PHA-Exchange> Delhi High Court on ARV Treatmnet

[AMTC India]

The Hon’ble High Court of Delhi recently, on 05. 05. 04, pronounced an order upholding an HIV positive person’s fundamental right to access treatment and medicines. A brief background of the facts and summary of the order is given below. ?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />



LX v. Union of India & Ors,

WP (Civil) 7330 of 2000,

High Court of Delhi at New Delhi



The Petitioner is an HIV positive person who was lodged at Tihar Jail in Delhi. While in jail, he was found to be HIV positive and in April 2000, was put on a regimen of Anti Retroviral Drugs (ARVs), consisting of Duovir (AZT and Lamividune) Sequinavir by the jail authorities. In doing so, the hospital administration did not inform him that the medication has to be taken for life; and that an interruption or discontinuation has grave ill-effects on health. They also failed to consider the sustainability of treatment, given the cost of ARVs and the Petitioner’s inability to afford such expensive medication.  

 In May 2000, the Petitioner was granted bail. However, the jail authorities informed him that they would discontinue to dispense ARV medicines if and when he is released on bail. As a consequence, the Petitioner was caught in a dilemma where he could either enjoy his freedom or his medicines and health. It led to a peculiar situation where the Petitioner had to give up the fundamental right to personal liberty in order to enjoy the right to life. Both these rights are, of course, guaranteed to all citizens under the Constitution of India. 

 The issue was brought before the Hon’ble High Court of Delhi through a writ filed in December 2000 where it was argued that there is a positive obligation on the state to ensure that the Petitioner receives ARVs even after his release on bail. A failure to do so would constitute an infringement of fundamental his right to life and health. 

 Pending disposal, the Hon’ble High Court issued an interim order in January 2001 directing the jail hospital to supply the same ARVs to the Petitioner. This order was modified a year later to allow the Petitioner to receive medication from the All India Institute of Medical Sciences (AIIMS) as receiving them from the jail posed many administrative difficulties. Accordingly, the Petitioner continued to receive his medicines from AIIMS. 

 In January 2004, the Government of India’s decision to provide free ARVs to people living with HIV/AIDS through the ART roll out plan was brought to the notice of the Court. In the light of this, the Court directed the petitioner to present himself for a medical examination and for his medicines at Lok Nayak hospital (LNJP), one of the hospitals designated for ART Roll out in Delhi.  

 At the hospital, however, the petitioner was told that he does not qualify the criteria for receiving medicines under the ART roll out plan and that the combination of drugs that he had been prescribed were not provided under the scheme. 

 The Court was informed about the hospital’s refusal to provide treatment to the Petitioner The Hon’ble Court in its final order by Justice Sanjay Kishan Kaul directed that the petitioner be supplied medicines at AIIMS till 30th June 2004. Thereafter, the Government has been instructed to enroll the Petitioner for treatment under the ART plan wherein he shall be administered medical tests and medication for life. 

 The Government requested the court to allow them to substitute the Petitioner’s medicines to those under the current ART plan if feasible. The Court allowed such switch over of medicines on the condition that the efficacy of the drug combination under the ART plan should be assessed through a medical examination. If it is found that the medicines under the ART plan do not provide the same benefits to the petitioner as before, then he shall be given the present ART combination. In other words, the court ordered the Government to provide all medicines that the petitioner has been taking, irrespective of whether they are available under the ART plan or not. 

 The High Court’s decision has provided much needed relief to the Petitioner, who had been facing uncertainty vis-à-vis access to medicines and healthcare by ensuring continued access to medical treatment and ARV drugs. He is now assured of his medicines as well as his freedom. Given the general difficulty in accessing justice, the order assumes significance in that it positively and strongly reinforces the rights of HIV positive persons to life and liberty.

 For more information, please contact the Lawyers Collective HIV/AIDS Unit at aidslaw1 at lawyerscollective.org 


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