HIV Act: When a law fails to change social attitudes

A judgment by a sessions judge at Dindoshi shows us that the passing of progressive legislation is just the beginning. There is still much struggle ahead before HIV-affected persons can be welcomed into society as equal members
The HIV Act is a piece of social welfare legislation. It aims to undo a history of discrimination against a particularly vulnerable and marginalised section of society (Getty Images/iStockphoto) PREMIUM
The HIV Act is a piece of social welfare legislation. It aims to undo a history of discrimination against a particularly vulnerable and marginalised section of society (Getty Images/iStockphoto)
Updated on Oct 18, 2021 05:49 PM IST
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ByGautam Bhatia

In 2017, Parliament passed the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act. The HIV Act is a landmark law, as it acknowledges for the first time the rights of persons affected by HIV. In our country, we have a shameful history of social, economic, and legal discrimination against HIV-affected people, as well as a history of societal stigma. The Act recognises this history, and seeks to redress it.

For example, the HIV Act explicitly prohibits all forms of discrimination against HIV-affected people. This includes job discrimination, discrimination in renting or buying property, and discrimination in access to public spaces. There are two particularly crucial provisions that speak to the specific forms of discrimination, persecution, and violence that has been meted out to HIV-affected persons.

First, the HIV Act explicitly forbids the “isolation or segregation” of an HIV-affected person, a prohibition that is particularly necessary in order to deal with long-standing practices of excluding people deemed to be carriers of infection from normal public life. Second — and subject to a few narrowly-defined exceptions — the Act prohibits “medical treatment, medical interventions or research” upon any person, without their informed consent. There is a history behind this as well: HIV-affected people – as well as people suffering from a range of other diseases – have often been treated as less-deserving of rights, and as guinea pigs or lab rats for the purposes of the advancement of medical science.

The HIV Act, therefore, is a piece of social welfare legislation. It aims to undo a history of discrimination against a particularly vulnerable and marginalised section of society (ie, HIV-affected people), and ensure that they are treated as equal moral members of the polity. Unfortunately, however, societal attitudes cannot change as rapidly as the passing of a law; in particular, a recent judgment of a sessions court in Mumbai highlights both the long way that we as a society still have to travel, as well as the urgent need to educate State authorities — especially administrators and judges — about the law.

In this case, the sessions judge at Dindoshi passed an order requiring that an alleged sex worker, who was HIV positive, be detained for a period of two years, as setting her free would be a “danger to society”. The judge passed this order solely on the basis of police allegations in a First Information Report filed by the police, according to which the individual in question had allegedly accepted money for sex work. The judge further relied upon the Suppression of Immoral Traffic Act as providing legal sanction for this detention.

This judgment is problematic for many reasons. To begin with, it is important to note that the Suppression of Immoral Traffic Act – a 1956 law that was framed on the basis of certain outmoded mid-20th-century assumptions about prostitution – was specifically amended in 2006 in order to fix liability not on the sex worker, but on those who coerced or otherwise forced people into sex work. In this context, Section 17 of the Act – which allows a magistrate to send a person to a protective home – is, as the phrase suggests, meant primarily for the protection of sex workers.

In this case, however, it is clear that the only, and specific, reason why the sessions judge ordered the individual to be detained for two years was their HIV-positive status, and the judge’s belief that, if left free, they would pose a “danger to society”. The order, thus, was not in any sense for the protection of the individual; on the other hand, it amounted to clear discrimination on grounds of HIV status, something explicitly prohibited by the HIV Act.

Indeed, the judge’s decision brings to mind colonial-era beggary laws, some of which have been recently struck down as unconstitutional in Delhi and Jammu and Kashmir. These beggary laws, likewise, allowed for the detention of people without “visible means of sustenance” if magistrates believed that they were a threat to orderly society. Detention provisions under beggary acts were historically used to weaponise the law against the poor, and to make them “invisible.”

In much the similar way, the session judge’s (mis)use of the protective detention provisions under the Immoral Traffic Act is not only discriminatory, but also invisiblises the plight of the HIV-affected individuals by depriving them of their liberty and hiding them away from society for fear of “contamination”. As we have seen, this is precisely the logic – and the vocabulary – that the HIV Act was passed to counteract.

It is thus to be hoped that the higher courts step in swiftly and remedy this gross injustice, that has — in essence — deprived an individual or her liberty for two years. But, at a broader level, this incident shows us that the passing of progressive legislation such as the HIV Act is just the beginning. There is still much struggle ahead before HIV-affected persons can be fully welcomed into society as equal moral members. However, sensitisation of State officers in this regard would be an important first step.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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Saturday, December 04, 2021