A SWOT analysis of the Indian Legal system and the issues of people living with HIV


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A SWOT analysis of the Indian Legal system and the issues of people living with HIV

  1. 1. A SWOT analysis of the Indian Legal System and the issues of people living with HIV in the context of SAATHII’s Coalition Based Advocacy Project in West Bengal June 2009Solidarity and Action Against The HIV Infection in India
  2. 2. Acknowledgements My gratitude to SAATHII for giving me the opportunity to work on this paper, and for the support, encouragement and knowledge so unstintingly shared along the way. A special thank you to Pawan Dhall for patiently waiting for me to discover where I really belong. Sincere thanks to my seniors Dr. Debashis Chatterjee, Ms. Rotrout Roychoudhury and Ms. Jolly Laha for their guidance and insights.A SWOT analysis of the Indian Legal System and the issues of people living with HIVin the context of SAATHII’s Coalition Based Advocacy Project in West BengalPrepared by Vahista DastoorResearch Intern from 2 Year Diploma in Psychological Counselling, Jadavpur Universityat Solidarity And Action Against The HIV Infection in IndiaAll rights reserved. This document may be freely reviewed, quoted, reproduced or translated,in part or in full, provided the source is acknowledged.The views expressed in the document are solely the responsibility of the author. Vahista Dastoor | Documentation Consultant | email: vahista@gmail.com
  3. 3. Table of Contents1. Introduction............................................................................................................................. 11.1 Background .............................................................................................................................. 11.2 Current policies and thoughts on the HIV epidemic ................................................................. 21.3 The significance of law in the HIV epidemic............................................................................. 32. Methodology ........................................................................................................................... 52.1 Research Objectives ................................................................................................................ 52.2 Research Design ...................................................................................................................... 53. Discussion .............................................................................................................................. 73.1 Indian laws regarding key PLHIV issues .................................................................................. 73.2 How the law increases vulnerability in PLHIV high risk groups ............................................. 113.3 The law and PLHIV women.................................................................................................... 153.4 Analysis of litigation process in India...................................................................................... 193.5 Legal stakeholders: Knowledge and attitude towards PLHIV issues in West Bengal............ 224. Conclusions .......................................................................................................................... 264.1 SWOT summary of the Indian legal system ........................................................................... 265. Recommendations ............................................................................................................... 285.1 Recommendations for SAATHII’s Legal Aid Unit ................................................................... 286. Bibliography.......................................................................................................................... 297. Addendum............................................................................................................................... 17.1 Recent developments on Section 377 of the Indian Penal Code............................................. 1
  4. 4. 1. Introduction1.1 Background This research has been prompted by my association as an intern 1 with the organization Solidarity and Action Against The HIV Infection in India (SAATHII), Kolkata. The research is conducted in the context of a project titled “Building the Capacity of People Living with HIV and Sexual Minorities in Orissa and West Bengal to Advance their Health and Rights”, informally known as “The Coalition Based Advocacy Project”. The project’s primary beneficiaries / stakeholders are people living with HIV (PLHIV) and sexual minorities and their networks, support groups and coalitions in the states of Orissa and West Bengal. The goal of the project is to promote improved health equity for its primary stakeholders, particularly with regard to Sexual and Reproductive Health (SRH) and HIV/AIDS, by empowering them to demand and enforce their fundamental right to health and life as guaranteed by the Indian Constitution. There are significant legal reforms and civil society initiatives underway in India to define and protect the rights of PLHIV and sexual minorities. Many of these initiatives involve intensive multi-stakeholder legal and policy advocacy at various levels of governance, and this project is one such initiative. To build up the necessary evidence needed for advocacy for the protection of PLHIV rights, cases of human rights violations are being documented as one of the activities of the project. However, instead of relying solely on advocacy efforts that are likely to yield at best gradual and long-term results, the project also aims to facilitate access to existing means or provisions of legal redress that have at least some merit and yet remain untested or under- utilized. In the context of these inter-dependent outputs, a Legal Aid Unit (LAU) has been envisaged that will provide legal advice and other legal support to counter harassment, denial of service and any other hurdles that prevent access to and uptake of HIV and related services. Rights based approach Documentation of Human Advocacy Legal reform Rights Violations A social, cultural, religious, PLHIV and Sexual economic, legal and policy Human milieu in which people are Increased Minorities in WB Rights able to access SHR and HIV and Orissa health services without fear of abuse and discrimination equity Awareness of rights Legal Aid Sensitization of legal stakeholders Figure 1: Law related activities of the Coalition Based Advocacy Project1 While undergoing a Two year Diploma Course on Psychological Counselling, Jadavpur University, 2007-2009 1
  5. 5. The objective of this research paper is to do a SWOT study of the Indian legal system vis-à- vis PLHIV in West Bengal in order to guide strategy for law related activities of the Coalition Based Advocacy Project. It is also envisaged that this study will serve as a foundation for more detailed research into the knowledge and attitudes of legal stakeholders vis-à-vis PLHIV as a prelude to assess training and sensitization needs of the judiciary on the legal issues that PLHIV face.1.2 Current policies and thoughts on the HIV epidemic1.2.1 Global Policy The UNAIDS Report on the Global Epidemic, 2008 reports that globally, there were an estimated 33 million people living with HIV in 2007. While the percentage of PLHIV globally has stabilized since 2000, the overall number has increased as a result of the ongoing number of new infections each year and the beneficial effects of more widely available antiretroviral therapy. In virtually all regions outside of sub-Saharan Africa, HIV disproportionately affects injecting drug users, men who have sex with men, and sex workers. HIV infections among men who have sex with men are increasing sharply in parts of Asia. In June 2001, global consensus on the importance of tackling HIV-related stigma and discrimination was highlighted at the United Nations General Assembly Special Session on HIV/AIDS (UNGASS 2001), and after about a decade and a half of dealing with the HIV epidemic, it was declared that confronting stigma and discrimination was a prerequisite for effective prevention and care in the HIV epidemic. The 2008 UNAIDS report on Global Aids Epidemic reiterates that there is a high degree of human rights violations against PLHIV across the globe, and states that long-term success in responding to the epidemic will require sustained progress in reducing human rights violations associated with it, including gender inequality, stigma and discrimination.1.2.2 India The estimate of HIV prevalence in India stands at 2.5 million (2007). Although HIV and AIDS affect all segments of India’s population, prevalence among certain groups (sex workers, injecting drug users, truck drivers, migrant workers, men who have sex with men) remains high and is currently around 6 to 8 times that of the general population. 