Two months after the Cabinet approved the HIV Bill, the text of the much-awaited legislation was made available this week. The version of the Bill to be tabled in Parliament is a watered down, emasculated and weak form which has too many flaws; it is no game changer.
In the Bill, the proposed Section 14 talks of prevention measures that the Central or State governments may take, “as far as possible,” for the provision of Anti-Retroviral Therapy (ART) and Opportunistic Infection (OI) Management, against the spread of HIV. Not only does the amendment not address treatment it also goes on to provide drugs for both ART and OI ‘as far as possible’.
Danger of a resurgence
It has to be appreciated that before the advent of ART, HIV was a death sentence for People living with HIV (PLHIV). The Indian government has been providing free-of-cost antiretrovirals for PLHIVs since 2004. Today, first-line and second-line ART is available in the government programme free of cost. Soon, the third line of treatment may be required. India’s HIV community has legitimate apprehensions about access to life-saving medicines as up to now the government programme has been largely funded by the Global Fund to Fight AIDS, Tuberculosis and Malaria (GFATM). The fund is in danger of being discontinued from 2017.
The phrase “as far as possible” is a significant loophole in the Bill which would set the clock back to before the mid-1990s. Without the guarantee of treatment, HIV will once again become a death sentence for patients. As the global target moves towards ending AIDS, India will be in danger of seeing its resurgence.
Indian generic companies supply antiretrovirals to the developing world while the HIV community in the country is left stranded. The irony is unmissable.
Thus the provision in the proposed Section 14 has to be amended to provide for guaranteed treatment.
The expression “as far as possible” must be deleted, as the community of PLHIV is rightly demanding.
The other major flaw is the amendment that is sought to be made on the scope of the ombudsman’s jurisdiction, an innovation of civil society. The proposed Bill states that the ombudsman shall inquire into violations in the provision of health-care services. However, the government has proposed amendments to increase the scope of the ombudsman’s jurisdiction which mandates him to enquire into all violations of the provisions of the Bill including discrimination. This would be a disaster.
The law as drafted by civil society envisaged an ombudsman working at the district level who would attend to complaints on health issues relating to HIV. There are several cases involving health issues of PLHIVs not being attended to by health services especially in the private sector. Pregnant women living with HIV bear the brunt of discrimination in health services. The idea was that PLHIVs don’t have to go to court, which would not only be cumbersome but would also require the services of a lawyer. It would quick and efficient. An aggrieved PLHIV would go to court on violations of the law relating to health services only after going through the ombudsman.
The original drafts envisaged a full-time person working on the issue at the district level. Under the proposed Bill, the ombudsman is now to function at the State level. Moreover s/he can be an ordinary government servant.
Now that the ombudsman is neither a full-time officer nor trained in judicial matters and considering the types of issues that he would have to deal with — from informed consent to discrimination etc., coupled with the huge workload foisted on him — the proposed amendment would only result in the whole mechanism becoming unworkable. Thus the amendment as proposed by the government has to go.
Needle safety programme
Another crucial flaw deals with the needle safety programme. The government has proposed amendment to Clause 22 of the Bill, by deleting all references to needle and syringe exchange. This clause of the Bill was aimed to protect volunteers and patients from illegality— as providing sterile needles is considered a crime and PLHIV and health workers can be picked up for aiding and abetting the unlawful use of drugs.
Further, the Bill does not confer powers to civil courts in relation to employment. As per prevailing law, only a government or a public sector employee can seek employment or reinstatement if s/he is discriminated and not employed or illegally terminated. Thus, if the person is not employed in the entities which are “State”— as defined under the Industrial Disputes Act — s/he cannot seek employment or reinstatement if s/he has been discriminated. In such cases, a person can only go the civil court and claim damages.
The law as originally drafted provided for specific powers to the civil court including employment and reinstatement and compensation for loss of wages and damages. None of this is provided in the latest version currently waiting to be passed in Parliament.
All these need to be considered positively to make the HIV Bill a game changer in India.
Anand Grover is a Senior Advocate and the Director of the Lawyers Collective, which drafted the HIV Bill.