amfAR, The Foundation for AIDS Research

Taking Discrimination to Court in India

The TREAT Asia Report Interview: Anand Grover

Anand-Grover,-project-direct-of-the-Lawyer’s-Collective-HIV-AIDS-Unit.jpgAnand Grover, project direct of the Lawyer’s Collective HIV/AIDS Unit

Anand Grover served as the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health from 2008 until July 2014. He remains project direct of the Lawyer’s Collective HIV/AIDS Unit in New Delhi and has led many of the landmark legal efforts that advanced the rights of people living with HIV in India, including the lawsuit that resulted in the temporary decriminalization of homosexuality in 2009. Grover has also successfully argued cases about HIV-related discrimination in the workplace, drug patent laws, and the human rights of all marginalized populations impacted by HIV, including men who have sex with men (MSM), people who inject drugs (PWID), and sex workers.

TREAT Asia Report: You recently stepped down after six years as the U.N. Special Rapporteur on the right to health. What do you view as the Asia-Pacific region’s most important accomplishments regarding improving access to quality, comprehensive HIV care during that time?

Anand Grover: There have been several achievements. Between 2009 and 2013, there was a 46% increase in overall HIV treatment coverage, which is a huge achievement in such a short period. This was possible largely because there was investment in empowerment of communities affected by HIV, which created an increased demand for services and caused community and civil society participation in decision-making at all levels of policy formulation, implementation, and monitoring of implementation.

Since 2001, there has been a 26% reduction in the rate of new HIV infections in the region; however, certain trends have emerged that are deeply concerning. In the Asia-Pacific, HIV is now mainly concentrated among key vulnerable populations, like MSM and PWID. Countries in the region should focus on HIV prevention and care services for these groups to ensure that HIV is controlled and all those who require treatment get access to it.

TA Report: What are the critical challenges that remain to facilitating access to HIV care, both in the Asia-Pacific region and globally?

Grover: The epidemiological data on the trends of HIV in different regions warrant focused interventions to address regional needs. Even with access to treatment services increasing over the last decade, around 50% of the people who require treatment in the Asia-Pacific region do not have access to it. The epidemic in the Asia-Pacific region is highly concentrated among particular vulnerable groups. Prevention efforts must, therefore, focus on these groups by creating an environment where they are able to pursue their right to health to the fullest.

Anand Grover (left) with Daniel Lee (right), executive director of the Levi Strauss Foundation

Due to increased access to treatment, many people living with HIV (PLHIV) are no longer dying of HIV, but from co-infections with hepatitis C (HCV) and tuberculosis (TB), which urgently need to be attended to. Both diseases have a larger prevalence than HIV. Large-scale programs similar to those used to address HIV have to be initiated for these diseases, and lessons learned by responding to HIV, like the importance of community participation, must be replicated.

In the face of reduced funding for HIV programs globally, it is important to ensure sustained and reliable funding from agencies like the Global Fund, so prevention and treatment efforts do not suffer. In addition, community and civil society groups must be vigilant in challenging patents on second- and third-line antiretroviral (ARV) drugs, which are going to be important in the future to ensure that ARVs continue to be affordable and available in the region.

TA Report: What effect do laws criminalizing the HIV risk behavior of key populations, including men who have sex with men, people who inject drugs, and sex workers, have on controlling the epidemic? What legal reforms could help countries better meet those populations’ HIV-related needs?

Grover: In all cases, criminalization drives vulnerable groups—i.e., MSM, PWID and sex workers—underground, and they cannot access legitimate health services. Stigma attached to criminalization exacerbates their vulnerability. Consequently, they engage in unsafe practices that increase the risk of transmission of HIV—sex workers and MSM by not using condoms and PWID by sharing needles.

In my view, it is of utmost importance that key vulnerable groups be fully empowered. Consequently, all practices related to sex work and also consumption and possession of drugs ought to be decriminalized. There is a movement towards this all over the world. Homosexuality is now decriminalized in many countries around the world. Though criminalization of buying of sex has emerged as a popular alternative to criminalizing sex work in Europe, it has not found favor with decision-makers in other countries.

In terms of drug use, many Latin American countries have started a movement for saner laws. However, Asia is the most regressive on this issue because of laws imposed by colonial rulers and, later, under three different drug conventions that retained this colonial culture. Note that alcohol and cigarette consumption is not criminalized, whereas cannabis and coca—which possess medical value, but have traditionally been used in Asia and Latin America—have been criminalized. The United States, which was on the forefront of the “War on Drugs,” is now seeing legalization of cannabis is some states. In my view, developing countries need to approach reducing drug use through education and regulation, not prohibition.

