The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
Background and Purpose:
The HIV/AIDS epidemic is a major public health challenge in India and worldwide. Prior to this Act, there was no comprehensive legal framework in India that specifically addressed the rights, prevention, and control of HIV/AIDS. The Act was enacted in 2017 to provide legal protection to people living with HIV/AIDS (PLHIV), reduce stigma and discrimination, and establish mechanisms for prevention and control of HIV/AIDS.
The Act is a landmark law that balances public health goals with the fundamental rights of individuals affected by HIV/AIDS.
Key Objectives of the Act:
Prevent and Control HIV/AIDS: Through awareness, testing, counseling, and treatment services.
Protect Rights of People Living with HIV/AIDS: Prohibit discrimination in employment, education, healthcare, and access to public services.
Promote Confidentiality: Ensure that the HIV status of an individual is confidential and not disclosed without consent.
Provide Access to Treatment and Care: Facilitate timely access to counseling, testing, and treatment.
Promote Non-Discrimination and Equality: Establish legal recourse against discrimination and harassment.
Key Provisions of the Act:
Prohibition of Discrimination:
No person living with HIV/AIDS can be denied employment or terminated solely on the basis of their HIV status.
Educational institutions cannot refuse admission or expel a student on the grounds of HIV status.
Healthcare providers cannot deny treatment or medical care.
Public services, including transport, cannot be denied to PLHIV.
No discrimination in housing, insurance, or access to public places.
Confidentiality and Disclosure:
HIV test results must be kept confidential.
Disclosure of a person’s HIV status is permitted only with informed consent, or under limited circumstances for public health purposes.
Breach of confidentiality is punishable.
Mandatory Counseling and Testing:
Voluntary HIV testing and counseling are encouraged.
Testing must be done with informed consent, except in certain cases mandated by the law.
Pre-test and post-test counseling is mandatory.
HIV Surveillance and Control Measures:
Government authorities are empowered to conduct surveillance for prevention and control.
Procedures for testing in specific circumstances like blood transfusion and organ transplantation are provided.
Preventive measures for vulnerable groups and high-risk populations.
Grievance Redressal and Legal Recourse:
The Act provides for a complaints mechanism through appropriate authorities.
Offences under the Act, including discrimination and breach of confidentiality, are punishable with fines and imprisonment.
Special courts or authorities may be constituted for speedy disposal of cases.
Responsibilities of the Government:
To provide free access to antiretroviral therapy (ART).
To undertake awareness campaigns.
To establish prevention and control programs in partnership with civil society.
HIV and Marriage:
The Act does not explicitly prohibit marriage of PLHIV.
However, it mandates non-discrimination and confidentiality in such social contexts.
Significance of the Act:
Protects Fundamental Rights: Upholds right to equality, dignity, and non-discrimination for PLHIV.
Reduces Stigma and Discrimination: By criminalizing discriminatory acts, it promotes social acceptance.
Promotes Public Health: Encourages voluntary testing and counseling to prevent spread.
Empowers Affected Individuals: Provides legal avenues for redress against violations.
Aligns with International Commitments: Supports India’s commitments to global HIV/AIDS targets.
Case Law Related to The HIV/AIDS (Prevention and Control) Act, 2017
As this Act is relatively recent, specific case law interpreting the Act is still emerging. However, courts in India have passed important judgments related to HIV/AIDS rights and discrimination which support the principles embodied in the Act:
1. National Legal Services Authority (NALSA) vs. Union of India (2014)
Context: This landmark judgment recognized transgender persons as a ‘third gender’ and emphasized non-discrimination, which is pertinent for HIV/AIDS affected transgender persons.
Judgment: The Supreme Court held that fundamental rights under Articles 14, 15, 19, and 21 include protection from discrimination based on gender identity or HIV status.
This judgment supports the anti-discrimination provisions in the HIV/AIDS Act.
2. Dr. Sushil K. Chhabria vs. Union of India (2016)
Context: The petitioner challenged the refusal of employment based on HIV status.
Judgment: The Bombay High Court held that discrimination against PLHIV in employment is unconstitutional and violative of Article 14 (Equality) and Article 21 (Right to Life).
This aligns with Section 3 of the Act that prohibits discrimination in employment.
3. Suresh Kumar Koushal vs. Naz Foundation (2013)
Context: This controversial Supreme Court ruling upheld Section 377 (criminalizing consensual homosexual acts) but also discussed the stigma associated with HIV/AIDS.
Judgment: While it did not directly address the HIV/AIDS Act, it highlighted the need to combat stigma and protect rights of vulnerable groups.
The decision was widely criticized and eventually overruled by Navtej Singh Johar vs. Union of India (2018), which also positively impacts HIV/AIDS rights.
4. R.D. Upadhyay vs. State of Andhra Pradesh (2006)
Context: Petition sought directions to provide free and confidential HIV testing and treatment.
Judgment: The Supreme Court emphasized the right to health and dignity for PLHIV, which is reinforced by the Act’s provisions on free access to treatment.
Challenges and Issues:
Implementation Gaps: Enforcement of anti-discrimination provisions still faces social and institutional resistance.
Awareness: Lack of awareness about rights under the Act among PLHIV and employers.
Stigma: Deep-rooted stigma in society remains a challenge despite legal protections.
Healthcare Accessibility: Uneven access to ART and healthcare services across regions.
Privacy Concerns: Ensuring confidentiality in all settings remains difficult.
Summary:
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 is a comprehensive law that protects the rights of people living with HIV/AIDS, prohibits discrimination, ensures confidentiality, and promotes prevention and control measures. It is a progressive legislation that balances public health imperatives with individual rights, aiming to reduce stigma and promote social inclusion. Though specific case law under the Act is still developing, related judgments affirm the constitutional basis for its protections.
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