The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017

INTRODUCTION

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (hereinafter been referred to as the HIV and AIDS Act, 2017) happens to be one of the most recent statutory laws to be passed by our Legislature.  This Act was passed on the 21^st of April, 2017, after having got the assent of the President on 20^th of April, 2017. It is indeed a crucial Act considering the population of 21 lakh, who are directly or indirectly affected by this legislation. Add to this, the highly vulnerable class of people i.e. the female sex workers, LGBT (Lesbian Gay Bisexual and Transgender) community and intravenous drug users, and the number of people affected by the HIV and AIDS Act, 2017 becomes alarming.

It has been for a very long time now that, people affected by HIV and AIDS have been marginalised by our society. Considering such kind of social exclusion that has been inflicted on them, this Act becomes further more indispensable.  The preamble of the HIV and AIDS Act, 2017 clearly states that its purpose is to control Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and to protect the human rights of people affected by the human immunodeficiency virus.

It also speaks about India’s commitments to the General Assembly of the United Nations on the Declaration of Commitment on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome.

Definitions:-

For the purpose of this clarity, Sec 2 of the HIV and AIDS, 2017 enlists the following definitions:-

1. HIV: – The term HIV has been used as an abbreviation for Human Immunodeficiency Virus.
2. AIDS: – The term AIDS has been used as an abbreviation for Acquired Immune Deficiency Syndrome. It refers to a condition characterised by a combination of signs and symptoms caused by Human Immunodeficiency Virus which attacks and weakens the immunity of human body.
3. PLHIVS: – This term has been used as an abbreviation for ‘people living with HIV and AIDS’.
4. Post Exposure Prophylaxis: It refers to the taking of Anti-Retroviral Medicines on being potentially exposed to HIV, to prevent being infected.
5. HIV- Positive person: – This term refers to any person whose HIV test has been confirmed as positive.
6. Protected Person: Protected Person have been defined as any person who is: –
7. HIV- Positive; or
8. living, residing or cohabiting with a HIV- Positive person; or
9. Known to have lived, resided or cohabited with a person who was HIV- Positive.
10. Discrimination: – This Act refers to discrimination as an act or omission, which directly or indirectly, imposes any burden, or denies any benefit or opportunity on any category of persons on any HIV related grounds.
11. Informed Consent: This Act defines ‘informed consent’ as consent given by an individual or his representative, to any proposed intervention, without any coercion, undue influence, misrepresentation etc. Such information may be relating to the guidelines of the proposed intervention or any benefits or risks attached to it.

Important Provisions 

1. Prohibition of Discrimination: Sec 3 (a) of the HIV and AIDS Act, 2017 states that no person shall discriminate against any protected person. Discrimination which leads to denial or termination from employment of a protected person, who is otherwise qualified, shall require the furnishing of a written assessment of a qualified independent healthcare provider which suggests that such a person poses significant risk of transmission of HIV to other people in the workplace. Further, a written statement, stating the nature and extent of financial hardship for not providing him reasonable accommodation has to be furnished by the employer.

Sec 3 (b), (c) and (d) restrict denial, discontinuation or unfair treatment for such protected persons in case of employment, healthcare services and educational institutes.

Sec 3 (f) restrict any denial, discontinuation or unfair treatment with regards to the right of movement, in case of a protected person.

Sec 3 (h) restrict discrimination against such protected persons by denial, discontinuation or unfair treatment of the opportunity to hold or stand for private or public office.

Sec 3 (l) restricts discrimination on the pretext that HIV testing is a pre-requisite for obtaining employment or accessing healthcare services, education etc.

2. Prohibition of propagating hatred: Sec 4 clearly prohibit any person from either writing or publishing or speaking anything that would generate feelings of hatred against protected persons. This provision also prohibits any act which is likely to expose such protected persons to discrimination or physical violence.

3. Informed Consent: Chapter III of the HIV and AIDS Act, 2017 deals solely with Informed Consent.

Sec 5 states that no HIV test shall be performed upon any person without informed consent duly received from him or his representative in a manner that has been suggested in the guidelines. It also prevents the medical treatment, interventions or research on any protected person without informed consent.

Informed consent for any HIV test must involve pre-test and post-test counselling to the person being tested.

Sec 6 enumerates situations when such informed consent shall not be necessary. They are as follows:-

1. When a court, by its order determines that carrying out an HIV test is necessary for determination of issues, in any matter that is before it;
2. For the purpose of procuring or distributing body parts for medical research;
3. For the purpose of surveillance, where HIV test is anonymous and not for the purpose of determining the HIV status of a person;
4. Lastly for the purpose of screening of blood by any blood bank, informed consent shall not be necessary.

