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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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 2003 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.
Apart from the courts, the HIV/AIDS Act provides for two additional sources of legal redress: a complaints officer at the institutional level and an ombudsman at the regional level.
The first part of this article reviews 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.
Forums of legal redress
Apart from the courts, the HIV/AIDS Act provides for two additional sources of legal redress: a complaints officer at the institutional level and an ombudsman at the regional level.
In addition to right to information (RTI) applications, which can be filed with public authorities such as the ombudsman, monitoring and evaluation of such forums is facilitated by Section 28 of the law which requires the regional ombudsman to send bi-annual reports to the concerned state government on the number and nature of complaints received and action taken on each complaint.
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Such reports are also mandated to be uploaded on the website of each ombudsman. It is also mandated that a copy of such reports be forwarded to the Union government.
A review of the infrastructural mandate of the law undertaken by the Centre for Health Equity, Law and Policy (C-HELP) suggests that 28 states and Union territories have appointed ombudsmen at the regional level and eight do not report any progress on this front as of 2023.
Of the 28 states and Union territories that have appointed ombudsmen, a vast majority have rules that provide for the exclusive eligibility of chief medical officers (CMO) or officials from within the local health and family welfare departments for appointment as ombudsmen.
Only three states, Karnataka, Manipur and Nagaland, allow the appointment of public health experts, activists, retired judges and academic professionals as ombudsmen. The broader representation of independent stakeholders provides a fairer opportunity for monitoring the implementation of the law by concerned parties.
Only three states, Karnataka, Manipur and Nagaland, allow the appointment of public health experts, activists, retired judges and academic professionals as ombudsmen.
Similarly, as per Rule 12 of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Rules, 2018, complaints officers at every establishment (including in the private sector) are mandated to bi-annually report the nature and number of complaints received and action taken to the Union government as well as publish the same on its website.
The complaints officers must submit anonymised records to perform the reporting obligation in order to protect the confidentiality of the parties. Hence, the private sector’s compliance with the mandate to appoint the complaints officers must be monitored by seeking such data from the Union government through right-to-information applications.
Court interventions
Another source of monitoring the implementation of the statute is how courts have interpreted the law and granted relief to aggrieved parties. 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.
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. A brief discussion of some of these Orders and gaps in judicial intervention are highlighted here.
Implementation
Despite receiving presidential assent on April 20, 2017, the HIV/AIDS Act was not brought into force by the government until September 10, 2018. The notification of the law occurred in the backdrop of a petition filed before the Delhi High Court (Shebani Rose Verma versus Ministry of Health and Family Welfare) in August 2018, which sought a response from the Union Ministry of Health and Family Welfare on the status of the law.
Sections 13 and 14 of the HIV/AIDS Act mandate Union and state governments to provide access to HIV/AIDS-related care, support and treatment.
The undue delay in notification of the law is representative of a broader lack of political will to ensure effective implementation of the law, as is clear from other Orders discussed here.
In Girish versus Union of India, the Delhi High Court adjudicated a matter concerning homeless and migrant persons living with HIV which raised concerns relating to employment assistance, housing and shelter, food security, general healthcare services and hospice care for terminally ill persons.
The Union Ministry of Urban Development and Poverty Alleviation responded that it operates the Jawaharlal Nehru National Urban Renewal Mission (JNURM) scheme whereby shelters are allotted for homeless people, however, the ministry did not clarify whether such shelters adequately address the needs of persons living with HIV, such as linkages with antiretroviral therapy (ART) centres which disburse medicines.
Further, the government of the National Capital Territory (NCT) of Delhi vaguely stated that it has undertaken all measures to protect the rights of persons living with HIV as per law, without detailing the specifics in the context of the issues raised before the court.
The court only directed the government to ensure access to food security for persons living with HIV who are living below the poverty line (BPL), which is restrictive as access to nutritious food is essential for all persons living with HIV irrespective of economic status to complement the efficacy of the treatment.
Section 31 of the HIV/AIDS Act provides that persons in the care and custody of the government have the right to HIV/AIDS-related services.
The BPL criteria is arbitrary since Section 15 of the law makes no distinction on the basis of economic status for framing welfare schemes for persons living with HIV.