2 The National AIDS Control Organization (NACO), formed under the Ministry of Health and Family Welfare in 1986 provides national level policy on the HIV epidemic, and since 2001, has been guided by the ‘Three Ones’ which govern international AIDS policy – One Agreed Action Framework, One National AIDS policy, and One National Monitoring and Evaluation System 3 formulated at the United Nations General Assembly Special Session on HIV/AIDS (UNGASS 2001). NACO’s National AIDS Prevention and Control Policy Plan Phase III 2006 – 2010 (NACP-III) states that “…when human rights are protected, fewer people become infected and those living with HIV/AIDS and their families can better cope with HIV/AIDS. The government recognizes that without the protection of human rights of people who are vulnerable and afflicted with HIV/AIDS, the response to the HIV/AIDS epidemic will remain incomplete”. Although NACP III states the government intent in following an approach that ensures the2 Avert.org3 United Nations General Assembly Special Session on HIV/AIDS 2
  6. 6. protection of rights as a key element in successfully dealing with HIV/AIDS, its directives, being policy, and therefore only statements of intent, are unenforceable in a court of law. India has a dismal human rights record, and there is documented evidence of increased incidence of human rights violations against PLHIV. One of the most comprehensive studies across various institutional settings in India is a study titled India: AIDS Related Stigma, Discrimination and Denial (Shalini Bharat), which documents discrimination against PLHIV across in Greater Mumbai and Bangalore, and reports that social and institutional reactions to PLHIV are overwhelmingly negative across all institutional settings, and are marked by strong discrimination and denial.1.2.3 West Bengal In West Bengal the number of PLHIV is estimated at 16,000 4. According to the West Bengal State AIDS Prevention & Control Society, the following factors contribute to the vulnerability of people living in the state to HIV - poverty (almost 27% of the population lived below the poverty line in 2000), human trafficking, gender inequity (on the Gender Disparity Index, 1991, West Bengal ranked 28 out of 32 states), large scale migration, low levels of awareness among youth, and stigma and discrimination. In West Bengal there is a significant level of stigma and discrimination associated with populations which are at high risk to HIV – sex workers, injecting drug users and sexual minorities. Although the state has large communities of men who have sex with men (MSM) and male-to-female transgender people, these communities face hostile social, economic and legal environments, and a significant number stay completely submerged within the male population to avoid being persecuted. Combined with other social and economic factors, this phenomenon contributes to difficulty in delivery of sexual health information and services, lack of awareness around HIV/AIDS and related issues, unsafe sexual practices and poor health seeking behaviours in all three groups. It is not a coincidence that most of the socio-economic factors listed above are factors which make people vulnerable to HIV are factors that are conducive to a climate that leads to human rights violations, even without the threat of HIV. Socio-economic inequity and gender inequity leads to disempowerment in all aspects of life, and it is a sad truth that those who need their rights the most for basic survival are those who are most threatened by violations of those rights. In fact, HIV is just another platform for violating the rights of another in an inequitable society1.3 The significance of law in the HIV epidemic The law and HIV/AIDS have been intricately connected right from the early stages of the epidemic. Many of the people affected, such as sex workers, gay men and drug users were already the target of punitive legal provisions. Moreover, the fear generated by the epidemic meant that initial responses to those who were infected or perceived to be at risk of infection were punitive and isolationist, fuelled by ignorance about how the disease was transmitted, unjustified fear of infection and prejudice against groups that were considered to be ‘vectors’ of the disease. These were not just individual responses to a perceived risk – they were the ill-considered official responses of medical, social and legal agencies in their efforts to contain the disease.4 Based on estimates made by Bengal Network for People Living with HIV/AIDS in 2007 3
  7. 7. In India, the case of Dominic D’Souza came to the public eye in the late 1980s, when officialagencies, rather than concern themselves with treating a person facing an incurable disease,incarcerated him in isolation in an abandoned hospital against his will, and allowed him noaccess to his family, medical care and legal recourse. D’Souza’s blood had been tested forHIV without his knowledge when he had donated blood, subsequently the hospital did notdisclose his HIV status to him, instead they informed the police some months later, he wasthen detained and incarcerated in an unused TB sanatorium for 64 days under the Goa PublicHealth Act, which allowed for mandatory detention of all HIV positive people for an indefiniteperiod of time, regardless of whether there was any risk of transmission of the disease.Eventually, his family challenged his detention, and he was given interim release, notbecause of illegal detention, but because the court considered that the HIV testing procedurefollowed was not sufficiently reliable to justify detention. On his release, he attempted toreturn to work and found that his job had already been given to someone else, and he wasasked to resign by his employer because of concern that other employees would not want towork with a person with HIV. Legal issues arose at every point in D’Souza’s case – his bloodwas tested without his knowledge or consent, his confidentiality was breached by the hospitalinforming the police, he was detained under in-human conditions without access to care, andwas unjustly discharged by his employer.D’ Souza’s story repeats itself many times over in all corners of India and across the world.Many countries have adopted legislation to prevent the rights of PLHIV being violated, and ithas been seen that in place of punitive approaches, legislation that supports the rights ofPLHIV have proven successful in reducing HIV prevalence, especially in populationsconsidered to be at high risk.Responses to HIV have brought to the fore the debate between individual rights versus publichealth. Policies that infringe on individual rights, such as mandatory HIV testing or publicdisclosure of serostatus are defended on the grounds of protecting