Five years of the HIV/AIDS Act, 2017: An assessment— Part 2

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 has been in force for more than five years. This is a critical examination of its implementation.

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Read Part 1 here.

LIKE most legislation, the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (HIV/AIDS Act) was not enacted out of the blue.

It was the result of years of civil society mobilisation of persons living with HIV, at-risk groups such as gay men, transgender persons, sex workers, drug users and other constituencies— starting from the drafting of the law in 2001 up to parliamentary advocacy for its passage in 2017.

The law has been in force for more than five years now since its notification in September 2018. That means enough time has passed to examine the impact of the law in terms of enforcement by the government, compliance by the private sector and agitation of concerns by affected groups.

The first part of this article reviewed the government's efforts to establish the additional forums for legal redress provided under the law and some of the ways in which how courts have applied the law and moulded relief.

In the second part, we will conclude the examination of the ways in which courts have applied the law and moulded relief, and also examine whether practices in the private sector have evolved in conformity with the law.

Court interventions

How courts have interpreted the law and granted relief to aggrieved parties is a great source of monitoring the implementation of the HIV/AIDS Act. A review of court Orders indicates that general implementation concerns, anti-discrimination, reasonable accommodation, confidentiality, access to treatment, harm reduction, special procedures for courts and appointment of ombudsmen have been the focus of litigation to date.

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HIV-related law and policy concerns are often litigated without invoking the provisions of the HIV/AIDS Act, which merits consideration in terms of training all stakeholders on the law. Here we continue the brief discussion of some of these Orders and gaps in judicial intervention which we started in Part 1.

Anti-discrimination and reasonable accommodation in employment matters

Since the enactment of the HIV/AIDS Act, anti-discrimination litigation has focussed largely on unfair treatment in employment conditions within the armed or para-military forces.

A Border Security Force (BSF) officer was placed in the lower medical category (LMC) on testing positive for HIV and subsequently withheld for promotion in Kavendra Singh Siddhu versus Union of India.

The 'lower' medical category is a condition under the Standing Order where personnel is considered temporarily unfit for service due to sick leaves or hospitalisation.

Although the LMC categorisation would arguably constitute a violation of the anti-discrimination mandate of Section 3 of the HIV/AIDS Act, this issue per se was not the subject matter of the litigation.

When the officer was issued a transfer Order to Assam, he approached the Delhi High Court to obtain a stay Order and applied for retirement under the Voluntary Retirement Scheme (VRS) in the interim. The officer submitted that lack of access to antiretroviral therapy (ART) medicines (the nearest ART centre was at least 10 km away) and the intensely humid conditions (75 percent humidity) would adversely impact his health if he relocated to Assam.

While the court granted a stay on the transfer Order, the BSF accepted the petitioner's application for VRS and the matter was resultantly closed.

Section 3 of the Act guarantees the right to reasonable accommodation for persons living with HIV who might be functionally unfit to perform the job. However, a review of the reported Orders in this matter indicates that the petitioner does not appear to have invoked provisions of the HIV/AIDS Act.

The Delhi High Court is also in the early stages of hearing another matter where a candidate was refused recruitment in the BSF on testing positive for HIV. This petition in ABC versus Border Security Force invokes the HIV/AIDS Act, Rights of Persons with Disabilities Act, 2016 and Article 21 to challenge the discrimination in recruitment for employment.

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In Union of India versus Siva Lakshmi, concerning the compassionate appointment for surviving family members of a deceased constable, the wife tested positive for HIV during the pre-employment medical check.

Interestingly, the medical officer recommended that the woman be offered a position in the administrative department. However, despite such a recommendation, she was declared unfit for any job during the training period and refused recruitment.

When the matter reached the Madras High Court, the government invoked the HIV/AIDS Act to defend its position by placing reliance on Section 3(a)(i) of the Act, which permits termination of employment as a last resort, only if the candidate is found to be unfit to perform the job or pose risk of transmission to coworkers by an independent medical practitioner and the employer has issued a written Order to give reasons for its failure in providing reasonable accommodation.

The court took a liberal view and directed the employer to reinstate the aggrieved woman by declaring that a compassionate appointment cannot be denied merely because she was unable to complete training as a constable, as such policy intends to provide financial assistance to the bereaved.

Although the court provided a positive outcome, it begs the question as to why the court did not place reliance on Section 3(a)(ii) of the law to direct the employer to provide reasonable accommodation as a right. This case again illustrates the necessity of training on assessing the functional fitness of candidates living with HIV during recruitment in the public sector.

The Allahabad High Court has issued a landmark Order in XYZ versus Union of India, which declares the automatic LMC categorisation of persons living with HIV to be unconstitutional within armed and paramilitary forces, after successive challenges to this policy in various cases did not yield positive outcomes.