Sec 7 states that, all diagnostic centres or pathology labs shall conduct tests in accordance to the guidelines prescribed for conducting such tests.

4. Disclosure of HIV status: Chapter IV of the HIV and AIDS Act, 2017 deals with the ‘Disclosure of HIV Status’.

According to sec 8 (1) of the Act, no person shall be compelled to disclose his HIV status, except by an order of the court. It also states that in case a person has shared his HIV status to another person, in confidence or by relationship of a fiduciary nature, such person having the information shall not be compelled to disclose such information without the informed consent of the person whose HIV status in in issue here.

Such informed consent shall not be required in cases mentioned below:

1. By one healthcare provider to another, under whom such person is receiving treatment;
2. By an order of the court, to determine the issues relating to a matter before it;
3. When disclosure of such information is critical for filing a suit.

5. Duties of Healthcare Providers: Sec 2 (h) of the HIV and AIDS Act, 2017 defines a healthcare provider as an individual whose vocation or profession is directly or indirectly related to the maintenance of health of another.

Sec 9 of the Act deals with duties of healthcare providers. It states that no healthcare provider, except a physician or a counsellor, shall disclose the HIV positive status of a person to his or her partner. A Physician or counsellor may disclose such information to the partner, if he believes that the partner is in significant risk of transmission of HIV or if he is satisfied that the person will not inform the partner.

6. Duty to prevent transmission: According to sec 10 if the Act, it is the duty of every HIV positive person, who has been counselled in accordance to the guidelines, to adopt preventive measures to check the transmission of HIV.

7. Employers and Establishments: Chapter V deals with the duty of establishments towards protected persons.

8. Applicability: The provisions under Chapter V are applicable to establishments having one hundred or more employees. In case of healthcare providers, for these provisions to be applicable, there must be twenty or more employees.

9. Duties of Employers and Establishments: Sec 11 states that it shall be the duty of an establishment to maintain confidentiality of data relating to the HIV status of protected persons.

Sec 19 prescribes every establishment involved in providing healthcare services to ensure safe working environment. In this regard, every establishment must provide:

1. Universal Precautions to its employees who may be occupationally exposed to HIV;
2. Training for the use of such Universal Precautions;
3. Post Exposure Prophylaxis to all employees who are occupationally exposed to HIV and AIDS.

Sec 21 mandates every establishment to have a Complaints Officer, who shall dispose complaints relation to violation of provisions under this Act.

10. Duties of Central and State Governments:

Sec 13 states that the Central and State Governments shall take measures to prevent the spread of HIV AIDS.

Sec 14 refer to measures that the Central Government and State Governments shall adopt as far as possible. It involves Anti- Retroviral Therapy and Opportunistic Infection Management.

Sec 15 mandates the Central and the State Government to develop welfare measures for persons infected or affected by HIV or AIDS.

Sec 17 involves promotion of HIV and AIDS related information, education and communication programmes towards the spreading of awareness of HIV AIDS.

11. Measures for Women and Children: Sec 16 states that the Central and the State Governments shall take appropriate measures to protect the property of children affected by HIV and AIDS.

 Sec 18 instructs the Central Government to lay down guidelines, regarding care, support and treatment of children infected with HIV AIDS. It also states that the Central and the State governments shall provide information to HIV infected women about HIV related treatment and outcome of pregnancy.

The Act provides that in case of passing any order of maintenance, the court shall keep in mind the expenses for treatment of a protected person and pass orders accordingly.

12. Ombudsman: Sec 23 deals with the appointment of an Ombudsman to settle disputes. The section speaks about the powers of an ombudsman, procedures to file a complaint to an Ombudsman and the orders that he may pass.

13. Expeditious Proceedings: This Act requires Courts to initiate cases of protected persons on priority basis and conduct a speedy trial. It also states that proceedings of protected persons shall be in-camera.

14. Penal Provisions: Sec 37 to 42 includes the Penal Provisions. It deals with the various penalties prescribed for any person who acts in contravention to the provisions of the HIV and AIDS Act, 2017.

Conclusion

In the light of the enumerable cases of victimisation of people affected with HIV AIDS, this Act comes as a relief for the protected persons. People are sceptical about the effectiveness of such legislation. Especially in a conservative society like India, where people with HIV AIDS are looked down upon, one remains unsure about how far such an Act would be able to protect the rights of such people. The inclusion of the phrase “as far as possible” u/s 14 has rendered a sense of lacuna, as if to leave the implementations of the said provisions at the mercy of the Government. Nevertheless, this happens to be a step in the right direction and probably with many more to come.