therefore

universal and belong equally to all human beings.

In the high of same cases related to fundamental rights given by Constitution of

India and Human Rights, PLHAs have the right in the following ways.

1.The rights to confidentiality while announcing HIV+ status.

2.HIV testing without consent is not permitted.

3.PLHAs have rights to admittance to hospital for quality treatment and surgery.

4. There is a provision of syringe exchange service for injecting drug users.

5. PLHAs have rights to employment and continuation of the services.

6. PLHAs have rights to information and education for improving quality of life.

7. PLHAs have right to marry.

More specifically, the most relevant human rights principles for protecting the

dignity of PLHAs, including non-discrimination.

These are:-

1.Right to information.

2.Right to access and availability of the services.

3.Right to freedom of movement.

4.Right to participation.

5.Right to liberty.

6.Right to development.

This means, availability and accessibility of, and access to functioning public

health care facilities, educational and employment opportunities, involvement of

PLHAs in to development activities and providing care and support for improving

quality of life.

Right to treatment without discrimination:-

The obligation of the State to ensure the creation and the sustaining of

conditions congenial to good health is cost by the constitutional directives

contained in Articles 38, 39 (e) (f), 42, 47 and 48 A in the part IV of the

Constitution of India.

The preamble and article 38 of the Constitution of India envision the duty of

the State to ensure that life in meaningful and livable with human dignity.

Article 25(1) of the Universal Declaration on Human Rights guarantees the right

to standard of living adequate for health and well being.

The Supreme Court of India in Mr. X vs Hospital Z, states that people living

with HIV & AIDS, “Deserve fully sympathy and are untitled to all respects as

human beings. Their society can not, and should not be avoided, which otherwise

would have bad psychological impact upon them. They have to have their avocation

and government jobs or services can not be denied to them.”

“Article 21 of the Constitution of India imposes an obligation on the State to

safe guard the right to life of every person. Preservation of human life is thus

of paramount importance. The Government hospitals run by the state and the

medical officers employed there in are duty bound to extend medical assistance

for preserving human life. Failure on the part of a government hospital to

provide timely medical treatment to a person in need of such treatment results

in violation of his right to life guaranteed under Article 21” said the Supreme

Court inb Paschal Banga Khet Mazdooor Samiti vs State of West Bengal.

Further, WHO guidelines hold that AIDS Patients or those who test positive for

HIV can not be refused treatment. The state should establish adequate

infrastructure to tackle the special needs of HIV positive persons/AIDS patients

without segregating them from mainstream society. Private hospitals should also

be encouraged to invest in adequate facilities to treat HIV positive/AIDS

patients.

Right to Employment:-

In the case of Chhotulal Shambhai Salve vs State of Gujrat, High Court said that

the respondents have no right to deleted the name of the petitioner from the

select list on the base that he is HIV positive. The action of the respondents

in deleting the name of petitioner from the select list is illegal and violative

of Article 14 and 16 of the Constitution.(Special Civil Application No. 11766 of

2000)

Article 14 of Constitution guarantees to every person the right to equality

before law or the equal protection of law.

Article 16 says that (i) There shall be equality o opportunity for all citizens

in matter relating to employment or appointment to any office under the state.

(ii) 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.

Article 16 is an instance of the application of the general rule of equality

before law laid down in Article 15 (1) with respect to the opportunity for

employment or appointment to any office under the State.

The sense of above:-

“In India, all people are entitled to basic or fundamental rights in the eyes of

the law. It does not matter what the religion, race, sex, or place of birth of

the person is neither do these rights change just because an individual is

infected or affected by HIV.”

Guideline (5) of International Guidelines on HIV & AIDS and Human Rights says

that, State should enact or strengthen anti-discrimination and other protective

laws that protect vulnerable groups, people living with HIV & AIDS and people

with disabilities from discrimination in both the public and private sector,

ensure privacy and confidentiality and ethics in research involving human

subjects, emphasize education and conciliation, and provide for speedy and

effective administrative and civil remedies.

Rights to continuation of the employment and service mean rights to equality:-

“On December 3, 1999 at Mumbai, an Industrial Court passed an order to reinstate

the complainant whose employment in a glass manufacturing factory had been

terminated due to his HIV+ status. He was terminated from his job on account of

his HIV+ status. The employer filed a reply stating that in the factory the

worker often get cuts and bruises as glass often breaks during the course of

work, and the complainant’s presence could pose a risk to the co-workers in

factory. The complainant filed an affidavit as to the specific nature of his job

functions. J.J. Hospital provided the complainant a certificate of medical

fitness with particular reference to the kind of job functions he performed. An

investigation officer also submitted a report to the Court favoring the re-

employment of the complainant. Court directed the employer to pay the

complainant full back wages. The order further stated that the employer should

provide the complainant with work and pay him his wages from month to month.”

(Source: Lawyers Collective, Positiv Dialogue, News Letter# 12, Dec. 2002)

The above cases reflect the judicial efforts towards helping to improve quality

life of PLHAs and strengthening HIV & AIDS prevention program. At the same time

Rights based approach to HIV & AIDS has received further support and PLHA’s

rights have been strengthened.

This in general reflects the rights to existence:-

This is the only effective way in dealing with HIV & AIDS taking away rights

only strengthens stigma and fear, protecting and providing them strengthens

understanding and empowerment.

Centre for New Social & Democratic Initiatives (CNSDI)

2/617,Viram Khand, Gomti Nagar

Lucknow-226016 (U.P.) INDIA

Ph. No. - +91 522 4011795

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