An Interview with Anand Grover—Fighting AIDS in Court
October 2008—Many of the most important advances in the rights of people living with HIV/AIDS in India can be traced to the work of the Lawyers Collective and its HIV/AIDS Unit, headed by Anand Grover. Mr. Grover's landmark legal efforts have included arguing the first HIV case in India relating to employment law and the first case opposing patent law related to medicine. In addition, he has litigated with notable success on behalf of marginalized groups such as men who have sex with men (MSM), sex workers, drug users, women, and children. In this interview, Mr. Grover speaks about the centrality of human rights in the fight against HIV/AIDS.
TREAT Asia Report: The Lawyers Collective recently won a major victory for people with HIV/AIDS who rely on generic antiretrovirals (ARVs). What happened in that case and what are its implications for treatment access?
Anand Grover: Our work on treatment access has long focused on patent protection for ARVs and access to affordable ARVs. This year we prevailed in a case against Novartis, which had challenged a section of the Indian Patents Act by claiming that it did not comply with TRIPS [Trade Related Aspects of Intellectual Property Rights, a major international trade agreement aimed at protecting patents] and that it was unconstitutional.
In 2005, when India passed laws to comply with the TRIPS rules, we had to ensure that patent protection did not allow evergreening, which occurs when a company introduces a modified version of a drug before its patent runs out in order to extend its patent protection and prevent the manufacture of generic versions. Evergreening exists in other countries such as the US, Western Europe, Japan, and Australia. But we ensured that under our patent law, new forms of known substances cannot be patented unless they are significantly superior in efficacy.
If Novartis had prevailed, the Indian generic drug industry would have been adversely affected and the low-priced generic ARVs they manufacture would not have been available when patent protection kicked in. Not only would low priced generic ARVs been undercut in India, but also in other developing countries, where India supplies 50% of the drugs required. We argued that Indian law was not only perfectly within the TRIPS mandate, but that it did not violate the equality clause of the Indian constitution. The Novartis case was decided in our favor.
Apart from patent law, there is an immediate question of how long Indian pharmaceutical companies will remain "Indian" and how long they will remain generic. Matrix is already not an Indian company, it's controlled by a US company, and Ranbaxy has now been taken over by a Japanese company, Daiichi Sankyo. So there is a concern over whether these companies will remain truly generic. Unless we have Indian companies to produce generic drugs, our efforts are not going to be very successful in the long run.
TREAT Asia Report: You've spoken about bulk procurement of ARVs as a way for middle- and low-income countries to afford the medications they need. How would that work?
Grover: For example, right now second-line ARVs are not in demand in India—the government is financing second-line ARVs for only 3,000 patients. Even if we push that number up to 10,000, it's not an economically viable project for the generic or brand drug companies.
But if you bring India, Thailand, Malaysia, South Africa, and Brazil together into a cartel for bulk purchase—which is not anti-competitive at all—then you can actually create a market that is large enough and economically viable for drug companies in India to benefit. The drug companies are looking for economies of scale, and unless that's proactively done by the government, it will be too late.
Currently the procurement of second line ARVs is done through, and the price is set by, the Clinton Foundation. But they go for small purchases and the companies bid for the drugs individually. Right now there's no such thing as a commodities market for drugs. We should be able to create such a market in Asia where people need those drugs that are not under patents so you can move towards economies of scale.
There's no problem with bulk purchasing itself, it's just that the governments of these countries have to start thinking in a collective manner. Individual ministries of health are quite agreeable to this idea but it's not progressing because of various bureaucratic hassles. I'm keen on pushing this as a major step forward.
TREAT Asia Report: The Lawyers Collective has drafted a national HIV/AIDS bill. What approach does the bill take to rights issues and what is its status?
Grover: A few years ago, the Indian government asked the Lawyers Collective to draft a comprehensive HIV bill to protect the rights of people with HIV/AIDS and to prevent transmission. That bill is currently under review by the Law Ministry before it will be presented to Parliament. I'm a bit worried because it is taking a long time. However, we have the full support of NACO [the National AIDS Control Organization], the Health Ministry, as well as civil society.
