Sankalp

Sahara House v. Union of India [W.P, (C) No. 535 of 1998]

AND

Sankalp Rehabilitation Trust V. Union of India [W.P. (C) No. 512 of 1999]

Brief History and Update of the PILs filed in the Hon’ble Supreme Court for access to equitable treatment for PLHIV

In 1998, Sahara House, a centre for Residential Care and Rehabilitation filed a PIL in the Supreme Court. It sought directions against the State and its machineries that no person infected with HIV/AIDS can be denied treatment in state run hospitals and that denial of treatment to persons living with HIV (PLHIV) is unconstitutional and illegal. The petition also prayed for a direction to the State to formulate guidelines for the treatment of PLHIV.

In 1999, Sankalp Rehabilitation Trust, through Lawyers Collective, filed a petition in the Hon’ble Supreme Court of India under Articles 14, 21, 32, 41, 42 and 47 of the Constitution of India, as there were a large number of PLHIV who were denied medical treatment in public hospitals on the ground that the person is HIV-positive or is suspected to be HIV-positive. Closely associated with discrimination in the health care setting is the issue of Health Care Workers (HCWs) denying treatment to PLHIV for fear of occupational exposure to HIV during treatment. Therefore, the issue ensuring a safe working environment for HCWs was raised.

The petition, inter alia, prayed for the following:

1. Declare that the denial or refusal to treat a person on the ground that she/he is suspected to be or is infected with HIV/AIDS is violative of Articles 14 and 21 read with Articles 37, 41 and 47 of the Constitution of India.

2. For an appropriate writ, order or direction directing the Respondents to frame, adopt and follow a formal protocol and/or guidelines for the purposes of rendering non-discriminatory treatment to PLHIV and for the purpose of providing Post-exposure prophylaxis (PEP) and universal precautions to all its medical staff.

In 1999, the petitioner and Lawyers Collective in consultation with leading medical and non-medical experts formulated Patient Management Protocol. The objective of the protocol is to effectively implement the right of PLHIV to access health care services and simultaneously protect the rights of HCW. After the petition was filed, there were discussions with NACO over the protocol. On suggestions made by NACO, the protocols were altered, which were finally sanctioned by Ministry of Health and NACO in 2001. The Petition prayed for the protocol to be implemented

Since the filing of the petition, Respondent No. 2, the Medical Council of India, notified the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. however, certain provisions of the Regulation were violative of the right to self-autonomy and confidentiality of PLHIV The petitioner filed amendment application asking those provisions to be struck down which were violative of the rights of PLHIV under Articles 14 and 21 of the Constitution.

At the hearing on 23.11.2004, Sahara House sought leave of the Supreme Court to withdraw their petition. The Hon’ble Supreme Court observed that most of the issues raised in the petition of Sahara House have been covered by the petition filed by Sankalp Rehabilitation Trust. Therefore, instead of allowing the petition itself to be withdrawn, the Supreme Court permitted the counsel of Sahara House to withdraw from the petition and appointed Lawyers Collective as amicus curiae in Sahara House petition. Since then Lawyers Collective has been representing Sankalp Rehabilitation Trust as well as Sahara House.

Pursuant to filing the Petition, the Government of India started the ARV Rollout Programme with effect from 1 April 2004. In 2006, Lawyers Collective undertook a survey to assess the status of the ART Rollout centres across India. The survey revealed that while there were growing numbers of PLHIV receiving free ARV treatment, severe gaps and limitations exist within the framework and rollout of NACO’s national HIV treatment programme. These shortfalls create challenging barriers for lower income PLHIV across the country whose lives depend on free medicine and counseling.

Consequent to the findings of the ARV Rollout report, the petition was amended to address the shortcomings in the ARV Rollout Programme.

The Hon’ble Supreme Court asked the Petitioners in both the matters to submit the Directions that they seek from the Court. The Directions submitted by the Petitioners broadly sought to guarantee the right of PLHIV to universal access to health care.

Among other things, the Directions sought:

Anti-retroviral treatment (ART) for life time to PLHIV and Universal Access to all by 2010;
ART to be available and provided free of charge throughout the country;
All groups including marginalized communities to have an equitable access to ART;
Upscale all the infrastructural and personnel requirements;
Pediatric formulations to be included for children;
Revision of 1st line drugs to include drugs listed in the WHO revised guidelines;
ART Rollout programme to include second line and third line drugs;
Up-scale of the PPTCT programme;
Voluntary Counselling and Testing Operational Guidelines (VCTC) to be up-scaled in a non-discriminatory manner, counseling guidelines to be revised and revived;
Informed consent, confidentiality and non-discrimination protocols to be strengthened;
A safe working environment and Post-Exposure Prophylaxis (PEP) to all health care workers to be made available throughout the country;
Free Opportunistic Infection (OI) programme to be strengthened;
Co-trimoxazole to be part of the OI programme;
All drugs and tests to be made free;
Better planning of the ART Rollout programme;
Government to take immediate steps to remove taxes on ARVs;
Proper implementation of Country Coordinating Mechanism (CCM) and accessing the Global Health Fund;
Source ARVs from Public Sector Companies.

Talks with the Government to arrive at a Consent Order

The Additional Solicitor General, Gopal Subramaniam, appearing on behalf of the Union of India, submitted that the Government wanted to have meetings with the Petitioners and discuss the Directions sought and try to arrive at a consensus on as many issues as possible. The Petitioners agreed to sit and talk with the government hoping that the government would agree to some of the demands.

Starting from 11 February 2008, several meetings took place between the Petitioners and NACO on account of Lawyers Collective’s initiative. Members of INP+, DNP+, MNP+ and UPNP+ were present in most of the meetings and gave their critical inputs. Meeting after meeting, every issue was discussed and efforts were made to arrive at an agreement. Finally, terms of both agreement and disagreement emerged.

At the last hearing on 5 August 2008, the Additional Solicitor General, Senior Advocate Gopal Subramaniam, submitted a ‘19 point terms of agreement’ for interim orders to be passed by the Hon’ble Supreme Court. The Petitioners sought some time to make some suggestions on the agreement before the interim orders could be passed.

The Supreme Court granted three weeks’ to the Petitioners to make suggestions to the interim directions. Lawyers Collective consulted INP+, which had accompanied Lawyers Collective to all the meetings with NACO and had given very critical inputs crucial for the successful implementation of the ART Rollout programme. The suggestions, reproduced below, have been framed in close consultation with INP+ and DNP+.

NACO has based on the 19 points and suggestions thereon issued Office Memorandum (OM) on the abovesaid 19 points, laying down action taken on each of the points. However certain which have earlier been agreed to by the government have been left out and also there are those issues on which no consensus has been arrived at. These issues will be now discussed in the second round of deliberations between the Petitioners and the Government.

Proceedings in the Court on 1.10.2008

Today ASG Gopal Subramanium presented the OM issued by NACO and the same was endorsed by the Supreme Court as interim directions. However, keeping in mind that the Petitioners have made suggestions to the OM, which will be discussed in the second round of deliberations, the interim directions has been passed subject to modifications.

Further, State Governments will be intimated that they have to implement the interim directions in a timely fashion. Furthermore, NACO has been directed to file compliance report within four months.

The Way Forward

The first round of deliberations with the government has culminated in the issuing of the OM and passing of the Interim Directions thereon. In the second round of deliberations those issues will be discussed which have already been agreed to by the government but left out in the OM and those issues which have not yet been discussed and/or on which no consensus has been reached.

For the outstanding issues, which will be discussed in the second round of deliberations, please refer to the attachment of OM with the comments of the Lawyers Collective and INP+.