A constable living with HIV, who served in the Central Reserve Police Force (CRPF) since 1993, had his promotion as head constable reversed on grounds of the 'Psychological, Hearing, Appendages, Physical capacity, Eyesight' (SHAPE-1) policy in 2013, which operates under Standing Order (2008) of the concerned CRPF regulations.

All asymptomatic cases of persons living with HIV, including the petitioner, were automatically rated as P-2, despite regularly taking ART drugs and reporting standard CD4 and viral load counts.

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The petitioner challenged the rationale for compulsory SHAPE-1 qualification as an eligibility condition for promotion, contending it to be discriminatory (Article 15) and bearing no rational nexus to the object sought to be achieved (Article 14).

The court observed that apart from HIV-related complications and ageing which might have contributed to a rating of P-2, the constable reported healthy ratings on other parameters.

The court declared that CRPF law and regulations per se do not sanction such discriminatory treatment of personnel living with HIV and declared that protection against HIV-related discrimination in employment is a fundamental right as per Articles 14, 16 and 21 and Section 47 (non-discrimination in government employment) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Ultimately, the court ordered CRPF to issue him a promotion and back wages since 2013.

While the case resulted in a positive outcome, it is an open question as to why neither the petitioner nor the court relied on the anti-discrimination mandate of Section 3 of the HIV/AIDS Act to arrive at the conclusion, which would have set a precedent on the purposive application of the law.

This suggests the need for judicial training on the HIV/AIDS Act for the development of a robust jurisprudence on rights-based concerns in this context.

In a separate area, in Thangjam Santa Singh @ Santa Khurai versus Union of India, the Supreme Court is in the early stages of hearing a petition which challenges the validity of the Guidelines for Blood Donor Selection and Blood Donor Referral, issued by the National AIDS Control Organisation (NACO) and the National Blood Transfusion Council (NBTC) in 2017, for violating Articles 14, 15 and 21 of the Constitution in so far as they impose a permanent ban on gay men, transgender persons and sex workers as eligible to donate blood.

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The Union government has contended that the exclusion is evidence-based as the said class of persons are at high risk of HIV and pleaded non-availability of diagnostic test kits that can screen blood samples during the window period and avert infection.

The reported Orders thus far indicate that the petitioner has not relied on the HIV/AIDS Act as a ground for challenge. Section 7, read with Section 46 of the Act, provides that the Union government is empowered to frame guidelines for compliance by testing centres, blood banks, diagnostic centres, etc.— which duty has been performed by the NACO and the NBTC.

As such guidelines are framed under the mandate of the law, it follows they would need to comply with the substantive law.

A textual reading of the law suggests the mandate of anti-discrimination is available only for persons living with HIV, as indicated by the definition of 'protected persons' in Section 2(s) read with the provision on anti-discrimination in Section 3.

However, the definition of discrimination under Section 2(d) includes the concept of 'indirect discrimination'. In Lt. Col. Nitisha & Ors. versus Union of India, the Supreme Court developed a theory of indirect discrimination to state that facially neutral policies, criteria or practices— in this case, HIV status— that disproportionately and adversely impact a class of persons (the high-risk group) would constitute a violation of Article 15.

The court added that such policies, criteria or practices are justifiable only if the government can demonstrate that the impugned act is the least restrictive measure and is directed towards accomplishing a legitimate aim. 

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Another matter of consideration here is the Union government's response on the non-availability of diagnostic kits that can screen blood samples from individuals belonging to a high-risk group during the window period.

The framework of the right to health as developed under Article 21 read with India's obligations under the International Covenant on Economic, Social and Cultural Rights (as elaborated in General Comment no. 14) provides that the inability of a government to provide goods, services and facilities must be differentiated from its unwillingness to provide the same.

In the case of the Union government's inability, the government has a duty to provide an explanation of its budgetary constraints in procuring such goods, services or facilities.

However, in the case of the Union government's unwillingness, the government is clearly in violation of the constitution as well as the convention and the court must mould relief accordingly.

These aspects merit the question of whether the impugned NACO-NBTC guidelines are consistent with the prohibition on indirect discrimination under the HIV/AIDS Act read with Article 15 in so far as they exclude gay men, transgender persons and sex workers for blood donation on the facially neutral ground of high risk of HIV.

Special procedures in court

In a series of matters across different courts and tribunals, the authorities have enforced special protections for persons living with HIV in facilitating access to justice.

For instance, in Aman Kumar versus State of Himachal Pradesh and Rajan versus State of Himachal Pradesh, bail matters involving accused persons living with HIV, the Himachal Pradesh High Court directed the trial court to take appropriate steps to complete the proceedings expeditiously in order to fulfil the mandate of Section 34(2) of the Act.

