The HIV and AIDS Act: Discrimination and Consent

In one line

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 prohibits discrimination against a protected person on twelve listed heads, prohibits the propagation of hatred, and makes informed consent with pre-test and post-test counselling the condition of every HIV test.

Section 1: short title, extent and commencement

Section 1 gives the short title, extends the Act to the whole of India, and provides that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

The two dates should be quoted, because the interval is the sharpest single criticism of the Act's administration. It was assented to on 20 April 2017 and was not brought into force until 10 September 2018, nearly seventeen months later. A statute conferring an enforceable right on a group whose members are dying while it is not in force is a statute whose commencement date is itself a human rights question, and a candidate who names the gap has said something no recitation of sections can supply.

Section 2: the definitions that carry the Act

Three definitions do the work.

Protected person means a person who is HIV-positive, or who is ordinarily living, residing or cohabiting with a person who is HIV-positive, or who ordinarily lived, resided or cohabited with a person who was HIV-positive.

That definition is unusually wide and it is the first point to make about the Act. It protects the family and the household as well as the patient, and it protects them after the association has ended. The stigma this Act addresses attaches to the household, and the definition follows the stigma rather than the infection.

Reasonable accommodation means minor adjustments to a job or work that enable an HIV-positive person who is otherwise qualified to enjoy equal benefits or to perform the essential functions of the job.

Establishment means a body corporate, co-operative society, organisation, institution, or two or more persons jointly carrying on a systematic activity for twelve months or more, for consideration or otherwise, for the production, supply or distribution of goods or services.

The definition of establishment is what carries the Act into the private sector, and it is deliberately drawn to include activity carried on otherwise than for consideration.

Section 3: the prohibition of discrimination

No person shall discriminate against the protected person on any ground including any of the following. The words are "on any ground including", so the twelve heads are illustrative and not exhaustive.

(a) Denial of, or termination from, employment or occupation, unless in the case of termination the person is furnished with a written assessment of a qualified and independent healthcare provider that the person poses a significant risk of transmission in the workplace or is unfit for the duties, and a written statement by the employer stating the nature and extent of the administrative or financial hardship of not providing reasonable accommodation.