On September 10, 2018, the Ministry of Health and Family Welfare notified "Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017' (Hereinafter called 'Act') with immediate effect1. The Act had already received Presidential assent in April 2017 and was notified after Hon'ble Delhi High Court's intervention seeking immediate notification to protect and secure the human rights of persons affected with HIV/Acquired Immune Deficiency Syndrome (AIDS).

India has the world's third largest population of people with HIV/AIDS after South Africa and Nigeria2. According to the prevalence estimates released by the National AIDS Control Organisation (NACO), India had around 2.14 million people living with HIV in 2017, which includes 0.22% of people in the 15-49 years age group in the country. India saw around 87,580 new HIV infections and 69,110 AIDS related deaths in 2017.

The Act seeks to prevent and control the spread of HIV and AIDS; strengthen existing program by bringing in legal accountability; and establish formal mechanisms for inquiring into complaints and redressing grievances.

Prohibition of discrimination

The Act prohibits discrimination against persons with HIV and AIDS. It lists various grounds on which discrimination against HIV positive persons and those living with them, is prohibited. These discrimination grounds include denial, termination, discontinuation or unfair treatment with regard to employment, educational establishments, health care services, standing for public or private office, residing or renting property and provision of insurance. It also prohibits the isolation of protected persons and requirement for HIV testing as pre-requisite for obtaining employment or accessing health care or education.

The Act prohibits hatred and physical violence

No person shall, by words, either spoken or written, publish, propagate, advocate or communicate by signs or by visible representation or otherwise, the feelings of hatred against HIV positive person or affected groups, or which may reasonably be construed to demonstrate an intention to propagate hatred or discrimination or physical violence.

Disclosure of HIV status

No person shall disclose or be compelled to disclose the HIV status or HIV-related information except with the informed consent for undertaking HIV tests, medical treatment and research; or by an order of the court that the disclosure of such information is necessary in the interest of justice.

The Act also describes the eligibility of a person between the age of 12 to 18 years, who has enough maturity for understanding and managing the affairs of his HIV or AIDS affected family, shall be competent to act as a guardian of another sibling below 18 years of age.

Informed consent not mandatory for conducting HIV tests in certain cases

Informed consent is not mandatory if : i) it is by an order of court that HIV testing of any person, as part of a medical examination or otherwise, is necessary for the determination of issues in the matter before it; ii) it is for testing of a donor donating human body/any parts prior to donation; iii) it is for epidemiological or surveillance purposes where the HIV test is anonymous and is not for the purpose of determining the HIV status of a person; or iv) if it is for screening purposes in any licensed blood bank.

However, no HIV test shall be conducted or performed by any testing or diagnostic centre or pathology laboratory or blood bank, unless such centre or laboratory or blood bank complies with the guidelines laid down for such test.

The role of Central Government and State Government

The Central Government or the State Government shall issue necessary guidelines including  the measures for providing, as far as possible, diagnostic facilities relating to HIV or AIDS, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS, and also:

  • shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS;
  • shall frame schemes to address the needs of all protected persons;
  • shall take appropriate steps to protect the property of children affected by HIV or AIDS;
  • shall formulate HIV and AIDS related information, education and communication programmes which are age-appropriate, gender-sensitive, non-stigmatising and non-discriminatory;
  • shall lay down guidelines for care, support and treatment of children infected with HIV or AIDS; and
  • shall take measures to counsel and provide information regarding the outcome of pregnancy and HIV-related treatment to the HIV infected women. No HIV positive woman, who is pregnant, shall be subjected to sterilization or abortion without obtaining her informed consent3.

The state government shall appoint one or more ombudsman to inquire into complaints related to the violation of the provisions of this Act and the provisions of health care services. 

Note: If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty, within two year from commencement of this Act.

Footnote

1 http://www.egazette.nic.in/WriteReadData/2018/189234.pdf

2 http://naco.gov.in/sites/default/files/HIV%20Estimations%202017%20Report.zip

3 http://naco.gov.in/sites/default/files/HIV%20AIDS%20Act.pdf

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