If we get the HIV/AIDS bill passed, it will protect and promote the rights of HIV-positive people and, in our opinion, help facilitate the curtailment of HIV transmission to the general population. When rights of vulnerable groups are protected, people are empowered and then they're more responsible. The bill we drafted outlaws discrimination against people with HIV/AIDS across the board, both in the public and private sector. In addition, it addresses access to treatment—including first-line, second-line, third-line, and all other drugs and diagnostics, free of charge. With a statute conferring the highest attainable standard of health as an established right, it will help us push universal access forward.
The proposed bill also addresses risk reduction, including safe havens for clean needle and syringe exchange, and condom promotion among MSM and sex workers. It also tackles nondisclosure of confidential information and mandatory testing. In India, confidentiality and consent for testing are covered by common law, which varies from state to state and judge to judge. What we need is a universal, India-wide standard, which is what the proposed bill provides. At the moment, NACO policies are implemented or not, depending on each state. NACO can say, "OK, if you don't implement it we won't give you the money for antiretroviral treatments," but someone might say, "OK, don't give us the money, we want to have mandatory testing anyway."
Of course, the most important aspects of the HIV/AIDS bill are the antidiscrimination clauses because there is a lot of stigma attached to HIV. Preventing that requires not only understanding but legal recourse, which the bill provides.
TREAT Asia Report: Your office is also representing a challenge to India's anti-sodomy law, which essentially makes homosexual behavior illegal. Where does that case stand?
Grover: The matter is being heard in the Delhi High Court right now, if it actually starts on time. By the end of the year we should have a verdict. Initially the matter was dismissed by the Delhi High Court, but the Supreme Court remanded it back, saying they should decide afresh and not summarily dismiss it. If we win, the law that criminalizes what it calls "unnatural sex" (sodomy or oral sex) would no longer be in force.
TREAT Asia Report: Where do harm reduction efforts stand in India?
Grover: One of the major lines of our work in the Lawyers Collective involves concentrated HIV epidemics among marginalized groups, such as drug users, sex workers, and MSM. As these groups are the most vulnerable to HIV, they need to be protected, so we are working to develop their rights concretely. One of the primary ways we're trying to do this is by fighting for harm reduction measures. We're doing a lot of advocacy with the Health Ministry and they're totally convinced about the wisdom of harm reduction. They're also convinced about changing the laws relating to homosexuality, sodomy, and sex workers. Recently, some of the ministers in the government have come out in support of decriminalizing sodomy and same-sex relations, which the proposed HIV bill does. While the proposed bill provides safe havens, it does not legalize drug use.
Harm reduction is being pushed as policy but currently it is not protected by law, so someone can just turn around and say, "Why are you doing all this nonsense? We're going to stop it because you're not allowed to do it under the law." So we have to give them protection and that's what the proposed bill does. It's still a huge political battle to be fought in the mainstream.
TREAT Asia Report: You were recently appointed by the UN Human Rights Council to the post of the Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Mental and Physical Health. What will the position entail, and how does your work on HIV influence your approach to this mission?
Grover: As the new Special Rapporteur, I will be in a position to address serious violations of the right to health worldwide. Basically, the aim is to advance the cause of human rights and health, not only in relation to HIV but also with other major diseases such as tuberculosis [TB], malaria, and hepatitis.
A lot of the most successful human rights interventions in health have been exemplified in HIV—particularly the rights-based approach and the involvement of affected communities, which have made a big difference in terms of whether you treat health as a human right. These have to be replicated in other areas. As an example, access to treatment is a big issue everywhere, not only with HIV. In other countries, the treatment of TB and malaria is becoming a rights-based issue. So the rights-based approach is something we have to carry beyond HIV.
Treatment isn't only from the top down—it's actually about implementing rights and empowering people. A lot of countries think, "What have rights got to do with health?" But if you motivate and activate the community to demand its rights, whether it's the deployment of resources or access to treatment, that means that the community is not dependent on healthcare professionals alone. Healthcare is then more of a team effort, from patients to healthcare workers to the government.
As Special Rapporteur, I hope to address gross and serious violations of the right to health by holding regional consultations with affected communities. Women and children, sex workers, people with HIV, drug users, historically oppressed groups such as natives and indigenous peoples, even health professionals—the voices of these communities have been unheard, and they need to be at the forefront of decision making. Our experience with HIV has shown that community input is extremely important.
It's a big challenge for the Special Rapporteur, especially because this is about health. It's easy to understand the rights-based approach to political rights. With health, people still question it. But that message has to be understood and replicated and implemented across the board.