By Kajal Bhardwaj
The law ministrys quibbles are holding up the HIV anti-discrimination bill.
In August 2006,an anti-discrimination bill for people affected with HIV,drafted through a joint government and civil society initiative,was submitted to the Indian government. Every year since then there have been reports that the HIV and AIDS (Prevention and Control) Bill will soon be tabled in Parliament. In reality,the health ministry and law ministry have been playing what can only be described as passing the parcel with the bill.
In 2008,the law ministry practically scuttled the bill,removing some of its most crucial provisions. Actions and representations by people living with HIV and by health groups appeared to mount a successful challenge to the law ministry. In the end of 2011,the health ministry reportedly stated that it was expecting a draft of the bill from the law ministry,but it objected to a provision in the bill which provided for access to free HIV treatment even though the government is already providing such treatment. The latest hurdle is yet another disagreement between the two ministries,with the law ministry demanding criminal sanctions for discrimination.
The HIV bill is a comprehensive legislative proposal to address the problem in India. In 1989,when Dominic DSouza was incarcerated under a public health legislation for testing positive for HIV,the position of the law on the HIV epidemic became instantly clear. Since then,people living with HIV and legal aid organisations have challenged such discrimination in various high courts. After the Bombay High Court judgment in the case of Mx versus Zy,which recognised the right to equality for government employees affected by HIV,several courts have passed similar orders. Some of these prohibit discrimination in police recruitment.
But these successes have come one judgment at a time. Though courts have been able to direct the government not to discriminate against people living with HIV,the same protection does not apply in the private sector. There have been repeated instances of children being discriminated against,in admission or attendance,in educational institutions.
The HIV bill specifically prohibits discrimination against people affected by the virus,in both the public and private sectors. It states that no person may be discriminated against in employment,education,healthcare,travel,insurance,residence or property based on their HIV-related status. This protection thus covers people living with HIV,their families as well as those who risk contracting HIV.
A law ministry official has reportedly opined that this prohibition on discrimination cannot work if there is no criminal penalty. In fact,the bill creates an innovative grievance redressal mechanism to address HIV-related discrimination. It provides for a health ombudsman to be appointed in every district. This ombudsman is to ensure immediate access to health services for people with HIV who are discriminated against or denied treatment in healthcare settings. It also provides for internal complaints mechanisms in institutions. The approach at the institutional level is first to counsel and sensitise employees. On repeated instances of discrimination,the bill directs that there be disciplinary action against the offender.
The bill also creates space for courts to rectify and prevent violations of it provisions. In cases of employment discrimination based on HIV,courts can order reinstatement,payment of the persons salary or of damages,making good on benefits lost due to discrimination. If a particular institution repeatedly violates the provisions of the bill,the courts may also order an audit of the institution to determine why. It may then pass orders to address the causes.
The bill also seeks to address the root causes of discrimination. Healthcare institutions will be bound to provide precautions and training for all their workers. It also stipulates that the rights of people living with HIV should form part of the governments information,education and communication programmes,which have so far been dominated by prevention and treatment messages.
Emphasising civil remedies instead of criminal ones in social protection legislation is neither new nor unusual. Anti-discrimination laws in several countries provide civil remedies and equip their enforcement institutions with powers to remedy an act of discrimination. These are similar to the powers granted to courts in the HIV bill. Closer home,the Sexual Harassment of Women at the Workplace (Prevention,Prohibition and Redressal) Act,2012,sets up institutional mechanisms to deal with complaints of harassment. Criminal penalties may be used only when employers do not comply with their obligations under the act.
The law ministry also seems to have overlooked the fact that the HIV bill does,in fact,recommend criminal penalties in some situations,such as when there is hate or discriminatory speech,or when the order of the health ombudsman is not complied with. By focusing on the lack of criminal penalties for discrimination,the law ministry,seems to have missed the wood for the trees.
For people living with HIV,this bill has been over a decade in the making. Having spanned the life of two Parliaments,it will be a great shame if this crucial piece of legislation has to wait for a third Parliament to see the light of day.
The writer is a Delhi based lawyer working on HIV,health and human rights