Supreme Court case on access to ART

[Guest guest]

Dear friends,

I write this is solidarity of drug activists who have a filed a case in the

Honorable Supreme Court seeking the recognition and implementation of right to

treatment and right to health, of the persons who are suffering from AIDS

(Acquired Immuno Deficiency Syndrome), under the aegis of their fundamental

right to life under the Constitution of India, and for its inclusion in the

national AIDS control policy of the government of India, so that all the AIDS

patients in the country can receive treatment under the public health system.

They need your support for the case, which can turn out to be a landmark one

for HIV/AIDS in India. Write to your local /national media about this case- the

more this case gets publicity; the more chances there are of a favorable

verdict. The next hearing is scheduled for 9th October, so things have to move

slightly fast.

Please send copies of any such articles to :-

Shri Manmohan Sharma,

Executive Director,

Voluntary Health Association of Punjab (VHAP)

S.C.S. 18/1 Sector 10D,

Chandigarh-160011.

The synopsis and the prayer of the petition are attached below:-

SYNOPSIS AND LIST OF DATES & EVENTS

The present Petition being filed in public interest under article 32 of the

Constitution of India, seeks the recognition and implementation of right to

treatment and right to health, of the persons who are suffering from AIDS

(Acquired Immuno Deficiency Syndrome), under the aegis of their fundamental

right to life under the Constitution of India, and for its inclusion in the

national AIDS control policy of the government of India, so that all the AIDS

patients in the country can receive treatment under the public health system.

As things stands today a poor HIV+ person requiring hospitalization and drugs,

receives no treatment in any public hospital and is simply left to die. This is

a shocking state of apathy on behalf of the governments both central and state.

Other nations, even developing nations like India, have programmes for drug

treatment for the poor but India takes the extreme position that the HIV+ poor

will not be tre4ated at all.

At present there are an estimated 5.5 million persons in India who are infected

with the Human Immuno-deficiency Virus (HIV virus), which eventually leads to

AIDS. Until recently, HIV infection spelt a rapid countdown to death for these

“positive persons” as it developed into AIDS and even their shortened life-spans

would be filled with severe agony and sufferings. However, in the last few

years, with the development of a new class of drugs called the Anti Retro Viral

(ARV) drugs, AIDS has ceased to be such a dreadful fatal affliction and is now

seen as a chronic, manageable disease. With the administration of the Anti Retro

Viral (ARV) drugs, a positive person can now get a remarkably enhanced lifespan

with many more healthy and fruitful years. In this sense, today a positive

person can hope to be “treated”.

However, the “treatment” by these life-saving Anti Retro Viral (ARV) drugs is

not being included by the Indian government as part of the public health system

in the country. Though a positive person does not need the Anti Retro Viral

(ARV) drugs till his body’s immunity drops below a certain level, and in this

sense all the 5.5 million positive persons do not need the Anti Retro Viral

(ARV) treatment at the moment, the fact remains that a majority of them are

dependent on the public health system, being from the poor economic strata. The

said policy of the government of not supporting treatment, thus translates into

taking a stand of total indifference and disregard for the lives of these

positive persons as and when their condition develops into contract AIDS when

they would be virtually condemned to rapidly die, in the absence of the Anti

Retro Viral (ARV) drugs.

The first case of HIV/ AIDS in India was reported in the year 1986. As per the

latest available official figures, as quoted by the National AIDS Control

Organization: NACO, in its policy, at the end of the year 2001, the national

adult HIV prevalence rate in India was under 1%, with an estimated 3.97 million

Indians living with HIV/AIDS (as per official figures). However, the unofficial

figure on the total number of positive persons in India is 5.5 million now.

Further, as per the official figures, about 89% of the reported cases are in

sexually active and economically productive age group of 18-49 years.

Further, according to the UN and World Bank statistics, India has the second

highest number of HIV/AIDS infected patients among all nations, second only to

South Africa. To make matters worse, it has been projected that by 2015, India

is likely to have the dubious distinction of being the HIV/AIDS capital of the

world, by when, according to the World Bank, India is likely to have a

catastrophic number of 35 million HIV/AIDS cases. It is thus crystal clear that

with the attendant poverty, increasing unemployment and illiteracy, India is

standing on the threshold of a pandemic, which particularly urgently underscores

the need for Indians to have access to medicines at fair, reasonable, and

affordable prices, under a well-oiled public health system.