public health. However,decades of experience have shown that such an approach undermines HIV containmentefforts. On the contrary, when individuals’ rights are protected, they are more likely to comeforward and be tested, get treated and act responsibly to ensure that they do not spread thedisease.The disease has also raised questions such as the rights of HIV positive persons to marryand have children, the right of a spouse or a sexual partner to know the partner’s serostatus,and the rights of health-care workers. Issues of compulsory testing in institutions such as theArmy, nursing, brothels and prisons, issues of disclosure of serostatus in the family andinstitutions have been debated from various perspectives. Each of these questions needs tobe answered within a legal as well as ethical framework, keeping in mind that there can be nojustification for violation of the rights of one person to protect the rights of another.The persons most at risk to HIV today are those who are socio-economically vulnerable.These groups are sex workers, injecting drug users (IDU), men-having-sex-with-men (MSM),women and children, among others. Because of their socio-economic vulnerability, thesegroups are more vulnerable to human rights violations, hence it is essential to incorporateprotective measures for these groups into any HIV policy or intervention.Apart from the abovementioned issues, In India, the HIV epidemic has exposed specific socialand legal impediments that contribute to gross violation of the rights of PLHIV and individualsand communities vulnerable to HIV infection. Issues that arise when dealing with HIV – issuesregarding sex, sexuality, sexual behaviours, gender inequality, economic and social inequality– are deeply entrenched taboos in Indian society, and the stigma and prejudices associatedwith these have intensified by being brought to the forefront. 4
  8. 8. 2. Methodology2.1 Research Objectives This study aims to determine the strengths, weaknesses, opportunities and threats of Indian law and the HIV epidemic in the following areas: - Indian law as it relates to issues of breaches of confidentiality, consent and discrimination in institutional settings - Indian law as it relates to three groups that are at high-risk for HIV – sex workers, injecting drug users and sexual minorities - Indian law as it relates to women - The realities of the Indian court system - The knowledge and attitudes of legal stakeholders towards PLHIV Although the Coalition Based Advocacy Project covers both West Bengal and Orissa, I have limited my research to cases and respondents in West Bengal. Further, in my study of the law, I have restricted my scope to studying Indian statutes and case law, and have not taken into consideration international laws and judgments in the HIV context. Although international law is often used in cases where Indian laws have no precedent, I have kept this out of the purview of my study.2.2 Research Design The following methods were used during the research:2.2.1 Primary Stakeholder Analysis The primary stakeholders of the study are PLHIV, and that includes persons who are infected with HIV, those perceived to be at risk for HIV infection, and those associated with them - I conducted interviews with four people living with HIV to document human rights violations against them. These interviews were conducted at a SAATHI partner site. - In two cases of human rights violations, I have been conducting a follow up of legal consultations between the clients and the lawyers - I have examined 10 case studies of human rights violations documented as a part of the Coalition Based Advocacy Project2.2.2 Interviews with Legal Stakeholders - I have conducted key informant interviews with 2 lawyers of the Calcutta High Court to understand the complexities of the law - I have conducted 6 semi-structured interviews with judges and lawyers to get their opinions on some of the legal issues that PLHIV face 5
  9. 9. 2.2.3 Literature Review The following literature review has been undertaken (a detailed bibliography has been given on Page 29. - Indian laws and case laws - International and national policies on HIV / AIDS - Law, ethics, human rights and HIV - Stigma and discrimination studies Note: In all interviews and case studies, the names of the respondents have been initialized in the interests of confidentiality. 6
  10. 10. 3. Discussion3.1 Indian laws regarding key PLHIV issues3.1.1 Introduction to Indian laws and PLHIV issues In 2006, the HIV Bill was introduced in the Indian Parliament. The Bill, which was drafted by Lawyers Collective – HIV/AIDS Unit in consultation with the government, persons living with HIV, vulnerable groups, healthcare providers, women, children and young persons, NGOs working on HIV and trade unions – embodies principles of human rights and seeks to establish a humane and egalitarian legal regime to support Indias prevention, treatment, care and support efforts vis-à-vis the epidemic. However, three years on, this bill is still pending in Parliament, and in the absence of any law or statute that specifically addresses the issues that are raised in the context of HIV in India, PLHIV issues need to be addressed by a variety of sources of law: - Constitutional law: Where the law is based on principles contained in the Indian Constitution. - Common law: Laws that are established by precedent or case law, or, in other words, by judgments previously made in similar cases. - Statutory law: The written or codified laws of a country that are made by its legislature. - Personal law: Laws that are a part of an individual’s religious code. In this context, it is necessary to describe the concept of human rights and ethics. Human rights are the basic rights and freedoms that all human beings enjoy, and are enshrined in various international covenants and conventions to which India is a signatory. Human rights are also reflected in the fundamental rights chapter of the Indian Constitution, and the Supreme Court has held that provisions of an international convention or covenant, which elucidate and effectuate the fundamental rights guaranteed by the Indian Constitution, can be relied on by courts as facets of those fundamental rights and are hence enforceable as such. Ethics refer to a set of principles and guidelines by which certain professions are guided. Often ethics are considered in the application of law – for instance in determining whether a doctor has been negligent in his or her care of a patient, the courts will consider medical ethics guidelines.3.1.2 Discussion of laws on discrimination, consent and confidentiality3.1.2.1 Indian law and institutional discrimination Discrimination is one of the most significant human rights abuses that PLHIV and persons associated with them face, and is the greatest barrier to controlling the epidemic. Discrimination occurs across a wide range of institutional settings — in particular, in workplaces, health-care services, prisons, educational institutions and social-welfare settings. Such discrimination crystallizes enacted stigma in institutional policies and practices against PLHIV, or manifests itself in the lack of anti discriminatory policies or procedures of redress. Many countries have extended legal frameworks to guarantee equality to PLHIV and provide for protection against discrimination in institutional settings. In some countries, disability laws have been extended to include HIV status and protect PLHIV from discrimination in both private and public sectors. However, In India, the rights of PLHIV are only protected under common law and the Constitution. Article 14 of the Indian Constitution states that ‘The State shall not deny to any person equality before the law or equal protection of the laws within the 7
