The HIV Act – better late than never

Vivek Divan

DOI: 10.20529/IJME.2018.002


Abstract

Although over 15 years in the making, the HIV legislation has recently been passed in India. This Act is unique in many respects, and hopefully a precursor to broader health sector legislation. The process of law making in this instance included a robust consultative process with civil society and other stakeholders involved with HIV. Some of the unique aspects of the Act, as it was eventually passed, include an anti-discrimination provision to cover violations by the private sector, and concrete provisions to ensure informed consent while seeking HIV-related testing and treatment, and confidentiality of HIV status. However, the law fails to recognise the enhanced vulnerability to HIV that some people – sex workers, transgender people, men who have sex with men, and people who use drugs – face, which should have been addressed by extending anti-discrimination guarantees to these communities, thereby providing a legal tool to access health, employment, educational, and other sectors; while also serving public health imperatives to encourage marginalised people towards health-seeking behaviour without fear of stigma and mistreatment. Yet, at least the legislation does protect these criminalised communities from punishment when they access or are provided HIV-related services and commodities, which could otherwise be tantamount to a crime. Another drawback of the law is the diluted obligation of the State to provide antiretroviral treatment to those in need. The legislation also provides options to redress grievances, which are localised, less formal and intimidating, and more accessible than courts, thereby recognising that implementation and actualisation of rights is critical to the success of the law, and efforts to control HIV.

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