The HIV/AIDS epidemic and its widespread prevalence, especially in developing and underdeveloped countries, has for decades shaped public health agendas across the world. It is not surprising then that the United Nations considered “combating HIV/AIDS” as one of its eight Millennium Development Goals (“MDG”). The MDGs received significant impetus with support from governments and international institutions until their culmination in 2015. Global initiative to expand the scope of MDGs with new time-bound goals and targets galvanized the framing of a new worldwide agenda in the form of the United Nations Sustainable Development Goals (“SDG”) in September 2015.
The focus of this article is on India’s recent efforts in tackling the HIV/AIDS epidemic domestically. Can the HIV and AIDS Bill 2014 help India achieve its UN Sustainable Development Goals targets?
The Battle against HIV/AIDS so far
Before we examine the salient features of the Bill, it would be useful to look at some data, both domestic and international, on the current status of the HIV/AIDS epidemic. Globally an estimated 35 million people were still living with HIV in 2013; but new HIV infections came down by almost 40% between 2000 and 2013. By June 2014, 13.6 million people living with HIV were receiving antiretroviral therapy – the standard treatment for HIV/AIDS infections – globally.
The Indian HIV/AIDS agenda is set and monitored by the National Aids Control Organization (“NACO”) under the aegis of the Union Ministry of Health and Family Welfare. The NACO, in its Annual Report for 2014-15 released in August 2015, states that while the prevalence of HIV/AIDS in India continues to be on the decline, there are approximately 2.1 million people (in 2011) who are still afflicted by the epidemic.
A majority of the governmental initiatives to battle HIV/AIDS in India are implemented through the National AIDS Control Programme (“NACP”), which is currently in its fourth phase i.e. valid from 2012-2017. Evidently, the targets under the NACP mirror the targets set by the MDGs, thus highlighting the importance of the MDGs in the India’s public health agenda.
On the adoption of the SDGs in September 2015, the global community set itself the ambitious target of completely wiping out HIV/AIDS by the year 2030. The primary goal under the SDG agenda is to “ensure healthy lives and promote well-being for all at all ages.”
The HIV and AIDS Bill, 2014: Salient Features
In this background, to strengthen the fight against HIV/AIDS, the latest initiative of the Ministry of Health is to establish a rights- and entitlements-based system to safeguard the interests of persons living with the epidemic in India. The Bill introduced by the Ministry provides for the “prevention and control of the spread of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and for the protection of human rights of persons affected by the said virus and syndrome and for matters connected therewith or incidental thereto.”
The Bill further prohibits discrimination against persons with HIV/AIDS, provides for informed consent and confidentiality with regard to their treatment, places obligations on establishments to safeguard their rights, and creates mechanisms for redressing their complaints, among other things. The Bill also seeks to protect the rights of healthcare providers and other persons in relation to HIV/AIDS and also recognizes the necessity for effective care, support and treatment of persons suffering from HIV/AIDS.
The Bill therefore seeks to adopt a human rights centric approach to HIV/AIDS. According to the UN Office of the High Commissioner for Human Rights, a human rights approach to HIV/AIDS is important because “those people who are HIV positive may deal with their status more effectively, by seeking and receiving treatment and psychosocial support, and by taking measures to prevent transmission to others, thus reducing the impact of HIV on themselves and on others in society.”
While a detailed summary of the Bill would be unsuitable for the purposes of this article owing to the broad scope of the Bill, some of the salient features of the Bill are as follows:
1. Prohibition of discrimination against “protected persons”:
The Bill bestows rights and entitlements on a class of protected persons comprising not just persons who are HIV positive but also their persons who have in the past or currently ordinarily live, reside, or cohabit with such HIV positive persons. The Bill prohibits certain acts of discrimination against protected persons including any denial, termination, discontinuation or unfair treatment with regard to access to employment, admission to educational establishments, health care services, residing or renting property, standing for public or private office, and provision of insurance (unless based on actuarial studies). The Bill also prohibits the requirement for HIV testing as a pre-requisite for obtaining employment or accessing healthcare or education.
2. Requirement of informed consent:
HIV tests on any person and medical treatment, interventions or research on any person can only be performed with such persons’ informed consent.
3. Protection of HIV status of persons:
The Bill prescribes certain situations in which the HIV status of a person can be disclosed and in what manner data and statistics relating to HIV statuses of persons may be utilized. Establishments where records of protected persons’ HIV related data is maintained are obligated to maintain confidentiality of the same in accordance with data protection guidelines.
4. Shared responsibility of central and state governments:
The obligation to prevent the spreading of, treatment of, ensuring access to welfare schemes for, and dissemination of information related to HIV/AIDS lies is equally that of the central and state governments.
5. Redressal of grievances and mechanism of enforcement:
The Bill creates the office of an Ombudsman to enquire into and pass orders for violations of the provisions of the Bill by healthcare providers. The Bill, among other things, also provides for penalties for contravention of provisions of the Bill, for failure to comply with orders of the Ombudsman, for breach of confidentiality in legal proceedings.
After being tabled, the Bill was referred to the Standing Committee on Health and Family Welfare. Some of the major recommendations of the Committee on the Bill are that the Ombudsman (an official who investigates complaints against maladministration) must be empowered to entertain and decide complaints of discrimination in employment and education as well; and that all HIV positive persons must be entitled to insurance cover without any discrimination.
Challenges and the Way Forward
The Bill is comprehensive in its scope and outlooks and aims to be another rights-based legislation in a long line of such laws passed earlier by the Parliament. One major drawback of the Bill is the lack of legal recognition and protection to persons considered “high-risk”, i.e. men-who-have-sex-with-men as also other persons who identify as lesbian, gay, bisexual or transgender. It is a well-recognized fact that lack of recognition of sexual orientation and associated life choices is also one of the primary reasons people feel stigmatized and remain “underground” and out of the reach of necessary healthcare services.
Further, the Bill is one of its kind in that it imposes restrictions on private establishments by creating penalties for discrimination of a whole host of activities. Legislating for rights and entitlements is certainly an effective method of ensuring that a particular social evil, in this case the HIV/AIDS epidemic, can be tackled with the full force of the law. The effect being that instead of policies and programmes, the governmental agenda can be strengthened by the backbone this Bill will provide and new measures can be undertaken on a war-footing. To that end, India may well be on its way to achieve the SDG 2030 target of completely eliminating HIV/AIDS similar to the fight against Polio.
What remains to be seen is whether this Bill will be passed by the Parliament and become law of the land – several other Bills of the Ministry of Health and Family Welfare have been pending for years in the Parliament, for e.g. Mental Health Care Bill, Drugs & Cosmetics Bill, among others. Notably, the Central Government’s commitment to ensure “Health for All” is ubiquitous, but not as ubiquitous as their commitment to increase India’s Ease of Doing Business Rankings. One can only hope against hope that the public health agenda in India will receive the same attention, if not less.