India Takes a Landmark Step to Protect People With HIV
India is the first nation in South Asia to pass legislation that specifically protects people living with HIV from discrimination in sectors like the workplace and housing. Human rights advocates deemed this an important moment, but critics warn that the law doesn’t go far enough.
Last week India’s lower House, the Lok Sabha, passed the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome Prevention and Control Bill, 2017 (VAIDSPC). The legislation had previously passed India’s upper lawmaking chamber, the Rajya Sabha, meaning that it is now on course to become law.
The bill was spearheaded by senior Congress leader and former health minister Ghulam Nabi Azad in 2014, and it has undergone a long process of debate and reform since that time. Versions of the policy have actually been touted for over a decade and a half, but this bill now combines many separate strands to protect those living with HIV in a more comprehensive way.
Steve Kraus, director of UNAIDS told the Guardian: “This is an important step forward for people living with and affected by HIV in India and around the world. This legislation begins to remove barriers and empowers people to challenge violations of their human rights.”
Estimates provided by the World Health Organization suggest that 4.8 million people are living with HIV in Asia. Nearly half of that population — 49 percent — live in India.
The Indian government has taken great strides when it comes to prevention strategies, but it has been faulted for not actually helping people who already have HIV. By ensuring that people receive their medication and that the virus is suppressed, we can greatly cut the chances of virus transmission during casual sexual encounters and via pregnancy, while also maintaining the health of people living with HIV.
To that end, the VAIDSPC legislation states that antiretroviral therapy is a legal right. Specifically, the legislation notes that “every person in the care and custody of the state shall have right to HIV prevention, testing, treatment and counselling services.”
The legislation also mandates that both national and state government must provide those treatments, while also allowing for community welfare schemes that will be able to serve Indian communities that are most affected by HIV.
Going one step further, the policy defines what it means to discriminate against people living with HIV. Unlawful discrimination may include terminating someone’s job based on their HIV status, refusing to rent a property or let someone reside within a property after disclosure of HIV status or barring people from accessing education, healthcare or public or private office opportunities or services.
The bill specifically makes it unlawful to require mandatory HIV testing in order to access education, employment or health care. The legislation outlines that it is only through informed consent that HIV testing or treatment can be carried out — unless a court order is obtained for extraordinary circumstances, for example if a person is suddenly unable to give consent.
On the whole, the legislation seems like a positive step forward. Indeed, in a nation where there has been a significant stigma surrounding HIV — not particularly unusual, but sadly persistent in many parts of the world — the spirit of this bill is both optimistic and necessary. However, it is not without its problems.
Campaigners warn that bill has a major weakness.
While the intent of the bill appears solid, one area has caused major concern for some analysts. Section 14 of the bill reportedly states: “The measures to be taken by the central or state governments under section 13 shall include measures for providing, as far as possible, anti-retroviral therapy and opportunistic management to people living with HIV or AIDS.”
The issue comes with the phrase “as far as possible” because it is not further defined anywhere else in the legislation. This, critics argue, means that local governments could reasonably — and legally — argue that their finances are too stretched by this measure to provide HIV medication. Given that access to HIV medication is a particularly acute challenge in impoverished areas of India, this wording could let down the most vulnerable people who live with HIV.
And one additional part of the bill has also raised concern. Regarding the anti-discrimination provisions, the wording seems strong but the execution of that intent could present an issue.
The bill requires an ombudsman to be employed in each state to oversee enforcement of the anti-discrimination measures and to adjudicate cases. It’s unclear how the central government will compel state governments to do this or sanction them if they refuse. As a result, the nondiscrimination provisions may not be enforced as strictly as is necessary.
The bill can still be amended, and campaigners say that this isn’t just wise but also absolutely necessary to make good on the legislation’s intent. While those serious concerns remain, it is clear that India has at least heard and acknowledged the voice of its HIV-positive community. It would be a serious threat to public health and human rights if the country’s legislation doesn’t live up to its promise.
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