National AIDS Control Organisation provides leadership to HIV/AIDS Control Programme in India, implementing one National Plan within one monitoring system. State AIDS Prevention and Control Societies (SACS) implement NACO programme at state level, but have functional independence to upscale and innovate.
SACS are autonomous and decentralised. Each State AIDS Prevention and Control Society has a governing body, its highest policy making structure, headed either by the minister in charge of Health or the Chief Secretary. It has on board representatives from key Government Departments, the Civil Society, Trade and Industry, Private Health Sector and PLHA Networks, who meet twice a year. It approves new policy initiatives, annual plan and budget, appoints statutory auditors and accepts the annual Audit Report. For better financial and operational efficiency, administrative and financial powers are vested in the Executive Committee and the Programme Director.
Functions of SACS are:
- Medical and Public Health Services;
- Communication and Social Sector Services; and
- Administration, Planning, Coordination, Monitoring and Evaluation, Finance and Procurement.
With the setting up of District AIDS Prevention and Control Unit under NACP-III, there will be increased emphasis on improving coordination functions at state level in supporting the programme implementation at the district level.
Rights of protected people mentioned under the Act.
RIGHT TO TREATMENT: A person suffering from any ailment has the right to get treatment for his suffering. Treatment cannot be denied to a patient on the basis of his HIV/AIDS status. If any HIV/AIDS patient is denied treatment, it amounts to discrimination. The Supreme Court of India has issued directions to make second-line HIV/AIDS treatment available free of cost to all those who need it.
In the matter of LX v. Union of India, LX, an under trial who was tested HIV+ was denied antiviral therapy (ART) against AIDS after his release form the prison. In a petition filed by him, the Delhi High Court directed the Government to continue to provide ART to LX. Pursuant to the commencement of the ARV roll out by the Government of India in April 2004, the High Court directed the Government provide ART to LX under the ARV roll-out programme and to reimburse AIIMS for the costs incurred by them.
In another matter a pregnant lady infected with HIV+ was denied treatment by the hospital. In a petition filed by her husband, the Delhi High Court gave immediate directions to the Hospital saying that there was an urgent need to issue direction to ensure the protection of the Right to Health and Life of the women and her foetus. A direction was issued to immediately arrange one unit of Blood and further quantity of Blood as may be required, from any of the authorized Blood Banks.
CONFIDENTIALITY: A person who has been diagnosed with HIV/AIDS has the right to keep his/her HIV/AIDS status confidential. Even the Courts have delivered judgments in their favour that if they do not want to disclose their identity they can use a pseudonym before the Courts to suppress their identity.
In the matter of Mr. X v. Hospital Z, the Supreme Court of India has held that the patients suffering from 'AIDS' deserve full sympathy and are entitled to all respect as human beings. They cannot be denied jobs on the basis of their HIV/AIDS status. It further held that although the doctor patient confidentiality is an important and part of the medical ethics incorporated by the then Medical Council Act, a patient's right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse. Since acts likely to spread communicable diseases are a crime, the failure of the hospital to inform the spouse of the disease would make them participant criminals. Since Indian matrimonial laws provide venereal disease as a ground for divorce, a person suffering from a VD had no right to get married till s/he/ is fully cured and such a right must be treated as a 'suspended right'.
In another case of Mr. X v Hospital Z, the Supreme Court has held that its earlier judgment in Mr. X v Hospital Z to the extent that it suspended the right of people living with HIV/AIDS to marry is no longer good law and restored the right of an HIV + person to marry. However, it further held that this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage.
RIGHT TO EMPLOYMENT AND RIGHT AGAINT DISCRIMINATION AT WORKPLACE: Right against discrimination is a fundamental right possessed by a citizen of India. No one can be discriminated on the basis of his HIV/AIDS status in India. HIV/AIDS patients have a right of equal treatment everywhere and they cannot denied job opportunity or discriminated in employment matters on the ground of their HIV/IDS status.
In a landmark judgment in the matter of MX v. ZY, the Bombay High Court has held that no person could be deprived of his or her livelihood except by procedure established by law and that the procedure must be just, fair and reasonable. It further held that held that if a person is fit to perform his job functions and is otherwise qualified and does not pose a substantial risk to fellow workers he cannot be denied the job. Further, the Court held that a public sector employer cannot deny a person employment solely because he is HIV positive. Each determination of whether a person is incapable of performing the job must be made by conducting an individual inquiry taking into account the state of Medical knowledge at the time. It was also held that in proper cases where a person can show that he or she would not be able to prosecute his or her career if his status is disclosed and in the interests of the administration of justice, the Court will permit the party before it to suppress his or her identity and prosecute or defend the proceedings under an assumed name.
