22 November, 2018
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Protection and Control) Act, 2017 (the Act) was enacted on September 10, 2018.
The Act was introduced since India is a signatory to the United Nations’ Declaration of Commitment on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome, 2001.
The Act provides for the prevention, control and protection of human rights of persons affected by the human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS).
Prior to the Act, India had a National Policy on HIV/AIDS in the context of the working world (National Policy).[1] However, the National Policy neither conferred any rights on persons affected by HIV nor did it impose any obligations on employers. Given the fact that till 2016[2], India had the third-largest HIV epidemic in the world and over 2.1 million people in India were living with HIV, an ineffective National Policy could not solve the problems of those infected by HIV in the country.
The National Policy was also inadequate since it focused only on the prevention of AIDS. The judiciary, however, while recognising the need for a legal framework that provides for both prevention and treatment, established that discrimination on the grounds of HIV is a violation of Article 14 (fundamental right to equality) of the Constitution of India.[3]
The Act aims to further the principles/objectives set out by the judicial precedents by encapsulating both the prevention of discrimination against HIV-infected persons and their treatment. The Act also aims to protect the human rights of such persons and appears to be a progressive development in India.
The Act aims to prevent discrimination against a ‘protected person’ who has been defined to mean (a) a person who is HIV-positive; or (b) a person who is living, or who has lived, with an HIV-positive person.
The Act prohibits discrimination and/ or unfair treatment of a ‘protected person’ in relation to, inter alia, the following: (a) employment or occupation; (b) healthcare services; (c) educational establishments or services; (d) other public services; (e) right to reside, purchase, rent or occupy property; (f) right to movement; (g) contesting /holding public or private office; (g) access to insurance; (h) access to a Government or private establishment (in whose care or custody the ‘protected person’ is); and (i) isolation or segregation of the ‘protected person’.[4]
The Act also prohibits the publication and/ or dissemination of information which may expose the ‘protected person’ to hatred, discrimination or physical violence.[5]
Further, the Act prohibits HIV testing as a pre-requisite for obtaining employment.[6] The Act has introduced the concept of informed consent, which must be obtained from a ‘protected person’ undergoing any HIV test or treatment.[7] Entities such as pathology laboratories, diagnostic centres and blood banks, also have to adhere to the guidelines laid down for conducting tests on HIV-affected persons.[8]
In addition to conferring the abovementioned rights on a ‘protected person’, the Act also imposes obligations on employers and establishments to achieve the objectives of the statute. For instance, every establishment engaged in healthcare services or where there is a significant risk of occupational exposure to HIV, is obligated to ensure a safe working environment by providing information and training regarding universal precautions and post-exposure preventive measures available to all persons who are working in the establishment and who may be occupationally exposed to HIV or AIDS.[9] Further, every establishment that maintains HIV-related records of a ‘protected person’ is obligated to adopt data-protection measures to ensure confidentiality of information.[10]
In addition to the above obligations, the statute provides for a two-way mechanism of grievance redressal. Every establishment consisting of 100 or more persons or healthcare establishments with 20 or more persons, in order to ensure compliance with the provisions of the statute, is required to appoint a Complaints Officer for redressal of grievances arising from violations of the statute in the establishment.[11] In addition to a Complaints Officer to be appointed by an establishment, the Act also empowers the State government to appoint an Ombudsman[12], who has the power to enquire into the violations of the provisions of the Act in relation to acts of discrimination.
While the statute seems to be a step in the positive direction, it suffers from certain gaps. For example, an employer can terminate the employment of a ‘protected person’ (a) by providing a copy of a written statement from a qualified healthcare provider stating that the ‘protected person’ poses a significant risk of transmission of the virus to other workers at the workplace, or is unfit to perform the duties required by the job[13] or (b) by submitting a written statement describing the extent of administrative or financial hardship for not providing the ‘protected person’ with reasonable accommodation.[14]
In the absence of any specific parameters/ yardstick as to what would constitute ‘administrative and financial hardship’, employers can exercise their discretion to terminate the employment of a ‘protected person’ by citing administrative or financial difficulty as a reason.
The Act does not specify what constitutes a qualified healthcare provider. In the absence of a definition of a qualified healthcare provider, or any detail of what action could be taken against a healthcare provider who provides any incorrect statement, the Act does not envisage any remedy available to an employee. Nor does the Act require employers to tell authorities when they are terminating employment for either of the reasons described above.
Despite the aforementioned deficiencies, the Act is a step in the right direction as it asks employers to ensure that their establishments are inclusive and respectful towards the uniqueness of every individual. The statute also imposes penalties on employers acting in contravention of the provisions of the Act[15] and, thereby, aims to serve as a deterrent mechanism against discriminatory practices adopted by employers against protected persons. The penalty for contravening the provisions of the Act includes imprisonment ranging from three months to a maximum of two years, and a fine of up to INR 100,000 (Rupees One Lakh) [US$ 1300].[16]
Additionally, both the Central and State governments are empowered to make rules by notification for carrying out the provisions of the Act. It is expected that these rules, when enacted, would provide clarifications for the shortcomings in the Act, as they currently exist. It can be anticipated that the rules will cover aspects relating to powers of the Ombudsman and lay down guidelines to be followed by pathology laboratories and diagnostic centres while undertaking tests or treatment of an HIV-infected person.
Since there has already been a considerable delay in enacting a law on the subject, the success of the legislation is largely dependent on the prompt introduction of the rules by the Central and/or State governments and effective implementation of the same. The Central and /or State governments are working to eradicate HIV / AIDS. However, till it is eradicated from India, the Act will at least help in protecting the interests of affected persons and safeguarding their fundamental rights.
For further information, please contact:
Manishi Pathak, Partner, Cyril Amarchand Mangaldas
manishi.pathak@cyrilshroff.com
[1] National Policy on HIV/AIDS and the World of Work, available at https://labour.gov.in/sites/default/files/NationalPolicyonHIVAIDS.pdf.
[2] UNAIDS, India, available at http://www.unaids.org/en/regionscountries/countries/india.
[3] X vs. Y, 1998 Supp (1) SCR 723.
[4] Section 3, the Act.
[5] Section 4, the Act.
[6] Section 3(l), the Act.
[7] Section 5, the Act.
[8] Section 7, the Act.
[9] Section 19, the Act.
[10] Section 11, the Act.
[11] Section 21, the Act.
[12] Section 23, the Act.
[13] Section 3(a)(i), the Act.
[14] Section 3(a)(ii), the Act.
[15] Section 37, the Act.
[16] Section 37, the Act.