  11. 11. territory of India’. Article 15 elaborates on the principle of equality by prohibiting discrimination on the grounds of religion, race, caste, sex or place of birth. Similarly Article 16 provides for equality of opportunity in public employment. However, these constitutional guarantees only cover acts of discrimination by the State, and the private sector is left practically ungoverned. In educational settings, there have been instances of HIV positive children or even uninfected children of HIV positive parents being denied entry to schools, and dismissal of teachers on the basis of their positive serostatus. Right to education is a fundamental right under Article 21 of the Indian Constitution, and discrimination in government schools is forbidden. In a progressive judgment passed in 1993 in the case of Unni krishnan J.P. vs the State of Andhra Pradesh (1 SCC 645), the court ruled that “private educational institutions, though not state instrumentalities, but since they perform a public duty of imparting educating, are bound to act in consonance with Article 14 of the Constitution. Discrimination in health-care settings is rampant – it ranges from reduced standard of care, HIV testing without consent, breaches of confidentiality including identifying someone as HIV- positive to relatives and outside agencies, negative attitudes and degrading practices by health-care workers to an outright denial of access to care and treatment. A 2006 study 5 found that 25% of people living with HIV in India had been refused medical treatment on the basis of their HIV-positive status, and surgeries are often cancelled or avoided on specious grounds once it is discovered that the patient is HIV positive. Further, although it has been widely recognized that by protecting the rights of health care workers against infection by providing for universal precautions, post exposure prophylaxis (PEP) and a safe working environment helps reduce discrimination in healthcare settings, and it is a common law duty of the employer to provide a safe working environment, most enterprises ignore safety provisions for their employees, and the rules are rarely enforced. Although discrimination in the health sector is a direct threat to the right to life defined in the Indian Constitution, by law, only state healthcare institutions are obliged to provide medical treatment to all persons in emergency and non-emergency situations without discrimination. Private healthcare institutions are not obliged to treat persons except in an emergency and until the patient can get other medical help (Parmanand Kataria v. Union of India AIR 1989 SC 203). In the workplace, discriminatory policies include denial of employment based on HIV-positive status, compulsory HIV testing, exclusion of HIV-positive individuals from training programmes, promotions, pension schemes or medical“Though we do not have a policy so far, I can say benefits. There is strong evidence of stigma in thethat if at the time of recruitment there is a person workplace in India, with 74% of employees not disclosingwith HIV, I will not take him. Ill certainly not buy a their status to their employers for fear of discrimination. Ofproblem for the company. I see recruitment as a the 26% who did disclose their status, 10% reported havingbuying-selling relationship. If I dont find the faced prejudice as a result (2006). Although a few Indianproduct attractive, Ill not buy it.” corporate houses have recognized that they have an enormous stake in the fight against HIV 6, most A Head of Human Resource Development, India organizations, even in the organized sector ignore the issue of HIV. There are a number of legislative acts which govern discrimination in the workplace; however these address gender discrimination in the context of equal opportunity and equal pay, and cannot be used to address the myriad issues raised by acts of discrimination related to HIV. Similarly, the Persons with Disabilities Act which provides for special schemes for disabled persons in public employment and public facilities is limited because it does not cover the 5 Avert.org 6 World Bank, Case Studies from India: Corporate Responses to HIV/AIDS 8
  12. 12. private sector in any of its schemes or provisions. In any event, the issue of covering PLHIV as ‘disabled persons’ is controversial – while people with disabilities are stigmatized because of their disability, in the case of PLHIV it is the stigma that is disabling, not the disease – and a provision which would force persons to disclose their status in order to access available protection would be discriminatory and disabling in itself. There have been some landmark judgments when employees have taken companies to court, which are encouraging. In the case of MX vs. ZY, MX, a loader in a public sector company was removed from the roster of casual labourers and his contract was cancelled when he tested HIV positive. The Bombay High Court held in his favour, stating that an HIV positive person could not be denied recruitment to a job as long as he can perform his duties and as long as he does not pose a significant risk to others. In another case, (Mr. Badan Singh v Union of India and Another) an employee of the Border Security Force (BSF) was considered unfit after it was discovered that he was HIV positive. In their defense, the BSF made allegations about the morality of the petitioner, and alleged that he had contracted HIV in order to earn a disability pension. The court held against the defendants, and ordered them to pay the petitioner invalid pension together with an interest of 6% per annum. In the case of X v. Bank of India, X, working as a casual labourer at the Bank of India, was denied permanent status because of his HIV positive status and reinstated by the court. Similarly, in the case of Chhotulal Shambahi Salve vs. the State, the petitioner was selected for the post of unarmed police constable, however, after a medical test he was considered not medically fit as he had HIV. The court ruled that the petitioner was perfectly fit to carry on the duties of an unarmed constable and the state was ordered to reinstate the petitioner. In the case of G vs. New India Assurance Co. Ltd, the petitioner was a widow who had applied to New India Assurance Co. Ltd for employment on compassionate grounds after her husband died while in employment with the company. The company declared that she was medically unfit as she was found to be HIV positive after taking a medical fitness test. In her case Justice Banerjee, speaking for the Bench, observed that the socialistic patterns of society as envisaged in the Constitution had to be attributed their full meaning, and that the law courts could not be mute spectators where relief is denied to an employee’s family on account of the death of the bread earner. He further ruled that a person cannot be denied employment only on the ground that the person is HIV positive. However, it must be noted, that these rulings, though protective of PLHIV rights, have only been applied in the public sector. While private companies cannot be denied their employee recruitment and practices, there is no legal framework to adjudicate on issues such as what constitutes ‘significant risk’ in the workplace and reasonable accommodation for employees who are unable to continue their current assignments because of deterioration in health. Indian law and PLHIV consent issues Cases of people being tested without their consent or knowledge are common in Indian hospitals. In one 2002 study, it was suggested that over 95% of patients listed for surgical procedures are tested against their will, often resulting in their surgery being cancelled when they are discovered to be HIV positive. 7 The issue of consent derives from the principle of autonomy which is enshrined within the meaning of the right to life and personal liberty under Article 21 of the Constitution of India, and the right has been upheld in many various contexts by case law. For that right to be protected, no medical intervention, for diagnostics or treatment, should be undertaken unless the patient consents to it. Further, consent needs to be voluntary, full and informed, and7 Avert.org 9
