30 June 2017

On 5 May 2017, in a public interest litigation brought by Naz India in 2015, India’s Supreme Court held that children living with or affected by HIV (that is, children who are HIV positive and children who are HIV negative but whose parent[s] is HIV positive) should be afforded protected status and included as a ‘child belonging to a disadvantaged group’ under India’s Right of Children to Free and Compulsory Education (RTE) Act (2009). The extension of protected status to children living with or affected by HIV means that they are now entitled to special protections and measures, under the terms of the RTE Act. These include:

  • measures to prohibit and eradicate discrimination, harassment, and victimisation of children from disadvantaged groups
  • eliminating discrimination in relation to the admissions process including denying or limiting access to any benefits of enrolment or through segregation in separate study, sports, playground, canteen areas or any other amenities provided by the school
  • protection from financial extortion or forced expenditure
  • the guarantee that private schools will allocate a minimum of 25% of places in each class to children from disadvantaged groups
  • special mechanisms are available for complaints of discrimination

Prior to this case, each state government could specify HIV status as a protected class, and while 11 states (of 29) had done so, they were under no obligation to. As a result of this case, India’s central government issued a letter to education secretaries in each state urging them to comply with the court’s order and, in a positive development for children living with or affected by HIV and AIDS, none of the states approached the court to object to the content of the notice.

In contrast to the country’s states, India’s union territories come under direct central government control. Therefore, the government has been able to issue a simple notification indicating that all union territories will include HIV status in its ‘disadvantaged sections’ 

The court order follows  the recent promulgation of India’s HIV and AIDS (Prevention and Control) Act (2017), which also covers discrimination against people living with HIV/AIDS in the workplace, healthcare, and public life as well as education. The Act, which has not yet entered into force, addresses the significant stigmatisation and discrimination faced by HIV affected people in India. While HIV infection rates are generally lower in India compared with other middle income countries, the sheer size of India’s population (currently 1.2 billion) means there are some 2.1 million people living with HIV/AIDS, of whom 300,000 are children. As far back as 2004 Human Rights Watch reported widespread discrimination of children living with HIV/AIDS, with many being either segregated from non-HIV positive pupils, expelled from schools or denied entry to education altogether.

The Act strengthens legal protections for those living with or affected by HIV and AIDS and in relation to education, the Act prohibits:

  • discrimination against persons affected by HIV through the denial or discontinuation of, or unfair treatment in, educational, establishments and services (Article 3(d))
  • HIV testing as a prerequisite for accessing or continuation of education (Article 3(l))

The order also follows a similar decision by the Supreme Court of Sri Lanka in April 2016 which found that the government has an obligation to take necessary measures to protect, promote, and respect the human rights of people living with HIV, including the right to education.

Resources

The decision can be accessed, here.

India Today: HIV Positive kids to now get free and compulsory education

The full text of the HIV and AIDS Prevention and Control Act, 2017 can be read here.

Sydney Morning Herald: India passes HIV/AIDS anti-discrimination law but stigma endures

To find out more about the impact of stigma and discrimination on HIV and AIDS visit the Avert website.