In another case of G v. New India Assurance Co. Ltd, the Bombay High Court has held that a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive. The Court further held that a personal HIV status cannot be a ground for rejection for employment as it would be discriminatory and would violate of the principles laid down in Articles 14 (Right to Equality), 16 (Right to non-discrimination in state Employment) and 21 (Right to Life) of the Constitution.
In the case of S v. Director General of Police, where the widow was denied compassionate employment because her husband had died because of AIDS, the Bombay High Court has held that there should be no delay in appointment in all claims of compassionate employment. If there does not exist a suitable post, a supernumerary post must be created. The Court directed the respondents to create a supernumerary post for the petitioner within 8 weeks, and consider her case for grant of service quarters on priority basis in accordance with the rules.
In the matter of Mr. X, Indian Inhabitant Vs. Chairman, State Level Police Recruitment Board and Ors., the Andhra Pradesh High Court has held that treating all HIV positive persons as one single homogenous class, irrespective of the stage of the disease, for being denied appointment in the police force is in violation of Articles 14 and 16 of the Constitution of India. Some people found to be HIV positive may, under certain circumstances, be unsuitable for employment in the police force does not justify the exclusion from employment of all people who are living with HIV. A 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 workplace is clearly arbitrary and unreasonable and infringes the whole some requirement of Article 14 as well as Article 21 of the Constitution of India.
The Supreme Court of India has also advocated in the favour of better living for sex workers. It has also directed that the Central and the State Governments should prepare schemes for rehabilitation of physically and sexually abused women all across the Country.
Model HIV and AIDS Policy for Establishments
The appropriate Authority under the Central Government shall, before notifying a model HIV and AIDS policy for establishments Consult –
(a) All stakeholders including representatives of HIV -Positive Persons;
(b) HIV -affected Persons and protected Persons;
(c) Healthcare providers;
(d) Establishments engaged in providing Education, Healthcare Services, Experts and Organizations working in the field of HIV and AIDS, Employers, Trade Unions, and other relevant Stakeholders on such policy.
- The appropriate authority under the Central Government shall notify a model HIV and AIDS policy for establishments in the Official Gazette.
- The appropriate authority under the Central Government shall review and update from time to time the model HIV and AIDS policy for establishments in accordance with above mentioned rules.
- The model HIV and AIDS policy applicable to an establishment, engaged in the provision of healthcare services and every other establishment where there is a significant risk of occupational exposure to HIV shall provide for a safe working environment and for informed consent for testing, treatment and research in accordance with the provisions of the Act.
- The model HIV and AIDS Policy applicable to an establishment consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be, shall provide for a grievance redressal mechanism in accordance with the provisions of the Act and these rules: Provided that in the case of healthcare establishments, the provisions of this sub-rule shall have the effect as if for the words “one hundred or more”, the words “twenty or more” had been substituted.
- The model HIV and AIDS policy as may be applicable and as may be amended and updated from time to time by the appropriate authority under the Central Government shall be adopted by every establishment upon its notification.
- The text of the HIV and AIDS policy shall be communicated to all persons working in the establishment by the person in charge of or responsible to the establishment.
- The person in charge or responsible for the establishment shall prominently post the text of the HIV and AIDS policy as a notice in English and in the language understood by majority of persons working in or accessing such establishment on special boards to be maintained for such purpose, at or near the entrance through which the majority of the persons working in or accessing the services of the establishment enter such establishment.
- The establishment shall conduct annual training sessions for persons working in such establishment in understanding and implementing the HIV and AIDS policy.
- The notice referred to in sub- rule (3) of rule 7 shall state the manner in which copies of the HIV and AIDS policy shall be obtained and persons working in or accessing the services of the establishment shall be entitled to a copy of such policy free of charge.
- The copies of the HIV and AIDS policy of establishments shall be made available in the public domain by those to whom the policy has been made available including on their website if any and in case of hard copies for a nominal price.
- The appropriate authority of every State shall make available the copy of HIV and AIDS policy to heads of all educational establishments who shall further provide a copy of the policy to the learners and their parents or guardians free of charge immediately upon admission of the learner to the establishment.