In K.S. versus Periyakaruppan & Ors., a partition suit by persons living with HIV, the Madras High Court directed the lower court to hear the matter expeditiously in light of Section 34(2) of the Act and transferred the matter to the party's preferred territorial jurisdiction based on the rationale that the Act requires courts to take "proactive measures to protect interests of persons living with HIV".

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In R.S. versus State of West Bengal, the Calcutta High Court directed the registry to anonymise the party in records on an application under Section 34(1)(a) of the Act, which sought the identity of the party to be suppressed and substituted with a pseudonym in court records for effective participation in proceedings.

In XYZ versus Railway Board, Central Administrative Tribunal, the Central Administrative Tribunal took cognisance of Section 34(1)(a-b) of the Act and allowed an application for suppression of identity, adopting a pseudonym and conducting the proceedings in-camera.

Discrimination in private establishments

The Centre for Health Equity, Law and Policy (C-HELP) has offered legal advise in two separate cases of employment discrimination on the basis of HIV status within private establishments in Maharashtra.

Both cases raised concerns with respect to fundamental aspects of the law, i.e., consent, confidentiality and discrimination.

Employers continue to mandate a pre-employment medical check-up as a condition of joining service, which is conducted through the services of an externally contracted medical consultant.

The trajectory of the cases is similar. At first, the medical consultants obtain a blood sample and perform an HIV test without seeking informed consent for this medical intervention from the candidates.

Subsequently, on testing positive, the medical consultants issue a report of the diagnosis to the employer, again without seeking informed consent of the candidate to communicate the same to the employer.

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Lastly, once the employers learn of the candidate's diagnosis, they either coerce the candidate to voluntarily resign, demote them to less public-facing positions or harass them with demonstrably false accusations of low performance in order to facially justify termination of services.

With C-HELP's assistance, when the aggrieved employees submitted complaints or representations detailing violations under the legal framework governing employees living with HIV at the workplace, one employee received compensation of ₹8.36 lakh whereas the other employee's demotion was reversed to restore him to a position of seniority.

Many persons living with HIV who face discrimination in employment are unable to pursue legal remedies due to a lack of support systems or economic resources.

Despite major advancements in medical science and legal protections for persons living with HIV in India, the outrageous conduct of the private sector harkens back to the 1990s when persons living with HIV lived in fear and precarity due to the unavailability of treatment and rampant exclusion from society.

The flagrant violations by the private sector, along with the gaps identified on review of the reported Orders, suggest that implementing authorities, judiciary, lawyers, private sector and communities need legal awareness training on the mandate of the HIV/AIDS Act, in particular, on the following aspects:

1. Organisational policies and service regulations that authorise pre-employment HIV tests must be amended to discard this practice as they are explicitly forbidden under Section 3(l) of the HIV/AIDS Act.
2. As HIV prevalence is about 6–13 times higher among gay men, hijra or transgender persons and sex workers compared to the national adult prevalence as per Sankalak: Status of National AIDS Response NACO, 2021, pre-employment HIV tests will disproportionately rob vulnerable communities of equal employment opportunities and perpetuate social and economic inequalities. Such acts would constitute indirect discrimination and the aggrieved person can claim damages for the same, as Article 15 is horizontally applicable to the private sector.
3. Absence from work for HIV-related health complications must not be treated as abandoning duty. The private sector has a legally binding responsibility to offer reasonable accommodation to persons living with HIV with special needs as per Section 3(a) of the HIV/AIDS Act.
4. The routine practice of nominated medical consultants disclosing the HIV status of candidates directly to the employer without seeking informed consent in writing results in a clear violation of doctor-patient confidentiality under Section 8(1) of the HIV/AIDS Act. The mandate of the medical consultant is to assess the functional fitness of the candidate, irrespective of HIV status.

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1. Health checks conducted as per the Food Safety and Standards Act, 2006 and its regulations in the hospitality sector must be conducted in a manner that is consistent with the HIV/AIDS Act, i.e., principles of consent, confidentiality and non-discrimination must govern existing laws and practices.
2. The HIV/AIDS Act covers the private sector by virtue of the definition of establishment under Section 2(f). Hence, workplaces in the private sector have a legally binding duty to appoint complaints officers to provide institutional grievance redress.
3. Although the government's obligations with respect to access to treatment, diagnostic facilities, etc. are qualified on the basis of budgetary constraints as provided under Section 14(1), the government has a bounden duty to provide a justification in case of inability to provide such goods, services and facilities under judicial review, as per its commitments under the ICESCR.
4. Harm reduction services for sex workers, drugs users, transgender persons and gay men are an integral component of the right to health under Art. 21. Sexuality or legal status must not restrict access to such preventive services.

In order to foster social change, the government must be mindful of these concerns and actively facilitate the implementation of the law by all concerned stakeholders.

Read Part 1 here.