Obligations on Government and on Establishments

In one line

Sections 12 to 22 require a model HIV and AIDS policy for establishments, measures for prevention and for antiretroviral therapy, welfare schemes, protection of the property of affected children, information and education programmes, protection of women and children, a safe working environment with universal precautions and post-exposure prophylaxis, a Complaints Officer in every establishment, and immunity for risk reduction strategies.

Sections 12 to 14: policy and treatment

Section 12: the Central Government shall notify a model HIV and AIDS policy for establishments, in the manner prescribed.

Section 13: the Central Government and every State Government shall take all such measures as it deems necessary and expedient for the prevention of spread of HIV or AIDS, in accordance with the guidelines.

Section 14(1): those measures shall include the measures for providing, as far as possible, diagnostic facilities relating to HIV or AIDS, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS.

Section 14(2): the Central Government shall issue necessary guidelines in respect of protocols for diagnostic facilities, antiretroviral therapy and opportunistic infection management, which shall be applicable to all persons, and shall ensure their wide dissemination.

Section 14(1) is the most criticised provision in the Act, and the criticism is three words long: "as far as possible".

The argument against those words. Antiretroviral therapy is the difference between a manageable chronic condition and death. A statute that promises it as far as possible promises nothing that a court can enforce, and the qualification converts the central entitlement of the Act into a directive principle. Every other obligation in the Act is unqualified, which makes the qualification here conspicuous.

The argument for them. The Act binds every State Government, treatment capacity is unevenly distributed, and an unqualified duty would have been either unfunded or a reason for States to resist the Bill. The qualification bought agreement.

The reconciling point. Section 14(2)'s guidelines shall be applicable to all persons, without qualification, and section 13's duty to prevent is unqualified. So the Act qualifies the supply of treatment and not the standard of it, and a person denied treatment can complain to the Ombudsman under section 24, whose order under section 26 is not qualified at all.

Sections 15 to 18: welfare, property, education, women and children

Section 15: the Governments shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS, and shall frame schemes to address the needs of all protected persons.

Section 16(1): the Governments shall take appropriate steps to protect the property of children affected by HIV or AIDS.