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India: Law Bans Discrimination Against AIDS Patients

(Apr. 27, 2017) On April 24, 2017, Pranab Mukherjee, the President of India, approved new legislation that bans discrimination against people who are HIV-positive or who have AIDS. (Jonathan Niznansky, India President Approves Law Banning Discrimination Against AIDS Patients, PAPER CHASE (Apr. 25, 2017).)

The law was formally introduced in 2014 as the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill (the Bill) by Ghulam Nabi Azad, then Minister of Health and Family Welfare. (The Bill, No. III, 2014, PRS LEGISLATIVE RESEARCH.) It was approved by the two houses of the legislature earlier this month. (Alexis Wheeler, India Parliament Approves HIV/AIDS Prevention Bill, PAPER CHASE (Apr. 13, 2017); Manveena Suri, India to Ban Discrimination Against People with HIV/AIDS, CNN (Apr. 12, 2017).) The legislation has 50 clauses, arranged in 14 chapters that cover a number of topics, including penalties for violation of its provisions.

According to an explanatory statement by Azad attached to the text of the Bill, the purpose of the legislation is

to address the issue of stigma faced by those infected by HIV and AIDS, to ensure confidentiality and privacy while providing HIV and AIDS related services and to strengthen the existing National AIDS Control Programme by bringing in legal accountability. It is also important that existing establishments, both private and public, recognise the need to safeguard the rights of people infected with HIV/AIDS, particularly, women and children. (Statement of Objects and Reasons, ¶ 3 (Jan. 31, 2014), The Bill, p. 17.)

The Bill’s provisions include prohibitions of specific acts of discrimination in education, housing, and employment; articles specifying that HIV testing, treatment, and status disclosure require informed consent; clauses establishing safe working environments; and measures on the creation of mechanisms to redress grievances and investigate complaints. (Id. ¶ 4; Suri, supra.)

Penalties

The penalties established in the Bill include imprisonment for from three months to two years and/or a fine of up to 100,000 rupees (about US$1,550) for persons convicted of publicly advocating hatred, discrimination, or violence against protected persons or propagating feelings likely to expose them to hatred, discrimination, or violence. (The Bill, arts. 4 & 37.) Disclosing the HIV status of a protected person is also subject to a 100,000 rupee fine.  (Id. art. 39.) The Bill defines protected persons as those who are HIV-positive or who ordinarily live or did live with a person who is HIV-positive. (Id. art. 2 (s).)

The Bill provides that each state must appoint an ombudsman who is empowered to hear complaints related to the provisions of the Bill and to issue relevant orders. (Id. Ch. X.) The penalty for refusing to comply with an order of an ombudsman within the designated time limit is a fine of up to 10,000 rupees (about US$156); if the failure to comply is ongoing, there may be an additional fine of half that amount each day the noncompliance continues. (Id. art. 38.)

The legislation also contains a prohibition of mistreatment of whistleblowers in cases related to the issue of treatment of those with HIV or AIDS. The protection covers people who make complaints, bring proceedings, give information, or serve as witnesses in related proceedings. (Id. art. 40.) Judicial Magistrate First Class Courts have jurisdiction to hear cases of offenses defined in the Bill. (Id. art. 41.)

Background

The United Nations AIDS office estimates that as of 2015, about 2.1 million people were living with HIV in India and that 68,000 had died of the disease. (India: HIV and AIDS Estimates, UNAIDS (last visited Apr. 27, 2017).) As of December 2016, one million people in India were receiving treatment for HIV infection. (Id.) The number cited in Azad’s statement attached to the Bill in 2014 was 2.39 million people infected with HIV. He added that the epidemic was largely confined to high risk individuals, such as female sex workers, men in sexual relationships with other men, and intravenous drug users. He argued that it was important to provide services including treatment for sexually transmitted infections, testing for HIV, condoms, and clean needles to prevent the epidemic from spreading to the general population. (Statement of Objects and Reasons, supra, ¶ 1.)

Reactions

India’s current Minister of Health and Family Welfare, Jagat Prakash Nadda, called the law “historic”; the legislation was also applauded by organizations that advocate for the rights of those with HIV.  Steve Kraus of the U.N. AIDS Regional Support Team for Asia and the Pacific said that the “legislation begins to remove barriers and empowers people to challenge violations of their human rights.” (Suri, supra.) According to Huidrom Rosenara of the India HIV/AIDS Alliance, “there have been many incidents of discrimination in hospitals, schools, and communities,” and even though the rate of such incidents has gone down in recent years, they still occur. She added that the legislation “is a long awaited and positive move. We are very optimistic about it as it speaks volumes about the political commitment.” (Id.)