Anand-Grover,-UN-Special-Rapporteur-on-Health-speaks-at-Amnesty's-Poverty,-Health-and-Human-Rights-Event-at-Stormont.jpgAnand Grover speaks during an Amnesty International event addressing poverty, health, and human rights. (Photo: Amnesty International)TA Report: The Lawyers Collective led the legal case that in 2009 resulted in the Delhi High Court overturning Section 377 of the Indian Penal Code that criminalized homosexuality. Last December, the Supreme Court overturned that decision, recriminalizing homosexuality. How is the law being enforced and has it had an effect on access to HIV care among LGBT in India? What are the current strategies for pursuing re-legalization of homosexuality in India?

Grover: After the declaration of the Supreme Court in the Suresh Kumar Kaushalcase, there have been a number of cases around the country where gay men have been blackmailed by the police or their sexual partners. This will continue until the law is declared unconstitutional by the Supreme Court or the Parliament.

Our current strategy is to pursue the petition to overturn the decision in the Supreme Court and hope that we get a successful verdict. At the same time, we are also advocating against the law at other levels of government.

TA Report: The Lawyers Collective has led anti-patent cases that improved access to generic ARVs in India and in the many countries to which India exports them. There are now new patents being submitted in the region by makers of novel hepatitis C medicines. Could you describe the impact that granting these patents could have on accessing affordable hepatitis C treatments?

“The TPP and EU-India FTAs have to be opposed by community and civil society groups, and other voices must also be raised to ensure that access to medicines continue to be a reality for developing countries.”At the moment there are no patents in India for HCV medicines. Some patent applications have been filed, including for sofosbuvir, daclatasvir, and ledipasvir. The Lawyers Collective, acting as the lawyers for the Asia Network of Positive People (APN+), the HepC Coalition (HepCon) Nagaland, and the Sankalp Rehabilitation Trust, has filed an opposition to a sofosbuvir patent and is also planning to file oppositions to several other new HCV and TB medicines. We hope that the patents are not granted. However, if a patent is granted, say for sofosbuvir, it will become very difficult for medicines to stay affordable in developing countries.

Gilead [the company that owns and makes the drug] has also entered into voluntary licenses (VLs) to allow the manufacture of sofosbuvir. However, though the VL agreements allow Indian generic companies to manufacture sofosbuvir to supply India and some other countries, several high burden developing countries like Egypt, China, and Ukraine have been left out of the licenses. And although the VLs seem attractive at first blush, in the past they have contained restrictive conditions that give Gilead control over deciding the sourcing and supply of active pharmaceutical ingredients, which in the long run thwarts competition. Competition from generic companies has been the basis of substantial price reductions of life-saving ARV medicines. If there is no generic competition, access to medicines will become more and more difficult in the long run.

TA Report: What effect do you think trade agreements like the Trans-Pacific Partnership (TPP) and EU-India will have on access to affordable ARVs and other lifesaving treatments in the region?

Grover:  The TPP and EU-India free trade agreements (FTAs) seek to include TRIPS Plus provisions [The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) set minimum global standards for intellectual property protection. Provisions that seek to increase those protections are known as TRIPS Plus.] It is still not clear what the provisions of these two agreements will be, but our main concern, based on past experience, is that that they will keep affordable drugs out of the reach of most people.

For example, the FTAs could include provisions for data exclusivity. Data exclusivity disallows drug regulatory authorities from using the data of the innovator company to decide whether a generic version can be introduced to the market. This provision could result in patent monopolies continuing, and drug prices staying high.

Section 3 (d) of the Indian Patents Act prohibits patents on new forms of known substances unless they are significantly more efficacious than the known substance. This weeds out undeserving patents and allows only genuine inventions to be patented. Some FTAs demand restrictions on provisions like Section 3 (d), which will result in a lot of undeserving patents being granted.

TRIPS allows states to issue compulsory licenses to make drugs affordable and available if the patent holder does not do so. Several FTAs seek to restrict the grounds on which compulsory licenses can be granted. In addition, under TRIPS, if a pharmaceutical company sells a patented drug in different countries at different prices, a consumer or any other entity can buy the patented drug in the country where it is priced lower and import it into the country where it is priced higher. FTAs seek to restrict this.

Some FTAs also contain provisions that allow private arbitrators from developed countries to bypass domestic courts and prosecute governments for actions they have taken, even when the actions are in the public interest. These tribunals often award damages which run into millions of dollars—sometimes more than health budgets of countries. Countries like Greece have been economically devastated by such decisions.

In sum, the TPP and EU-India FTAs have to be opposed by community and civil society groups, and other voices must also be raised to ensure that access to medicines continue to be a reality for developing countries.

TA Report: What’s next for you and the Lawyers Collective?

Grover: Currently, the Lawyers Collective is working with other groups to oppose pressure from U.S. businesses, the administration, and the U.S. Trade Representative to change India’s patent law and make it like their own. We hope our government won’t fall prey to such machinations.