It is pertinent to mention that the Brazil government has most notably invoked

the national emergency measures and is manufacturing medicines and distributing

it free of cost to their people. Since the American and European companies

charge exorbitant amount for treatment, putting the treatment far out of reach

of the vast majority in the developing countries, the Brazilian laboratories

have begun to manufacture their own generic versions of patented drugs but at a

staggering reduction cost. While American pharmaceutical companies charge

$10,000-$15,000 per year for treatment; Brazilian generics cost $3,000 and are

expected to as low as $700. Due to continued research the price is still falling

down. Brazil manufactures 8 of the 12 drugs needed. In Brazil the programme now

costs $300 to $400 per year. The Brazilians however claim that the programme

pays for itself. It has been reported that HIV/AIDS program was producing net

savings of $190 million per year as 146000 hospitalisations

were avoided between 1997 and 1999. The programme has also caused a dramatic

decrease in OIs: Cytomegalovirus, which attacks patients in the late stages of

AIDS was reduced by 69 percent in the same period. Also, the patients were able

to remain in the workforce, which also added to the savings.

It is pertinent to mention that in 1994, WHO projected that Brazil would have

1.2 million cases by the year 2000. However, today, the number of infected

people is estimated at 5,30,000 and the number of AIDS related deaths have been

cut by 50 percent since the inception of the government programme and the number

of hospitalizations due to Opportunistic Infections have been reduced by 80%. In

addition to bringing down the death rate, the Brazilians have also succeeded in

another more important area prevention. According to WHO statistics, the

infection rate in Brazil has been brought down to 1995 levels, and has now

stabilized. The government is largely responsible for it : the approach they

have followed has been two-fold: prevention and treatment.

The governments of several other countries have used political will and the

TRIPS Agreement towards making Anti Retro Viral (ARV) drugs accessible and

providing them free of cost to all or atleast to the needy.

Argentina is another country whose government has declared a national emergency

to guarantee free access to Anti Retro Viral (ARV) drugs to all its positive

population.

Cuba is also a country whose government has brought in a specific legislation

which prohibits discrimination against people living with AIDS and guarantees

the right, inter alia, to free medical care, including the Anti Retro Viral

treatment.

A similar legislation has been brought in by the government of Tunisia.

The Uganda Government provides Anti Retro Viral drugs free of charge at all

government hospital. The Government of Botswana has also committed to provide

AIDS treatment and free Anti Retro Viral drugs to the infected persons.

Recently, in May 2002, the Zimbabwe Government declared a state of national

emergency allowing the use of even patented Anti Retro Viral drugs. The

Government of Malawi has recently unveiled plans to provide Anti Retro Viral

treatment to 50,000 positive persons who need them. Taiwan is another country,

which provides advanced Anti Retro Viral combinations for all its positive

persons.

Thus apart from developed countries like Canada, Denmark, Finland etc. some

other developing countries where governments have been supporting treatment by

Anti Retro Viral drugs, totally or for needy persons, are Argentina, Cuba,

Mexico, Mauritius, Taiwan, Uganda, Jamaica, Thailand, Tunisia, South Africa,

Cote d'Ivoire etc. and this step has lead to remarkable reduction on the

incidence of AIDS in these countries and have clearly demonstrated the gains

made by incorporating Anti Retro Viral treatment in their AIDS policy.

It is also pertinent to mention that the right of the AIDS patients to be

provided treatment has been upheld judicially also. The most notable example is

a recent judgment passed by the Supreme Court of Costa Rica. The Constitutional

Chamber of the Supreme Court (Sala IV) upheld the right of a 28 year old Casta

Rican AIDS patient, , a student, to receive treatment and directed

the Social Security System (Caja) to pay for the ARV medication so that

could recover good health.

It is pertinent to mention that India has the advantage of drug manufacturing

companies and use of TRIPS safeguards. Indian companies are manufacturing all

the necessary medicines at a cheaper rate. Out of the 12 drugs recommended by

WHO(Abacavir, didanosine,lamivudine, stavudine, zidovudine, efavirenz,

nevirapine, indinavir, nelfinavir, saquinavir, ritonavir and lopinavir) ten

(Abacavir, didanosine,lamivudine, stavudine, zidovudine, efavirenz, nevirapine,

indinavir, nelfinavir, saquinavir) are manufactured in India. Only ritonavir and

lopinavir are not manufactured which can be replaced by indinavir, nelfinavir

and saquinavir. There are companies like Cipla who have come forward to further

reduce the prices. However, now these companies are growing apprehensive about

the sustainability of manufacturing because of lack of orders from the

government and have indicated that they may abandon further research and even

further production of Anti Retro Viral drugs.

It is also pertinent to mention any stand, which believes in blocking off

treatment and the ensuing right to live from the mushrooming millions of

positive persons is basically against all tenets of humanitarianism and

civilization, especially since almost anyone in today’s society is at the risk

of contracting AIDS. This should be the strongest reason for the government to

take up treatment in the fold of its AIDS policy.