Ultimately, the court ignored prayers relating to housing and shelter, hospice care and employment assistance, which were crucial to providing relief for the homeless and migrant persons living with HIV who approached the court.
A matter before the Patna High Court in Kanchan Devi versus Union of India, dealt with demands for the appointment of MBBS physicians and nurses to local ART centres, ensuring availability of CD4 kits, ART and opportunistic infection medicines for children and adults and sought appointment of a committee to monitor the functioning of ART centres and implementation of the law in Bihar.
The petition invoked Sections 13 and 14 of the HIV/AIDS Act, which mandate Union and state governments to provide access to HIV/AIDS-related care, support and treatment.
The court completely abdicated its duty of safeguarding the right to health under Article 21 of the Constitution and suggested the petitioner submit a representation to the state government for consideration of the concerns within four weeks.
Confidentiality
In Ramakrishna Mane & Anr. versus XYZ, where a technical employee with the South Western Railways sought sick leave and a recuperation certificate on account of HIV-related health concerns, the employer’s medical officers resorted to issuance of a written assessment of his unfitness to perform the job under Section 3(a)(i) of the Act.
The written assessment was thereafter forwarded to the employer in an unsealed document, which subsequently led to a memo for alternative employment. Copies of the memo were displayed publicly at the workplace.
The aggrieved person filed a complaint before a magistrate court for violation of Section 3 and Section 4 (prohibition of hate speech). In a quashing petition before the Karnataka High Court on behalf of the employer and medical officers, the court arrived at a prima facie finding that the parties violated Section 8(1)(ii) (disclosure of HIV status) of the law and therefore dismissed the petition.
In 2022, ART centres in various states including Maharashtra, Andhra Pradesh, NCT of Delhi, Gujarat, Manipur, Rajasthan and Bihar reported stockout of ART drugs for a large part of the year.
The high court further 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. This case suggests that the appropriate application of law with respect to assessing the functional fitness of employees living with HIV and non-discrimination in the public sector remains a concern.
Access to treatment
During Covid, groups of persons living with HIV approached courts to demand access to HIV-related services as several ART centres in certain regions of India reported stock-outs of medicines.
In ABC versus Project Director, Bihar-based groups of persons living with HIV approached the Patna High Court with demands relating to the availability of a month’s dosage of ART medicines and home delivery due to the pandemic-related lockdown.
The petition also sought the availability of a centre of excellence (CoE) for access to third-line treatment, so resident persons living with HIV do not have to travel to the CoE in Varanasi for the same.
The court relied on the right to health as articulated under Article 21 and Section 13 of the HIV/AIDS Act and directed the government to take action on the petitioners’ demands within a time-bound manner, especially considering persons living with HIV were at risk of Covid-related comorbidities.
National AIDS Control Organisation (NACO) and Bihar State AIDS Control Society (BSCAS) responded that while the first- and second-line ART medicines are available in adequate quantities, they are taking steps to equip the central ART centre in Patna with telemedicine facilities to provide an online state AIDS clinical expert panel (e-SACEP) to facilitate access to third-line ART medicines.
NACO submitted an undertaking that it will consider establishing a CoE in Bihar in consultation with the state authorities if the number of patients who need access to third-line treatment increases.
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.
In Vyjayanti Vasanta Mogli versus State of Telangana, the Telangana High Court has passed a series of positive Orders on a plea of the transgender community seeking access to HIV-related healthcare services, food security, pension and other social security to mitigate the impact of Covid and the lockdowns.
In 2022, ART centres in various states including Maharashtra, Andhra Pradesh, NCT of Delhi, Gujarat, Manipur, Rajasthan and Bihar reported stockout of ART drugs for a large part of the year.
In this context, in Network of People Living with HIV/AIDS versus Union of India groups of persons living with HIV approached the Supreme Court, seeking directions to ensure that procurement of ART drugs is completed annually in a timely manner, and a committee comprising government representatives and members of groups of persons living with HIV be set up for regular monitoring of procurement of antiretroviral drug optimization (ARVs) and diagnostics for HIV/AIDS treatment.
Harm reduction
In Suo Moto versus State of Tripura, the High Court of Tripura, on taking cognisance of news reports, instituted a public interest litigation (PIL) suo moto to address the healthcare needs of persons living with HIV in prisons.
