The Impact of Law On Effective HIV Responses In India

Shobha Shukla *

The South Asian Association for Regional Cooperation in Law (SAARCLAW), UNAIDS Technical Support Facility for South Asia (TSF-SA) and Maitri, together hosted a one day meeting on Thursday, 16 February 2012 in New Delhi, to discuss strategies for overcoming legal barriers to HIV prevention and treatment efforts. This meeting was one of the four regional consultations being held as part of the UNDP funded project 'Support to the development of enabling environment by scanning of laws that impede effective HIV and AIDS responses in India.'

It is widely accepted that the effectiveness of HIV responses depends not just on the sustained scale up of HIV prevention, treatment and care, but also on whether the legal and social environments support or hinder programmes for those who are most vulnerable to and affected by HIV and AIDS. The main challenge is to understand and try to amend laws that reinforce HIV-related stigma and prejudice impeding HIV prevention efforts and access to treatment, care and support.

The first half of the meeting was devoted to a comprehensive appraisal of laws in India which impede effective HIV responses. Ayesha Mago from SAARCLAW stressed upon the importance of examining how laws create barriers to access HIV services across the country, in different key affected communities (KAC). The fundamental issues at stake are stigma and discrimination within healthcare, administrative and cultural settings; human rights violations against KAC and People Living with HIV (PLHIV); balancing confidentiality (or the right to privacy) with public health; and access to treatment for all those who are in need of it. There is a great deal of discrimination and violence, as of now, not only from law enforcers, but also from the wider community at large, and from their own families, especially in case of LGBTs, and sex workers.

According to Joe Thomas, Project Director, TSF, "Laws indeed affect public health and play a critical role in effective health responses and at times becomes a serious impediment in HIV. About 80 countries still have laws that prevent PLHIV from travelling in and outside the country. Hence legal reforms are important for a better health of the country."

The Constitution of India guarantees equality for all people, prohibiting discrimination on the basis of caste, sex, religion and race. It also recognizes every individual's right to life and liberty, which includes the right to health. Yet there are several existing laws which inadvertently work in the reverse and impede effective HIV/AIDS responses. The Immoral Trafficking Prevention Act 1986 does not criminalize commercial sex work, but penalises soliciting in public places and keeping of brothels, thus putting sex work and trafficking under the same category.

The Bombay Police Act penalizes indecent/obscene behaviour in public, (which denotes anything that is not socially acceptable). These and other laws often become a tool for law enforcement authorities to brutalize and blackmail innocent victims. They allow the police to harass, abuse, and extort money from sex workers on a regular basis. This drives sex workers underground, and creates barriers for them to negotiate with clients for condom use, and access HIV prevention, testing and treatment services.

People who use drugs (PWUD) face tremendous stigma from legal and health institutions and from society as well. The Narcotics Drugs and Psychotropic Substances Act 1985, and the Prevention of Illicit Traffic in Drugs and Psychotropic Substances Act 1988 give wide ranging powers to the government for cognizable and non bailable arrest of anyone who manufactures, consumes or possesses drugs or drug paraphernalia. These, and other similar state laws, criminalize PWUDs, who are disproportionately affected by HIV/AIDS, leaving them widely exposed to exploitation and harassment from the police and preventing them from accessing harm reduction and treatment services.

It has been universally acknowledged that harm reduction strategies are far more effective as compared to harsh criminalization, when it comes to PWUDs and HIV. The repressive laws directly impact drug users' ability to practice harm reduction and access health services and disrupt HIV prevention programmes, preventing delivery of clean needles/syringes and hindering drug substitution therapy. All this escalates rates of HIV transmission not only in drug users, but outside their community too as they have partners.

It also blocks outreach efforts by threatening outreach workers involved with needle exchange programs. Even if one is handing out leaflets, trying to talk about using drugs safely, advocating condom use, it is taken as abetment to obscenity. All this escalates rates of HIV transmission not only in drug users, but outside their community in their partners.

The social stigma attached with lesbians, gays, bisexuals and transgender people (LGBTs), in India results in an environment where they are subject to harassment and violence from law enforcers and are ostracised by society as well as their families. The Indian Government has taken steps towards recognising gender plurality, namely including another category in official documents such as passports-people may now opt for 'male', 'female' or 'other'. However, without Government follow up and actions implementing these decisions, the category 'O' in passports may result in dire situations.

For instance a few years ago people travelling on O passports to Saudi Arabia were deported as Saudi Arabia did not recognise these documents as valid. Of course, the repeal of Section 377 (which criminalized carnal intercourse against the order of nature) by the Delhi High Court in 2009 has gone a long way in de criminalizing same sex behaviour. Yet other laws like the Bombay Police Act and Bombay Prevention of begging Act, as well as certain sections of the Indian Penal Code on public nuisance and obscenity continue to drive the LGBTs underground, impacting their ability to access HIV related services.

The archaic Prisons Act 1894 still remains unchanged. HIV is a major health challenge for prisoners. Despite India ratifying the International Covenant on Civil and Political Rights in 1979, there is extreme physical and emotional maltreatment of prisoners. The Supreme Court has now ruled that prisoners are entitled to all fundamental rights other than what has been taken away because of their offense.

But they continue to face serious basic human rights violations. Those living with HIV are additionally subject to coercive measures such as segregation, isolation and mandatory HIV testing without ensuring consent. Violence, poor nutrition, lack of medical facilities and improper hygiene are endemic to the prison environment and undermine the general health of the inmates. HIV prevention and harm reduction measures like provision of condoms, clean syringes, drug substitution therapies and counselling are hindered by prison policies and legal provisions criminalizing specific behaviour.

The Directive Principles of State Policy mandate equality for women and so does the Convention on Elimination of All Forms of Discrimination Against Women. The Protection of Women from Domestic Violence Act 2005 protects women from physical, emotional and economic violence. Yet the ground reality is very different, and most women are generally unaware of their legal rights. This has serious repercussions on their day to day living, especially in case of women living with HIV or those with alternate sexuality.

Women are generally more vulnerable to HIV than men-- both by virtue of their biology and due the gender inequity existing in our patriarchal society. Women found to be infected with the HIV virus are commonly ostracized, abused, separated from their children, forcibly sterilized and labelled as promiscuous. Many of them are thrown out of their marital home, especially after the death of the husband, and are invariably denied a share in assets acquired by the husband despite being legally entitled to them.

Thus, very often even well meaning laws are interpreted and implemented in a manner which impacts affected communities negatively. The HIV Bill, which was drafted keeping affected communities' interests in mind, has been sitting on the table since 2007. It could be a panacea for many problems as it addresses (i)the right to access treatment; (ii) prohibition of discrimination; (iii) confidentiality; (iv) risk reduction strategies; (v) informed consent for testing, treatment and research. But one does not know if it will ever be passed and in which form. Till then, we will have to seek proper interpretation and implementation of existing laws.

It was overwhelmingly felt at the meeting that dissemination of information, especially in terms of HIV and Law, is a crying need because very few people from KAC are even aware about it. Awareness about HIV and Law, at the ground level is very poor. There should be an HIV and Law forum in which more representatives from KAC participate and come together to know about their constitutional rights, about what the legal system supports and what it does not support, about the existing laws and how they are affecting the community, about the community needs which can be transferred into positive laws.

We need to work together and make available all the relevant information to all community members and at the same time endeavour to harmonize our laws with the international standards of law aimed at getting to zero new infections, zero new deaths and zero discrimination in the field of HIV/AIDS. (CNS)