For all the reasons cited above, the present petition is being filed in the

light of the following chronology of facts and events.

1981 The first case of Acquired Immuno-deficiency Syndrome (hereinafter referred

to as “AIDS”) was first reported as “pneumo cystis carinii pneumonia” in Los

Angeles, USA.

1983 The Human Immuno-deficiency Virus (hereinafter referred to as “the HIV

virus” was first identified.

1986 The first case of HIV/AIDS in India reported.

1986 In the meantime, internationally, in the field of treatment for AIDS,

there onwards has been continuous research on the medication for or treatment of

AIDS. The Anti Retro Viral (“ARV”) treatment, which was first introduced in1986

was shown to remarkably reduce deaths and accompanying opportunistic infections

in patients with advanced infection. This particular regimen has shown to result

in dramatic reduction in HIV levels in blood and markedly improved immune

function.

1987 National AIDS Control programme launched.

2001 National Aids Control Organisation (NACO), in its policy, at the end of the

year 2001, the national adult HIV prevalence rate in India was under 1%, with an

estimated 3.97 million Indians living with HIV/AIDS (as per official figures)

the unofficial figure on the total number of positive persons in India is 5.5

million now.

As per the official figures, about 89% of the reported cases are in sexually

active and economically productive age group of 18-49 years.

According to the UN and World Bank statistics, India has the second highest

number of HIV/AIDS infected patients among all nations, second only to South

Africa. To make matters worse, it has been projected that by 2005, India is

likely to have the dubious distinction of being the HIV/AIDS capital of the

world, by when, according to the World Bank, India is likely to have a

catastrophic number of 35 million HIV/AIDS cases.

2001 Declaration of twenty-sixth Special Session of the UN General Assembly held

in June 2001.

29.11.2001 to 1.12.2001

Resolution of International Experts meeting held in Paris, France at the

invitation of the French Ministry of Foreign Affairs, with the support of UNAIDS

Secretariat and WHO which interalia concludes:.

* A real opportunity to impact on the HIV/AIDS epidemic now exists Care,

treatment, and prevention of HIV/AIDS are strongly linked.

* Care constitutes an entry point and a key element for effective prevention.

In low and middle income countries a wide array of life-prolonging care and

treatment interventions are feasible and cost-effective today.

* The sharp drop in the prices of antiretroviral drugs in these countries has

dramatically improved their cost-effectiveness. Several nationwide and smaller

ARV programs have shown adherence levels and efficacy outcomes of therapy that

are similar to those in the developed world.

* Governments, the private and not-for profit sector, and the international

community must now commit the required financial resources commensurate with the

need as identified by the UNGASS declaration.

* Failing to seize this opportunity to expand care and treatment will

perpetuate untold human suffering and increase poverty and inequity on a

worldwide scale.

16.7.2003 Present Writ Petition filed.

PRAYER :

In the light of the abovementioned grounds, it is therefore most humbly

prayed that this Hon’ble Court may graciously be pleased to:

i. Issue a Writ, Order or Direction in the nature of a Writ of

Mandamus or any other appropriate Writ, directing the Respondents to provide for

free and equitable access to Anti Retro Viral treatment to the HIV+ patients by

the government under the public health system.

ii.Issue a Writ, Order or Direction in the nature of a Writ of

Mandamus or any other appropriate Writ, directing the Respondents to review

the National AIDS Control Organization (NACO) policy accordingly.

iii. Issue a Writ, Order or Direction in the nature of a Writ

of Mandamus or any other appropriate Writ, directing the Respondents to create

Infrastructure in the public health institutions including trained manpower of

doctors and paramedics.

iv. Issue a Writ, Order or Direction in the nature of a Writ

of mandamus or any other appropriate Writ, directing the Respondents to

declare a national emergency and invoke the compulsory licensing provision under

the TRIPS Agreement so that the prices of the Anti Retro Viral (ARV) drugs can

be brought down and facilitate research for further improvements in the Anti

Retro Viral (ARV) drugs.

v. Issue a Writ, Order or Direction in the nature of a Writ of

mandamus or any other appropriate Writ, directing the Respondents to raise and

commit the required financial resources, as identified by the UNGASS

Declaration adopted by the UN 26th Special Session in June 2001, by the year

2003, commensurate with the need for supporting treatment within the public

health system.

vi. Issue a Writ, Order or Direction or pass any other or further Order or

Orders in the interest of justice, as it may deem fit, in the facts and

circumstances of the present case.

Dr. Anant Bhan, Flat No. 405,

Building No A-11, Planet Millennium,

Aundh Camp, Pune-411 027.

Phone: 020-7404110

Email: dranantbhan@...