Role of Ombudsman
Manner of Inquiring izito complaints by Ombudsman-The Ombudsman may inquire into the complaint under the Act in the following manner:-
a) the Ombudsman shall act in an objective and independent manner when inquiring into complaints made under the act;
b) while inquiring into complaints under the Act, the Ombudsman shall not be bound by any rules of evidence and may follow such procedure as he considers just and proper;
c) no cross examination shall be permitted in inquiries before the Ombudsman;
d) the Ombudsman may, in the interests of justice, take the assistance of experts, including protected persons and persons vulnerable to HIV, and persons working in the fields of HIV and AIDS, public health or health delivery systems;
e) The Ombudsman shall have the power to pass interim orders in cases of medical emergency without hearing the parties;
f) The Ombudsman shall have the power to pass orders, including withdrawal and rectiflcation of the violation, counseling, social service etc;
g) The Ombudsman shall inform the complaint of the action taken; and
h) The Ombudsman shall inform the parties to the complaint of their right to seek judicial review from the Ombudsman's order;
Manner of maintaining records by Ombudsman
(1) The Ombudsman shall-
a) Immediately on receipt of a complaint, record it by assigning a sequential unique complaint number in a register maintained solely for that purpose I physical or computerized form;
b) on receipt of the complaint, acknowledge it including by sending the unique complaint number by SMS or e-mail or otherwise to the complainant where available;
c) record the time of the complaint and the action taken on the complaint in the register; and
d) maintain the register of complaints in a manner that ensures confidentiality of data.
(2) The Ombudsman shall comply with data protection measures in accordance with section 11 of the Act.
Manner of making complaints to Ombudsman-
(1) Any person may make a complaint to the Ombudsman within whose jurisdiction the alleged violation took place, within three months from the date that the person making the complaint became aware of the alleged violation of the Act;
Provided that the Ombudsman may, for reasons to be recorded in writing, extend the time limit to make the complaint by a further period of three months, if he is satisfied that circumstances prevented the complaint from making the complaint with the stipulated period;
(2) All complaints shall be made to the Ombudsman I writing in accordance with the form set out in the Appendix to these rules:
Provided that where a complaint cannot be made in writing, the Ombudsman shall render al reasonable assistance to the complainant to reduce the complaint in writing.
(3) In cases of medical emergency, the Ombudsman or his assistant may visit the complainant at the location of the alleged violation or any other convenient place to enable written documentation of the complaint.
(4) The Ombudsman may receive complaints made in person, via post, telephonically, or through electronic the Health and Family Welfare website.
State Government to disseminate information on Ombudsman-
(1) Within thirty days of appointment of the Ombudsman the appropriate authority under the State Government shall disseminate information about the office of the Ombudsman, including the Ombudsman's jurisdiction, role, functioning and procedures, and the manner in which complaints can be made to the Ombudsman.
(2) Such dissemination shall be undertaken to advance the understanding, in particular, of protected persons, healthcare workers, legal aid service authorities and civil authorities.
Manner of recording pseudonym and providing suppression of identity in legal proceedings.-
(1) In any legal proceeding where a court, pursuant to clause (a) of sub-section (1) of section 34 of the Act, directs on an application made by a protected person or any other person, that ln the interests of justice the proceeding or any part thereof be conducted by suppressing the identity of such protected person, the Registrar of the court shall direct all parties involved to:-
(i) file one copy of the documents bearing the full name, identity and identifying details of the parties concerned before the court, which shall be kept in a sealed cover and in safe custody with the Registrar; and
(ii) Serve one copy of documents bearing the full name, identity and identifying details of the parties concerned upon other parties in the proceeding with a requirement to ensure that full name and identity of the parties concerned are kept confidential.
(2) The Registrar shall provide pseudonyms to protected persons involved in the legal proceedings in the documents, filed before the court in such manner that the identity and identifying details of the protected person involved in the legal proceeding are kept confidential.
(3) The Registrar shall place the sealed covered documents before the court on the first date the legal proceeding is listed for hearing before the court, if so required by the court.
(4) The identities of the protected person involved in the legal proceeding and their identifying details shall be displayed in pseudonym in all documentation generated by the court in relation to the legal proceeding, including listing of the case on the Court Board, interim orders and final judgments.
(5) The identity and identifying details of the protected person involved in the legal proceeding shall not be revealed by any person or their representatives including assistants and staff except where, in the interest of justice, the name and identify of the protected person needs to be revealed to a third party, it shall only be allowed by an order of court.
(6) Printing or publishing any matter in relation to the aforementioned legal proceedings in electronic or any other form, shall be lawful only if the same is done by ensuring the suppression of identities of the parties in the legal proceeding.
(7) In any legal proceeding before it, under the act, the court shall comply with data protection measures in accordance with section 11 of the Act.
Therefore, all the designated ombudsman are here requested to discharge his/her duty with immediate effect.