By Diksha Sanyal*
On April 11, 2017, the Indian Parliament passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Bill, 2017 (hereinafter referred to as ‘Act’). This Act was viewed as an opportunity to make access to affordable HIV healthcare a right. However, the Act in its current form does not substantively provide for it. On the one hand, the government has assured in Parliament that treatment would be provided free of cost. Yet, the national budget for fighting HIV/AIDS has been steadily declining over the last couple of years and could have been remedied by this Act. Instead, it is non-committal to the right to health and neglects the availability of treatment while disproportionately focussing on prevention. In this blog post, I briefly outline the Act’s conceptualisation of the right to health vis-à-vis the international framework.
The right to the highest attainable standard of health is a human right recognized in Article 12 of the ICESCR. The normative contents of this right are found in General Comment No. 14 to the ICESCR. Under international law, the nature of State intervention is measured against the benchmarks of ‘availability,’ ‘accessibility,’ ‘acceptability,’ and ‘quality’. Because of differing levels of resource constraints, the General Comment recognizes the principle of progressive realization and a minimum core obligation which the State must fulfil at all times regardless of resource constraints.
In the context of a global epidemic such as HIV, the State has an obligation under Article 44 (c) of the General Comment No. 14 to “take measures to prevent, treat and control epidemic and endemic diseases)”. There is also a non-derogable obligation to “provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs” under Article 43 of the same document. As per the WHO Model List of Essential Medicines, certain antiretroviral medications are classified as essential. These include medicines required for the treatment and prevention of HIV, specifically those for prevention of mother-to-child transmission and post-exposure prophylaxis. Despite not doing so, the Act should have made access to these essential services and medicines, a right.
Keeping the framework in the backdrop, I evaluate the 2017 Act which has come into force at a time when the HIV/AIDS control programmes in India are facing a severe budget cut. This has severely affected the availability of diagnostic kits and paediatric formulations of anti-retroviral drugs.
The law, following nearly three decades of campaigning, fails to bring a longevity and sustainability to the basic demands of the campaign. In terms of availability and accessibility, the Act fails to improve or strengthen the existing mechanism. In a complete mockery of the sustained campaign, Section 14 deals with the provision of Antiretroviral Therapy (ART) and Opportunistic Infection. It only obliges the government to take measures to provide these services “as far as possible.” It does not make this available to people as a matter of right. Section 46(2)(e) provides that the State may lay down guidelines for providing such treatment, thus leaving the entitlement completely in the hands of executive authorities.
Although free antiretroviral treatment, or ART, has been provided in India since 2004, the uptake remains low. Further, these clinics are neither easily accessible nor economically, physically or informationally available. National Aids Control Programme IV in fact aims to make second-line ART treatment free. However, given the steady decline of international funding in India for HIV since 2012 and domestic funding falling by 22% between 2014-2015 and 2015-2016 will severely compromise any plans to make treatment facilities more accessible. Currently, most efforts are directed at the prevention level with 68% of the NACP budget being allocated to HIV prevention. On the other hand, only 31% goes to treatment, care and support. With overall funding decreasing, this amount is going to fall in real terms.
The new law does not move beyond the prevention model to make access to safe treatment accessible. A study showed that physical and economic accessibility to treatment services remains low. The number of clinics set up so far has been way below the expected target.
Interestingly, in 1999, a public interest petition was filed before the Supreme Court of India seeking to address the barriers faced by HIV/AIDS patients in accessing treatment. Among other issues, access to second line ARV treatment also arose before the court. National Aids Control Organization argued in favour of its guidelines which provided that treatment would be made available free of cost to only to certain groups such as widows, children, persons below the poverty line and those who had been accessing this treatment under a government programme for at least two previous years. The lawyers of the petitioner argued on the other hand that these guidelines violated the right to equality under Article 14 and the right to life under Article 21. The court in W.P(C) No. 512 of 1999 on 1/10/2010 upheld the petitioners’ argument and indicated that such a scheme was against the constitutional order, thereby making the roadway for a universal access to HIV healthcare.
Instead of enshrining the principle of universal accessibility upheld by the Court, the Act relies on the language of ‘as far as possible,’ which leaves essential healthcare entitlements vulnerable to the whims and fancies of the executive.
Making access to HIV healthcare a right would have put pressure on the State to provide the necessary infrastructure for the realization of this right by providing a channel of accountability. Creating a statutory right to HIV healthcare facilities would have been easier to enforce given that much of the infrastructure to make such a right meaningfully accessible already exists, although requiring reforms. Moreover, it would have ensured better accountability and last mile delivery of services.
This would have ensured a true rights-based legislation. Rather, the current law will not force the State to invest in HIV treatment, only prevention. The current Act is a half- hearted attempt to engage meaningfully with the right to health for persons living with HIV/AIDS.
The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017
What is the HIV/AIDS Bill: All Your Questions Answered, Indian Express, 13/04/2017, available at http://indianexpress.com/article/what-is/hiv-aids-bill-passed-parliament-lok-sabha-nadda-discrimination-4611167/ [Accessed 7 Jul. 2017].
Aditya Kalra and Zeba Siddiqui, Funding Crisis Puts India’s AIDS Programme and Lives at Risk’, Reuters, 24/07/2015, available at http://in.reuters.com/article/aids-india-funding-idINKCN0PY1JU20150724 [Accessed 7 Jul. 2017].
Office of the High Commissioner of Human Rights, CESCR General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12), 22nd Session of the Committee on Economic, Social and Cultural Rights, (11/08/2000), E/C.12/2000/4, available at <http://www.ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf> [Accessed 7 Jul. 2017].
World Health Organization, “WHO Model List of Essential Medicines” (04/2015), available at < http://www.who.int/medicines/publications/essentialmedicines/en/> [Accessed 7 Jul. 2017].
See, Vina Vaswani and Ravi Vaswani, Perceptions of People Living With HIV/AIDS Regarding Access to Healthcare, 33, Journal of Medicine and Law, 64, 69-70, (2014)
HIV and AIDS in India, AVERT: Averting HIV and AIDS https://www.avert.org/professionals/hiv-around-world/asia-pacific/india [Accessed 31 May 2017].
Sankalp Rehabilitation Trust v. Union of India, P © 512/1999
*Diksha Sanyal graduated with a BA (LLB) Hons from the West Bengal National University of Juridical Sciences, Kolkata, India in 2016. She was employed as a litigator and researcher with the Centre for Law and Policy Research, Bangalore till April 2017 where she was involved in constitutional litigation and lawyering in the public interest on issues pertaining to disability rights, the right to education and health, among others.