New law for control of HIV AIDS 3

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Shall we introduce a new Law
For effective prevention and control of HIV/AIDS in Manipur?
- Part 3 -

Dr. Khomdon Singh Lisam *

Fundamental Rights:

The chapter on fundamental rights (Chapter-III/ Indian Constitution) is the most important chapter in our Indian constitution. These criminal laws have become strong barriers to the smooth and proper implementation of the HIV/AIDS Control programme. The fundamental rights include:-

Equality before Law ( Article-14)

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (article-15)
Equality of opportunity in matters of public employment ( Article-16)
Protection of certain rights regarding freedom of speech etc( Article-19)
Protection in respect of conviction of offences (Article-20)
Protection of life and personal liberty ( Article-21)
Protection against arrest and detention in certain cases (Article-22)
Freedom of conscience and free profession , practice and propagation of religion (Article-25)
Protection of interest of minorities( Article-29)

Laws relevant to HIV/AIDS:

The laws relevant to HIV/AIDS are the Customary Laws, Religious Laws, the Indian Penal Code-1860, Transfer of property Act -1860, Indian Contract Act-1872, Indian Evidence Act- 1872, the Code of Civil procedures - 1908, Narcotics Drugs and Psychotropic Substances Act (NDPS Act-1985) etc.

Four roles of laws:-

1. Proscriptive role: It penalizes certain forms of conduct like homosexuality or injecting drug use.
For example:
Compulsory HIV testing of certain population groups like IDUs, commercial sex workers (CSWs), men having sex with men (MSMs), prisoners, immigrants .

Compelling disclosure of HIV test results
Criminal sanctions on the sale of condoms

The people at risk are reluctant to identify themselves for fear of being prosecuted for aiding and abetting an illegal activity. They do not participate at the programme.

Protective role: - It upholds the rights and interests of those infected or at risk of infection. - Protection against discrimination, protection of confidentiality for people with HIV.

Instrumental role - It promotes the changes of values and patterns of social interactions that lead to susceptibility to HIV infection.

It seeks to address the social and economic factors that deprive individuals of the power to protect themselves against HIV infection. It seeks to empower women through land ownership and marital property laws.

Human Rights and AIDS:

On 10th December, 1948, the Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by the UN General Assembly as a global bill of rights -"a common standard of achievement for all peoples and all nations.

These Rights are generally inviolable; inseparable and indivisible. Human rights are not the rights granted by the Government. Rather, they are rights vested within ourselves by virtue of being a human being.

The following measures are considered to be consistent with International Human Rights Standards":

voluntary testing with strict safeguard for confidentiality/anonymity.
pre/post - counseling and HIV testing
voluntary treatment
voluntary modification of behavior

The following measures are considered to be "In-consistent with International Human Rights Standards":

compulsory HIV testing of people with high risk behaviors -like IDUs, CSWs and MSMs
compulsory isolation, quarantine or removal to colonies,
enforced admission to hospitals/hospices,
mandatory collection, storage, process of identifiable personal information,
disclosure of HIV test to third persons without patient's consent
interference with freedom of movement
making entry into country of returning nationals conditional to their taking tests.

The International Labour Organisation (ILO) (WHO/GPA/INF/90. 1st June, 1988) has observed that:-

employment should be protected from discrimination
no pre-employment or employment HIV testing / screening is required
no obligation for an employee to inform employer about his/her HIV/AIDS status
HIV infection is not a reason for termination or dismissal from service.

The International Bar Association has declared on 2nd October, 1989 that:-

effective legal measures should be brought forward to ensure equal access to employment for persons with HIV
Effective legal measures should be introduced to prohibit discrimination against HIV positive persons in housing, employment, public accommodation, granting of credit, delivery of services.
HIV testing as a condition of employment should be prohibited except where the absence of HIV is a bonafide requirement of the job.

The State Government may not touch upon the CRPC and Indian Penal Code and other central acts. However, the State government can definitely pass a legislature to overcome legal barriers and also to mitigate the suffering of the people infected and affected and also widows and orphans.

The legal environment should ensure appropriate ethical and juridical principles such as autonomy, respect for confidentiality, privacy, individual human rights, and right to health, non-discrimination and equality before law.

In the final analysis, the judicial function remains: - of protecting the vulnerable and defending their human dignity. We have to instill hope, comfort and inner peace in the life of the people with HIV/AIDS. We have to provide compassionate care, overcome stigma and discrimination, respect privacy, human dignity and confidentiality of people with HIV/AIDS.

Considering these issue, I personally feel that it is high time for us to initiate a debate on what type of legal response we want to have in Manipur for effective and efficient implementation of the AIDS Control Programme in the state.

(Comments and suggestions to this article may be sent to: [email protected])

* Dr. Khomdon Singh Lisam has the following credentials :
MBBS, M.H.A (AIIMS), HSMC (IHF/London), M.A (HMPP/UK), CCEA (Chula/Bangkok), PDCE (UCLA/USA)
He is also the Chairman and Executive Director AIDS Consortium. He can be contacted at aidsconsortiumindia(at)yahoo(dot)co(dot)in . This article was webcasted on 21st January 2008.

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