  13. 13. explained in a language that the patient understands. As per NACP III guidelines, the principle of informed consent in the context of HIV includes the provision of pre-test and post- test counselling. Although the common law on consent is not fully developed in India, the concept of consent is elaborated in Section 10 of the Indian Contract Act, which can be utilized in the case of medical treatment. Further, Regulation 7.16 of the Medical Council of India (Professional Conduct, Etiquette and Ethics) Regulations, 2002 has guidelines that are now issued as regulations in which consent is required to be taken in writing before performing an operation. Similarly the Drugs and Cosmetics Act, 1940 and the guidelines of the Indian Council of Medical Research speak of consent for research. However, apart from NACP III guidelines on situations when compulsory testing is permissible, there is no clear statutory mandate regarding what constitutes ‘full and informed consent’, and breaches continue to occur. It is estimated that almost 80% of people access medical services in the private sector; however this sector remains unregulated with regard to mandatory testing, especially in employment and healthcare situations. Compulsory testing for HIV is permitted in the armed forces, and some states have tried to implement policies that would force people to be tested for HIV against their will. In Goa, the state government recently planned to make HIV tests compulsory before marriage, and in Punjab it was proposed that all people wishing to obtain or retain a driver’s license should be tested for HIV. Fortunately, neither of these policies were implemented. Indian law and HIV related confidentiality Lack of confidentiality has been repeatedly mentioned as a particular problem in all institutional settings, especially health care settings. Many people living with HIV do not get to choose how, when and to whom to disclose their HIV status. Studies by the WHO in India, Indonesia, the Philippines and Thailand found that 34% of respondents reported breaches of confidentiality by health workers. Although India does not have a specific law on confidentiality, the courts have construed Article 21 of the Constitution – the fundamental right to life and liberty – to include the right to privacy, from which is derived the right to confidentiality. This implies that every person has the right to a sphere of activity and personal information that is exclusive to them and that they have the right to disclose as they please. In legal terms, confidentiality exists within the parameters of a special relationship (doctor-patient, attorney-client, for instance) that is dependent on factors such as mutual trust, or to impart services. However, in the case of Mr. X vs. Hospital Z (1998) 8 SCC 296, the Supreme Court ruled against the HIV infected person’s right to confidentiality, and also questioned the right of PLHIV to marry by equating HIV with venereal disease, which is a ground for divorce under the Indian Penal Code. “An HIV-positive patient who may transmit the disease to his or her prospective spouse is not entitled to the maintenance of confidentiality, since the life of the spouse has to be saved. Therefore, a hospital can disclose a patient’s HIV status to his/her prospective spouse (partner), and in fact, since acts that are likely to spread communicable diseases are a crime under the Indian Penal Code, the failure of the hospital to inform the spouse of the disease would make them participant criminals.” In its judgment on the appeal, while the Supreme Court rescinded its earlier observations regarding marriage, and restored the right to marry for PLHIV, it upheld its previous decision about partner notification maintaining that this disclosure was permissible, but only if the person concerned does not do so even after being given an opportunity to do so. 10
  14. 14. There are a number of situations when it may be necessary to disclose the HIV positive status of a person. However, although NACO lays down protocols for the rules of such disclosure in India, these changes have not been reflected either in the Code of Medical Ethics, or in codified law.3.2 How the law increases vulnerability in PLHIV high risk groups In the context of HIV epidemic, risk is defined as the probability that a person may acquire HIV infection, and vulnerability is understood as lack of adequate control over one’s risk of acquiring HIV infection or accessing services for care, if already infected (TISS, 2006). Despite a marked increase in coverage, HIV prevention programmes still fail to reach many people at risk of acquiring HIV, including a majority of men who have sex with men and injecting drug users. In addition, nearly two thirds of countries (63%) have laws, regulations or policies that present obstacles to effective HIV prevention, treatment, care and support services for populations most at risk, and therefore make them more vulnerable to infection. 8 India is one of those countries.3.2.1 Sexual minorities and legal vulnerability In India, sexual minorities are stigmatized and marginalized because of their sexual behaviour and orientation, and are continually subject to oppression, violence and persecution from a society that is only grudgingly coming to accept same sex behaviour. Sexual minorities, especially MSM are most at risk of both contracting and transmitting HIV through anal sex. However, MSM are less likely to be exposed to safer sex practices and therefore are more vulnerable to HIV. For one, they fear to publicly access health services, and two, there is a general silence that is imposed on addressing their sexual health issues. Added to their social and medical vulnerability to HIV, Indian law adds to their vulnerability to HIV. Section 377 of the Indian Penal Code (IPC) 9, which was devised in 1860, seeks to criminalize and prevent homosexual associations, sodomy in particular. Although in the last twenty years there have been no convictions under this law, the police use Section 377 as a tool to harass, threaten, extort money and perpetrate violence against MSM and transgender persons. They are often charged under local level Police Acts, criminal laws of public nuisance, abetment and criminal conspiracy, and a community that is marginalized because of social prejudice is forced further underground because of the threat of the law. Even peer educators working in government approved sexual minorities’ programmes are subject to harassment under these laws by the police. Sexual minorities cannot legally marry, and “I was arrested for promoting homosexuality. there is no legal recognition of same-sex The leaflets we use for our outreach work relationships in the context of inheritance, were dubbed obscene. The police claimed property, parenthood, and adoption under that the replica of a penis used to demonstrate Indian laws. Transgender persons, especially the proper use of condoms was actually a sex Hijras, have no basic civil rights, amenities toy!” and services, and are exposed to gross and Arif Jafar, Naz Foundation (avert.org) dehumanizing degrees of violence in police custody including torture, gang rape and excessive cruelty.8 UNAIDS 2008 Report on the Global AIDS Epidemic9 See Section 7.1 Recent developments on Section 377 of the Indian Penal Code 11
