A look at these provisions shows that while the Act does have some shortcomings, it has the potential to be used as a tool to realise a wide range of rights and improve the lives of persons living with HIV.
What the HIV/AIDS Act does
The purpose behind passing the HIV/AIDS Act is two-fold: recognise a broad range of rights for persons living with and affected by HIV, as well as provide statutory legitimacy to efforts by the government to prevent and control the transmission of HIV. Like the Rights of Persons with Disabilities Act, 2017 and the Mental Healthcare Act, 2017 preceding it, it is a rights-based legislation which allows people affected by HIV to seek redressal if they face discrimination, or if any of the rights recognised under the Act are denied to them.
Most people living with HIV have faced some form of discrimination in their daily lives. Such discrimination first came to prominence several years ago, through the case of Dominic D’Souza, the founder of the Positive People group in Goa.
In 1989, it was detected that Dominic was HIV-positive after he donated blood at a local hospital. Following this, he was subjected to forced confinement in a former TB sanatorium for 64 days under the Goa Public Health Act. He challenged this action in court, which ordered his release till the court proceedings were over.
Due to efforts by Dominic and several health activists, the Goa legislature also amended the provisions in the Goa Public Health Act which allowed the mandatory isolation of any person in whom the HIV virus had been detected.
Owing to sensitisation efforts by people in the HIV movement and the government, we have made some progress since that case. However, stigma and discrimination against persons living with HIV still persists. It thus becomes crucial to address it through legal means, in addition to existing measures aimed at addressing these issues.
The Act takes the first definitive step in this direction by making discrimination based on ‘HIV-related grounds’ a punishable offence. These ‘HIV-related grounds’ apply not only to persons who are/were HIV-positive, but also to anyone residing with an HIV-positive person. This is limited not only to the family members of the person, but could also include traditional households of transgender persons and same-sex partners.
In addition to this, courts can punish any act or speech expressing or propagating feelings of hatred against a ‘protected person’ by imprisonment up to two years, or a fine up to ₹1 lakh.
Perhaps, two of the groups most adversely affected by HIV-related stigma are women and children. The Act, therefore, makes special provisions for their welfare and well-being. Children who are HIV-positive, either of whose parents is HIV-positive or who are AIDS orphans, can claim special benefits under this Act.
Any person can approach the Child Welfare Committees set up under the Juvenile Justice Act in case the child is being dispossessed from his/her property, if someone has trespassed into the child’s house, or for safekeeping of property documents. It also recognises the guardianship of older siblings below the age of 18 who can handle the affairs of their HIV-affected family. Further, the Act states that women who may potentially face violence do not necessarily have to disclose their HIV status to their spouse.
Finally, the Act addresses an important facet of discrimination faced by vulnerable groups. These include men who have sex with men (MSM), transgender persons, sex-workers, and persons who inject drugs (PWID). The operation of other laws often hinders efforts at reducing the risk of HIV transmission.
In 2001, authorities arrested nine people working for a Lucknow-based NGO under section 377. They then linked this arrest to the nine’s work on HIV prevention among the MSM community. This caused alarm in the HIV community. Now, the Act specifically addresses this issue. It states that authorities cannot punish any measures taken for risk-reduction under any other laws that may affect it. This includes distributing condoms, providing needle exchange services, and Opioid Substitution Treatment to PWID.
The Way Forward
The HIV community has justifiably been critical of some aspects of this Act. The biggest concern is that the Act requires the State provide diagnostics and treatment for HIV ‘as far as possible’. This dilutes state responsibility, and is contrary to the rights-based spirit of the Act. However, one cannot clearly state the exact import of the phrase at this point. It will be up to the courts to decide how broadly to interpret this phrase.
Activists have also criticised the mechanism for enforcing the Act’s rights. The Act sets up an HIV Ombudsman and Complaints Officers (in establishments with more than 100 employees). However, it does not clearly define their function and powers. It is thus crucial for the community to continue its efforts to leverage the tools the Act provides. This will help the government enforce these rights, and maximise the benefits to persons living with HIV.
