India takes flawed first step towards ending HIV and Aids prejudice

Amrit Dhillon in New Delhi

Landmark law banning discrimination against people with HIV criticised for failing to guarantee treatment and potentially flawed enforcement measures

Activists in Agartala, in the Indian state of Tripura, light candles as part of an Aids awareness campaign. A new law is designed to end discrimination against HIV-positive people. Photograph: Jayanta Dey/Reuters

A landmark law banning discrimination against people living with HIV in India has sparked criticism, with one lawyer claiming the legislation could turn back the clock on tackling the virus to the mid-1990s.

India is the first state in south Asia to pass legislation prohibiting discrimination against the country’s 2.1 million HIV-positive people, with jobs, housing, education and hospitals particular areas of focus.

The HIV and Aids prevention and control bill, passed by Parliament on Tuesday, also bans staff in public places such as restaurants and shops from refusing entry to anyone with HIV or Aids.

Last year, the UN reported that 1 million people in India are now receiving treatment for HIV. There has been a drop in cases of discrimination in the country’s cities, but hostility towards HIV-positive people remains entrenched in small towns and rural areas, which tend to be more socially conservative.

Children living with HIV have been thrown out of school, while adults have been sacked from their jobs, refused homes and even denied hospital treatment by doctors who refuse to touch them.

On Tuesday, the health minister JP Nadda hailed the bill – first mooted 15 years ago – as historic and promised action “against those who create hatred against HIV patients”.

Steve Kraus, director of UNAids’ regional support team for Asia and the Pacific, said: “This is an important step forward for people living with and affected by HIV in India and around the world.

“This legislation begins to remove barriers and empowers people to challenge violations of their human rights.”

However, there has been opposition to a requirement that all state governments must establish an ombudsman to investigate violations of the new law, while a stipulation that the government must provide free treatment “as far as possible” has also met with resistance.

Anand Grover, senior advocate with the Lawyers Collective, said: “This ‘As far as possible’ is a loophole which will turn the clock back to the mid-1990s. Without the guarantee of treatment, HIV will once again become a death sentence. As for the ombudsman, it is neither a full-time post nor is the person required to have any judicial training.”

Paul Lhungdim, project coordinator for the Delhi Network of Positive People, questioned where the money would come from to pay for an ombudsman. “Where will the state government, particularly if it is small and financially weak, get the funds to set up and maintain such a post?” he asked.

“It might just leave the post vacant. We would have preferred this responsibility for the ombudsman to have stayed with New Delhi.”

Lhungdim added that the caveat on treatment would weaken its impact.

“This is like opening the door and wondering why the horse bolted. How do we hold anyone accountable with a clause like this? Yes, discrimination is a bad thing but it is likely to continue in some form or another given what society is like. For us, treatment is the absolute priority, so that we can be healthy and live. This clause dilutes the impact of the law,” said Lhungdim.

Anjali Gopalan, founder of the Naz Foundation (India) Trust, which runs a home in New Delhi for orphans who are HIV-positive, said: “These are significant loopholes. When state governments implement federal laws, they make their own rules and these can easily water down the requirement for an ombudsman. That said, nonetheless, the law is welcome because at least it gives people some recourse, some protection.”