  15. 15. Pushed to the fringes, many MSM and transgender persons have no access to spaces where they can negotiate safer sex, develop stable relationships, and access information and medical services. Stigmatized by both society and an archaic homophobic law, they hesitate to use health services for fear of persecution, and targeted health interventions cannot contact them because they remain invisible. Consequently, although their risk to HIV is high, they remain out of the reach of HIV prevention programmes.3.2.2 Injecting drug users and legal vulnerability While sexual minorities are considered aberrations in society, drug users are considered to be the dregs of society. Drug addiction is itself a medical disease meriting serious global concern. Add to that the habit sharing of needles and high-risk sex practices – and you have a group of people highly susceptible to contracting HIV. The nature of drug addiction increases medical vulnerability to HIV, as addicts often have compromised lifestyles and health and therefore compromised immune systems. The loss of jobs, rejection by families, and continual cycle of drug treatment and relapse leaves the average addict medically, socially and economically vulnerable to HIV. Laws set up to control drug trafficking collude with the deleterious effect society has to add to the drug addict’s vulnerability to HIV. As per the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS 1985), possession of drugs is a criminal activity, with punishments ranging from six months to one year, and / or a fine ranging between Rs.10,000-20,000, depending on the quantity of drug found. Research shows, however, that unless punitive action is accompanied by treatment and rehabilitation, there will be no reduction in the use of drugs. 10 Unfortunately, the former action seems to be easier to implement than the latter and as a result more time and money is spent punishing the street drug user than controlling drug trafficking, which is the main intention of the Act. As with MSM, criminalization of drug users tends to drive them underground, exposing them to riskier drug usage practices, and farther away from health programmes and practices. Another victim of the NDPS Act is the Needle Exchange Programme (NEP), which under the policy of harm reduction, encourages drug users to exchange their used needles for clean needles. NEP is a part of the prevention policy that is encouraged under NACP III – however the policies of one arm of the government (NACO) are criminalized by another arm, as NEPs are considered as aiding and abetting drug use. Some states, however, such as Manipur, have adopted their own harm reduction policies and consider that “Harm reduction is the urgent, practicable and feasible HIV prevention method among injecting drug users and their sex partners.” 11 In the majority of Indian states, though, tough regulations on drug users make it hard to reach this group with HIV messages, and to survey how they are being affected by the epidemic.10 Drug Policy In India, Compounding Harm, Molly Charles (ResearchDrugs)11 Avert.org 12
  16. 16. Figure 2: Schematic diagram showing vulnerability created by law for IDUs Prison settings are another environment in which injecting drug use is widely prevalent. This is due to the availability of drugs within prison settings, and the fact that drug users constitute a significant number of inmates within prisons – one study showed that 73% of drug users in its sample have been in a police lockup. Prisons are likely to expose IDUs to more drugs and riskier drug taking practices. Other risks such as overcrowding, sex, often forced, with other prisoners, violence and neglect leads to compromised health. When released, a lack of social and medical rehabilitation facilities drives the IDU back into the same vicious cycle of risk and vulnerability.3.2.3 Sex workers and legal vulnerability Although sex work is not strictly illegal in India, associated activities – such as running a brothel – are. The government has plans to introduce stricter legislation in regard to sex work (including decriminalizing the sex workers but criminalizing their clients), a move that has been opposed by organised sex worker groups who claim that such legislation would just push the trade underground and make it harder to regulate. It would also make it more difficult to reach sex workers with information about HIV, at a time when misinformation about AIDS among this group is rife – for instance, one national study suggests that 42% of sex workers believe that they can tell whether a client has HIV on the basis of their physical appearance. 12 The Immoral Trafficking Prevention Act, 1986 (ITPA) is the main statute dealing with sex work in India. ITPA is based on the principle that sex work is exploitation and is incompatible with the dignity and worth of human beings. While the ITPA does not criminalize sex work or sex workers per se, it punishes acts by third parties facilitating sex work, even when it is not coerced. Sections 7 and 8 of the ITPA directly target sex work in public places and solicitation, respectively. The Act punishes anyone maintaining a brothel, “living off earnings of prostitution” and “procuring, inducing, or detaining for the sake of prostitution”. The statute provides for detention in a ‘corrective institution of a female offender’ suggesting disapproval12 Avert.org 13
  17. 17. and censure of sex work. The ITPA includes trafficking of and sex work by males, childrenand women, but imposes heavier penalties on women as compared to men for the sameoffence.The ITPA also confers wide powers to the police and magistracy. All offences under ITPA arecognizable and the police are allowed to enter and search premises without a warrant.Magistrates can direct the police to enter a brothel and remove persons found there includingthose carrying on sex work. Magistrates are also authorized to order closure of brothels, evictoffenders and remove a sex worker from any place and prohibit reentry. The Supreme Courthas also held that while a sex worker has the fundamental right to move freely, the restrictionsplaced on her are justifiable in public interest, namely morals and health.Besides ITPA, several provisions of the Indian Penal Code 1860 as well as certain state levelActs on police, beggary, public nuisance, and vagrancy are widely used. For instance Section110B of the Bombay Police Act, 1951, which penalizes indecent behaviour in public, is usedextensively against street based workers. Male and transgender sex workers can also bepunished under the anti-sodomy law (Section 377). Once a woman is branded with the stigmaof sex work, police assume that she is always working, and feel entitled to arrest herregardless of what she is doing. Thus sex workers report being picked up while waiting for abus, shopping, or simply walking.The wide powers given to the police through ITPA, local Police Acts and other laws havebeen misused extensively to violate the rights of sex workers. Arbitrary police raids, seizure ofmoney and material belongings, extortion, physical assault, torture and rape by policepersonnel are all common experiences of sex workers, and these significantly impact HIVprevention efforts. Sex workers have been subject to mandatory HIV testing at the instance ofcourts, and in one case HIV status was cited as a ground for denying bail.The Act also provides for mandatory medical examination of ‘rescued’ persons for STIs andHIV/AIDS and segregation of infected persons in state homes, which is antithetical to humanrights principles, especially when the intended objective of such examination or segregation isunclear. While persons accused of facilitating prostitution under ITPA can and do get releasedon bail, ‘rescued’ women kept in ‘protective’ custody are denied their fundamental right toliberty in ’their own interest’. It is important to note that although the demand for sexualservices is driven by clients, they are invisible in the implementation of the law. In effect,although the Act is support to target and curb trafficking, it effectively targets the sex workeror anyone who ‘seems’ to be engaging in solicitation.In the context of HIV, the criminality associated with soliciting diminishes the ability of the sexworker to negotiate the terms of services, including rates and condom use. Fear of the policeand restrictions on practice pushes sex workers underground or into ghettoized locationswhere they are difficult to reach and vulnerable to abuse. Peer based interventions arehampered as women carrying condoms are apprehended by the local police on charges of‘promoting prostitution’. Further, a criminalized environment makes it difficult to reach sexworkers with health information, services and resources.As a result persons associated with sex work have inadequate access to health care services,PEP, voluntary counselling and testing, treatment and support. Incarceration in prison bringswith it the risk of infection via increased exposure to sexual violence and in the unlikely eventof consensual sexual activity within prisons, lack of access to condoms. 14
