The new HIV/AIDS Bill is great, but ineffective when the vulnerable are criminals under other laws

Editor’s Note: This article was originally published on 7 October, 2016. It has been republished in light of World AIDS Day on 1 December, 2016. After years of deliberating on the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) (Prevention and Control) Bill, 2014, the Union Cabinet has finally approved it, with amendments, on Wednesday in a meeting that was chaired by Prime Minister, Narendra Modi. The Bill is a long-awaited legislation that seeks to end societal stigma and discrimination of people living with HIV (PLHIVs) and ensure their right to privacy. The Bill takes a human-rights approach to public health, and makes antiretroviral treatment a legal right of HIV/AIDS patients. This would mean that it is now obligatory for the Central and State governments to provide for anti-retroviral therapy (ART) and arrange for the management of risk reduction of vulnerable populations. The legislation prohibits arbitrary and discriminatory acts by the state against PLHIVs and their families. The HIV/AIDS Bill, therefore, has the foundations of civil liberties at its centre, providing for positive and negative obligations for the State towards approximately 21 lakh PLHIVs in India. Populations who are most vulnerable to HIV/AIDS are female sex workers (FSWs), men who have sex with men (MSMs), transgenders and intravenous drug-users. The Bill seeks to protect these high-risk groups from discrimination, both through administration of treatment for their infections as well as improving their access to welfare schemes and services. Any discrimination or unfair treatment against PLHIVs and their families in their employment, education, healthcare and provision of insurance is prohibited; they also cannot be banned from housing or renting property and from standing for public or private office. Moreover, by bringing in legal accountability in the treatment and care of the PLHIVs, the Bill also mandates for a formal mechanism to probe on complaints of violations of the Act. Most importantly, it seeks to safeguard the privacy of the PLHIVs by stating that no HIV test, medical treatment, or research will be conducted on a person without his/her informed consent. The Bill also makes it mandatory for institutions and establishments keeping records of PLHIVs to adopt data protection measures. By providing for a progressionist approach that safeguards the human rights of the affected, while simultaneously providing for risk and vulnerability reduction, that has its roots in social and economic justice, the Bill is an example of sound affirmative action. [caption id=“attachment_1829567” align=“alignleft” width=“380”]  Representational image. AFP[/caption] However, will the adoption of this Bill be action enough for a bias-free environment for the people living with HIV and their families? While the Bill mandates for prevention of HIV/AIDS, will it be able to protect those who are most vulnerable to infections, namely the high-risk groups (intravenous drug-users, FSWs, MSMs, and transgendered individuals)? Moreover, the Bill does not elucidate on the legal dissonance between its provisions of non-discrimination and other acts and case-law that discriminate against sex-workers, homosexuals and transgenders. For example, the Immoral Trafficking Prevention Act, 1956, that, despite its silence on the legality of sex-workers, is used by law enforcement to criminalize, punish and prosecute female sex workers. Moreover, the LGBTQI population also faces egregious human rights violations by the State and law enforcement; the Supreme Court judgment in Suresh Kumar Koushal v. Naz Foundation sought to reinstate the archaic Section 377 of the IPC, thereby validating the criminalizing treatment of the State towards the LGBTQI community. By not safeguarding the rights of sex-workers, MSMs and transgenders, the State continues to push them into further victimhood. How does the HIV/AIDS Bill, then, epitomise the clauses on anti-discrimination of the PLHIVs, when the most vulnerable continue to live, in the fringes of society, their identities, governed by morality, but still unprotected by any legislation? The HIV/AIDS is, by all means, a cause for revelry within the communities as well as for advocates for the vulnerable. However, in my opinion, the HIV/AIDS Bill cannot be isolated from all the other issues currently tabled in the Parliament and the Supreme Court – the passing of an Anti-Trafficking Bill that does not incriminate all sex-workers; the ratifying of the Transgender Persons Bill, 2016 that provides for a comprehensive understanding of the transgender identity; the five-judge Constitution Bench that will decide the fate of Section 377, and therefore, the fates of the MSM, gays and transgender communities. It cannot be denied that HIV/AIDS patients have had an arduous journey, legally. In December 2010, the Supreme Court struck down all reservations of the Central government to repudiate its obligation towards PLHIVs by stating that receiving second-line ART treatment to all HIV/AIDS patients was subsumed under Article 21 of the Constitution – the right to life. The Cabinet’s nod to the Bill is, therefore, commendable. The Union Minister for Health and Family Welfare, JP Nadda has stated – “The Bill seeks to prevent stigma and discrimination against people living with HIV. These amendments will allow families that have faced discrimination to go to court against institutions or persons being unfair”; but how will the Bill have this power when many of the vulnerable don’t have the luxury to express themselves or define their identities and are continued victims of violence and stigma in both public and private spaces? The author is a human rights lawyer and researcher based in Bengaluru.