Draft Law on HIV

The Lawyers Collective HIV/AIDS Unit (LCHAU) was requested by Shri. Kapil Sibal, Member of Parliament and the National AIDS Control Organisation (NACO) to prepare a draft legislation on HIV/AIDS to be presented to the Parliament in April 2003. This initiative received commitment from the Indian government. LCHAU was very excited about this opportunity and agreed on two conditions that a) thorough research on national and international laws and policies to precede drafting of the proposed law and b) involvement of all stakeholders through consultations. LCHAU undertook it with a great sense of responsibility towards the civil society in ensuring that its concerns are reflected in the Law.

The last two decades of HIV/AIDS programming has witnessed disruptions in efforts to prevent and control HIV among core groups. There has been rampant discrimination against PLHAs in health, employment, education and families. The existing legal remedies have been ineffective and the existing law limits access to life saving drugs for people infected with HIV.

Initiative

We commenced on this task by undertaking a comprehensive examination of legal developments around HIV/AIDS in other countries in order to contextualise the Indian experience within the global picture of the pandemic and borrow from other legislative experiences to create the basis for the draft legislation for India. This work has led us to preparing Background Abstract Papers on the legal, ethical and human rights issues that HIV/AIDS has raised over the course of the epidemic.

Protecting and promoting the rights of people living with HIV/AIDS (PLHAs), as well as those affected by the epidemic and those most vulnerable to it, is central to creating an environment whereby stigma, violence and inequity is reduced, if not eradicated. It has been observed and established that the creation of a non-discriminatory environment based on the principles of human rights is the best public health strategy in controlling the spread of HIV/AIDS. Thus the goal for the process we undertook was to create a comprehensive law which protects the rights of PLHAs as well as has the scope to provide rights and protections for other marginalized groups.

We recognize that any legislative measure that attempts to address the prevention of HIV infection and mitigation of impact of the epidemic must be informed by the experiences of people living with and working in the field of HIV/AIDS.

Consultations

LCHAU conducted nationwide consultations on the draft legislation on HIV/AIDS by involving and learning from representatives of the various sectors that are impacted by the epidemic. The consultation process, which took place, entailed different processes in order to be able to exchange views with the widest spectrum of individuals and institutions as feasible. The consultation feedback that LCHAU received through various processes held at national and state level, was then filtered and incorporated in its Draft Legislation.

The consultation processes undertaken were: -

1. National Consultations: on PLHAs and on representatives from vulnerable communities [MSM, Sex Workers, Injecting Drug Users (IDU) etc]. It has been LCHAU's experience in the past that PLHAs and those from vulnerable communities were inhibited from expressing their views before representatives of the healthcare community and law enforcement machinery. For this reason, National Consultations were held separately for these communities although we did involve PLHAs and vulnerable communities as resource people for the Regional Consultations as well. The consultations were held with PLHAs, Marginalized populations, Healthcare workers, World of Work, Women's groups, NGOs, Children's groups and Lawyers, are as follows: -

• 6 - 7 September 2003 (PLHAs, Mumbai)
• 13 - 14 September 2003 (Marginalised populations (Sex workers, MSM, IDUs), Delhi)
• 22 - 23 November 2003(Healthcare Workers, Mumbai)
• 12 - 13 December 2003 (World of Work, Delhi)
• 17 - 18 April 2004 (Women's groups, Agra)
• 8 June 2004 (NGOs providing care, support & treatment, Delhi)
• 31 July - 1 August 2004 (Children's groups, Mumbai)
• 6 November 2004 (Lawyers, Mumbai)
• 21 November 2004 (Children, Vijaywada, Andhra Pradesh)

2. Regional Consultations: Focusing on individuals, institutions and other stakeholders in HIV/AIDS-related issues (NGOs working on HIV/AIDS as well as those working in areas related to HIV/AIDS e.g. women's NGOs, healthcare institutions and healthcare workers, trade unions, management, law enforcement, educational institutions, counsellors and other individuals and institutions).

Regional Consultations with SACS

• 28 - 29 February 2004 (MDACS, Mumbai);
• 13 - 14 March 2004 (KSAPS, Bangalore)
• 27 - 28 March 2004(WBSACS, Kolkatta)
• 5 - 6 June 2004 (Manipur SACS, Imphal)
• 5 - 6 July 2004 (DSACS, Delhi)
• 7 - 8 August 2004 (APSACS, Hyderabad)

2005 : After intense brain storming sessions and evaluating the current legal environment, LCHAU finalized the draft legislation on HIV/AIDS and submitted it to NACO in August 2005.

The key issues addressed in the HIV Bill are: -

Substantive provisions include: -

• Discrimination
• Disclosure
• Safe-Working Environment
• Social Security
• Informed Consent
• Access to Treatment
• Risk Reduction
• IEC
• Special Provisions
• State Obligations

Grievance Redressal: -

• Appointment of health Ombuds
• Institutional Obligations
• Special Procedures in Courts
• Penalties

Implementation: -

• HIV/AIDS Authorities: National, State and District

Status
The Final Draft [ See the attachments below ] Law is pending with the Government of India. It is likely to be tabled in Parliament in the Monsoon Session 2007.