  18. 18. 3.2.4 Conclusion A positive initiative shows how, when vulnerable communities are protected and empowered, there is a decrease in the spread of HIV. This is the Sonagachi project, which has been recommended by the UN as a ‘best practice’ model for other sex worker projects around the world. The project, initiated in 1992, was designed with the aim of reaching out to sex worker communities and helping them to overcome HIV on their own terms. Its approach is based around three R’s: Respect, Reliance and Recognition – respecting sex workers, relying on them to run the programme, and recognising their professional and human rights. By helping to put sex workers in a position where they can respond to their own needs, the Sonagachi project has achieved impressive results. Between 1992 and 1995, condom use among sex workers rose from 27% to 82%. By 2001, it was 86%.The project continues to have an impact, with HIV prevalence among sex workers in the area falling from 11% in 2001 to 5.17% in 2005. The following graphic, published by UNAIDS in 2008, shows the median percentage of high risk group reached in countries with and without protective laws for these groups. Countries reporting having non- discrimination Median laws/regulations percentage of population with protection for reached with this population HIV prevention services Countries reporting NOT having non- discrimination laws/regulations Figure 3: Median % of high risk populations reached with prevention services3.3 The law and PLHIV women While sex workers, IDUs, MSM and transgender persons suffer discrimination because of stigma associated with their behaviour and activities, women are disabled the world over by unequal power relations and unequal access to economic and social resources, and this inequity is exacerbated by variables such as class, caste, urban/rural location, religion, culture and poverty. These factors have inevitable repercussions on a woman’s health, especially sexual and reproductive health and consequently on HIV/AIDS. While there have been a considerable number of laws passed in the last decade to bridge the gender divide and provide for the protection of women from discrimination, sexual violence and economic inequity, these suffer from poor implementation, and are also in some cases superceded by patriarchal personal laws in matters relating to family, marriage, divorce, maintenance and succession. One glaring example of a law which reduces a woman’s ability to negotiate for safer sex is the section in Hindu law which enforces cohabitation in a marriage 15
  19. 19. regardless of the wishes or security of the woman. In effect, Hindu law does not recognize the fact of marital rape. If a woman’s consent is considered immaterial to a sexual act, then her power to demand condom use or refuse sex with an infected husband is severely compromised. Gender bias in criminal and personal laws blurs the treatment of statutory rape – according to Section 375 of the Indian Penal Code, sexual intercourse with a female below the age of 16 is considered statutory rape, but the age bar is lowered to 15 where she is married. AIDS HIV stigmatizes women and men in gender-specific ways – women are generally blamed as vectors of the epidemic – to their partners and children – and HIV infection in women also serves to reinforce unequal sexual stereotypes whereby women are labeled as ‘promiscuous’ and morally unworthy. Societal ostracism for HIV positive women or caretakers of HIV positive people includes not being able to access water directly from the village well, loss of employment, public and indiscriminate disclosure of serostatus leading to rejection and social boycott, and loss of marriage options for daughters or other women in the family. The Supreme Court of India has ruled that the meaning and content of the fundamental rights guaranteed in the Constitution of India can be applied to all the facets of gender equality, and has also acknowledged the importance of international covenants in interpreting and recognizing women’s rights in the country. In recent years there has been substantial reform in the striking down of laws discriminatory towards women and the passing of protective laws. However, though the Supreme Court has upheld the rights of women in areas of employment, sexual harassment, and issues such as property rights, maintenance and child custody in personal laws, it has declined from striking down many discriminatory provisions of personal laws, all of which contain an inherent patriarchal bias. Although India is a signatory to the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), it has done so with reservations on those articles that requires the reform of personal laws, especially the sections which require it to take appropriate measures to modify social and cultural patterns of conduct to eliminate prejudice in customary practices (Article 5(a), CEDAW), or to eliminate discrimination against women in all matters relating to marriage and the family (Article 16(1)). Of particular concern are the personal laws relating to family marriage, divorce, maintenance and succession. Most of theseWhen B got married to her husband, she noticed that he issues are not covered under a national civicused to take a lot of medicines. When she enquired what code, but are regulated under a number ofthese medicines were for, her mother-in-law told her not to separate religious codes. In most of thesebother about it. She and her husband soon moved to laws, women are not treated as individuals;Mumbai, where soon after, they both fell very sick. They rather their existence is dependant on theirreturned home together, and she was sent off to her parents’ position as mother, daughter, wife or sister ofhouse to be taken care of. While her husband recovered, the male members of the family.her health kept deteriorating. Prior to 1956, Hindu women were not entitledIn spite of being well-off, her in-laws gave no financial to receive property rights. With thesupport, and her medical and other expenses were taken promulgation of the Hindu Succession Act incare of by her brothers and family. After many tests, and 1956, women were given limited rights torounds of medication, she was finally tested for HIV, and the inherit property. The Hindu Succession Actresults were positive. Her husband and his family refused to was amended in 2005 to incorporate moretake her back. Later, her in-laws returned all the furniture gender-equitable measures; however,and money she had brought at her wedding, on the because a written will can supersedecondition that she did not return to her marital home. inheritance rights, it is easy for fathers toHer husband later filed for divorce. She now lives with herfather. 16