The court directed the Tripura State AIDS Control Society (TSACS) to undertake a survey of persons living with HIV in prisons across the state. Upon completion of the survey, it emerged that a large proportion of persons living with HIV in prison were injecting drug users (IDUs).
The survey also disclosed that while the persons living with HIV in prisons were able to access ART medicines from the nearest ART centre in government hospitals and the respective jails are taking “safety measures for prevention of transmission”, any specifics with respect to prevention measures had not been disclosed.
The court finally directed the TSACS and jail authorities to set up de-addiction centres for IDUs inside prisons. The respondents were directed to seek employment opportunities for prisoners who are IDUs at de-addiction centres upon their release.
It is notable that Section 31 of the HIV/AIDS Act provides that persons in the care and custody of the government have the right to HIV/AIDS-related services.
Moreover, Section 22 of the Act provides that measures adopted for harm reduction— such as drug substitution therapy and provision of comprehensive injection tools— are free from any civil or criminal liability under the law.
Given the prevalence of IDUs in prison, it is an open question whether the TSACS is making available harm reduction services in such settings.
An issue that often plagues community-based organisations (CBOs) that partner with NACO and its state-level bodies to conduct targeted intervention programmes for the delivery of harm reduction services is undue delay in payment of financial support, which impedes uninterrupted delivery of services.
The undue delay in notification of the law is representative of a broader lack of political will to ensure effective implementation of the law.
In such a context, an Uttarakhand-based CBO that was contracted by the Uttarakhand State AIDS Control Society (USACS) to undertake targeted intervention programmes for the year 2017–18 approached the high court for non-renewal of contract in Lok Chetna Manch versus Union of India.
The CBO contended that the USACS had not awarded the contract for 2018–19 to any CBO; therefore, despite non-renewal of its contract, it had continued to undertake work on the implementation of targeted interventions but was not allocated a budget by the USACS for the same.
The CBO sought payment for services rendered and re-appointment by highlighting the statutory duty of state governments in the prevention and control of HIV/AIDS as per Section 22 of the HIV/AIDS Act.
The court took cognisance of the law and directed the CBO to submit a representation to the USACS, to be decided within six weeks.
Although the provision on harm reduction is framed as a negative right under the HIV/AIDS Act, i.e., freedom from civil or criminal liability, the Supreme Court has interpreted the issue of access to harm reduction services as a concrete representation of entitlements of vulnerable groups arising from guarantees of dignity, autonomy, freedom from ill-treatment and the right to the highest attainable standard of physical and mental health without regard to sexuality or legal status under Article 21 read with the health-related obligations of the government codified in the Directive Principle of State Policy in Part IV of the Constitution in Navtej Singh Johar versus Union of India.
In Buddhadev Karmaskar versus State of West Bengal, the court clarified that the use of condoms and other measures for the health and safety of sex workers must not be viewed as evidence of the commission of an offence, especially as voluntary sex work is not unlawful under Immoral Trafficking (Prevention) Act, 1956.
Ombudsman
In Network of Nagaland Drugs and AIDS Organization & Network of Naga People Living with HIV versus State of Nagaland, a Nagaland-based group of persons living with HIV approached the Gauhati High Court to seek the appointment of an ombudsman as per Section 23 of the HIV/AIDS Act.
The government had appointed an officer from the Health and Family Welfare Department as the ombudsman, however, such a process violated the state-level rules, which required the ombudsman to be qualified as a retired district or sessions judge, or a person with at least ten years of experience in public health or health delivery systems, or a healthcare provider with at least ten years of experience, or an NGO worker with similar qualifications.
The court directed the government to appoint an ombudsman afresh in compliance with the state-level rules under the Act within 45 days.
In Sabhajeet Yadav versus State of Uttar Pradesh, a matter of HIV-related discrimination at a private workplace, the aggrieved employee was served a show-cause notice for purportedly remaining absent from work without authorisation.
The employer issued a termination Order, despite the employee having submitted records relating to his HIV-related health concerns as an explanation for his absence.
On taking cognisance of Chapter X (Appointment of Ombudsman) of the HIV/AIDS Act, the Allahabad High Court directed the State Legal Services Authority to assist the employee in instituting a complaint with the local ombudsman to seek relief from discrimination at his workplace as well as compensation.
