Law to check bias against HIV/AIDS patients kicks in
The centre’s move is expected to strengthen the rights of the LGBTQ community
New Delhi: The ministry of health and family welfare on Tuesday announced the enforcement of the crucial Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency (AIDS) Syndrome (Prevention and Control) Act, 2017.
The move, which comes a few days after the Supreme Court scrapped a provision of section 377 of the Indian Penal Code (IPC) that criminalizes homosexuality, is expected to strengthen the rights of lesbian, gay, bisexual, transgender and queer (LGBTQ+) community as it constitutes a significant chunk of HIV and AIDS inflicted population in India.
The ministry of health and family welfare enforced the Act through a gazette notification issued on Monday. The Act, which received Presidential assent on 20 April 2017, prohibits discrimination against persons with HIV and AIDS, provides for informed consent and confidentiality with regard to their treatment, and places obligations on establishments to safeguard their rights. It also aims to prevent and control the spread of HIV and AIDS, and creates mechanisms for redressing their complaints.
According to the law, “No person shall discriminate against the protected person on any ground such as the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public, whether or not for a fee, including shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads, burial grounds or funeral ceremonies and places of public resort.”
According to the provisions of the Act, no HIV test, medical treatment or research will be conducted on a person without his/her informed consent and no person shall be compelled to disclose his HIV status for obtaining employment or services, except with his informed consent, and if required by a court order.
The legislation also safeguards the property rights of HIV positive people and every HIV infected or affected person below the age of 18 years will have the right to reside in a shared household and enjoy the facilities of the household. The law also prohibits any individual from publishing information or advocating feelings of hatred against HIV-positive persons and those living with them.
Violation of the Act by publication of information about people living with HIV (PLHIV) or advocating hatred against them will attract imprisonment ranging from three months to two years or a maximum fine of ₹1 lakh or both.
“We have notified the HIV and AIDS Act and it will have a major impact on LGBTQ community. We have been focusing on preventing HIV and AIDS in this community in our programmes under National AIDS Control Organization (Naco). They (LGBTQ) are very vulnerable to HIV and AIDS because of their risky sexual behaviours,” said Alok Saxena, joint secretary in the Union health ministry.
According to UNAIDS, in 2016, India had 80,000 new HIV infections and 62,000 AIDS-related deaths. There were 2.1 milluon people living with HIV in 2016 of whom only 49% were accessing antiretroviral therapy. The UNAIDS data also shows that gay men and other men who have sex with men had an HIV prevalence of 4.3%, while HIV prevalence among transgender people was 7.2%.
“With the Supreme Court striking down section 377 and the HIV and AIDS Act also coming in force, the social stigma on the LGBTQ community will gradually go away. They will have more rights and we expect more people will come forward for medical treatment with ease,” said Saxena.
There are no official demographics for the LGBTQ+ population in India, but the government of India submitted figures to the Supreme Court in 2012, according to which there were about 2.5 million gay people in the country. These figures are based on self declarations to the ministry of health. Officials claim that the number may be higher as many people may not have disclosed such information out of fear of discrimination.
The health ministry was under pressure from various sections of society to enforce the HIV and AIDS Act. The Delhi high court also pulled up the centre over not notifying the Act despite the statute receiving Presidential assent in April 2017. Hearing a PIL that sought immediate notification of the legislation, a bench of Chief Justice Rajendra Menon and Justice C. Hari Shankar on 13 August had asked the Union health ministry, “You make a law and are not notifying it. Why?”
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