  20. 20. restrict the inheritance of their daughters, and husbands of their wives. Muslim women in India come under the Muslim Personal Law (Shariat) Application Act, 1937, which superceded “custom or usage to the contrary” for all property, except agricultural land, as the basis of personal law for Muslims in undivided India, except Jammu & Kashmir. The ’37 Act, by abrogating custom, enhanced most Muslim women’s rights, since typically customs (except among matrilineal Muslims, as in Kerala), were highly discriminatory: some entirely excluded daughters, others placed them (and widows) very low in the succession order. However, under the Shariat, a daughter or a widow cannot be excluded by any other heir and are protected by the overall testamentary restrictions, even though their shares are always lower than that of men. However, the ’37 Act excluded a critical form of property: agricultural land. Later Tamil Nadu, Karnataka Andhra Pradesh and Kerala extended the ’37 Act to include agricultural land. In some states like Maharashtra, Gujarat and Bengal, there was no strong presumption in favour of custom even before the ’37 Act, and the Shariat could therefore be presumed to cover agricultural land. However in other states, example Delhi, Haryana, Himachal Pradesh, Punjab, Uttar Pradesh and Jammu & Kashmir, virtually exclude women from rights in agricultural land. In Uttar Pradesh, non-Hindu women’s land rights are still subject to the UP Zamindari Abolition and Land Reforms Act 1950. Section 171 of the Act, which defines succession to a man’s land, gives primacy to the male lineal descendants. Only in their absence can a widow qualify. Daughters come lower. Tenurial laws in Delhi, Punjab, Haryana, HP and Jammu & Kashmir give similar primacy to male heirs. Tribal women are another category facing substantial disabilities in inheritance. Given the non-codification of their laws, tribal communities are governed by customs which (except under matriliny) discriminate against women. And even the limited customary land rights many tribal women enjoyed historically have been eroding. Even though the rights of women to inheritance have improved to an extent over the last 50 years, there are substantial gender gaps between law and practice. Although women are given the right to own land, most women do not do so, and the few who do are not able to exercise full control over it. A range of factors – social, administrative and ideological – severely restricts the effective implementation of inheritance laws. One of the obstacles, elaborated on by Bina Agarwal (1994) in the context of women in South Asia 13 is a strong male resistance to endowing women, especially daughters with land. Male relatives often take pre-emptive measures to prevent women from getting their inheritance; natal kin are particularly hostile to the idea of daughters and sisters inheriting land, since the property can pass outside the patrilineal descent group. Where preemptive methods fail, intimidation and direct violence is used to deter women from filing claims and exercising customary rights. Women in many parts of South Asia tend to forgo their shares in parental land for the sake of potential economic and social support from brothers. In practice, the evidence on the support that brothers actually provide is mixed – there is evidence of both brothers helping a sister in need, and of their neglect and duplicity. There is also a significant gap between ownership and effective control. Marriages in distant villages make it difficult for women to directly supervise or cultivate land inherited in the natal village. But problems of directly managing land inherited even in the marital village (say as a widow) are compounded in many areas by factors such as the practice of purdah or the more general gender segregation of public space and social interaction; high rates of female illiteracy, and women’s child rearing responsibilities. Moreover, male control of agricultural technology disadvantage women farmers and increase their dependence on male mediation. Often added to this is the threat and practice of violence by male relatives and others13 Agarwal, Bina, Gender and Command over Property, An Economic Analysis of South Asia 17
  21. 21. interested in acquiring women’s land, or pressurization to sharecrop their land, usually at below market rates. Today almost 40% of PLHIV are women, a large number of whom have only one sexual partner, usually the husband and breadwinner. This leaves almost half the PLHIV population without a means of economically supporting themselves and their children when the husband dies. One of the striking features of the HIV/AIDS epidemic is the increase in the number of young widows and their economic dependence on their families of origin after the death of their partners. Many women are forced to return to leave the marital home upon being diagnosed HIV positive or after their partners have died of AIDS. Of these widows, 90% no longer live with their husband’s families after the death of their husbands, only 9% receive financial support from their husbands’ families, and nearly 79% are denied a share of their husbands’ property 14 Of the 10 of PLHIV case studies documented by SAATHII, 9 are of women, 7 of whom are widows of men who died of AIDS. All the women were infected with HIV by husbands, and two are sure that their husbands were infected by HIV at the time of marriage. In fact, one woman has evidence to show that her husband was on ART during the first year of her marriage. All these women, some with children, were evicted from their marital homes when their husbands died, and are now economically dependent on their natal kin. Some of them are entitled to land or shops that were in the husband’s name, but have no access to them, and no papers to prove their rights. In one case, although the woman and her husband had bought the land in their joint names and has papers to prove it, the in-laws have forcibly occupied the land, and constantly threaten her with violence. In another case, although the widow has occupied the land which was in her husband’s name, she has been harassed by a buyer who has illegally been sold the land by her in-laws. R was happily married to her husband. Although the couple lived with her husband’s parents, she and her husband bought a plot of land which was registered in both of their names. The couple went to Mumbai to run a business, leaving the farming of the plot to her father-in-law and her brother-in-law, with the agreement that they would receive Rs. 2000/- per bigha every month as part of their share of the earnings, and on the understanding that they would take over their land on their return. Both husband and wife fell very sick in Mumbai, and had to return home. They were both diagnosed as HIV+, and her husband died soon after. As soon as her husband died, her in-laws evicted her and her four children (two of whom are HIV+) from her marital home, so she rented a house nearby. When she asked for control of her plot of land, her in-laws threatened to kill her if she set foot on the land. LIC is refusing to pay the dues for the life insurance policies in her husband’s name. Today her delicate face bears two long scars on one cheek – she was attacked by a man she had given money to for purchasing some bicycles for her children. When she asked for the money back, he lured her into a dark alley and stabbed her, stole her belongings and has since absconded. Periodically she makes her way from the district of Murshidabad to meet a lawyer in Kolkata to try and get her land back. Her lawyer tells her that if she files a case against her in-laws, the realities of the Indian court system will ensure that she won’t see the land in her lifetime, and advises her to look for political support for her case so that she can forcibly occupy her land, perhaps by paying the police a large sum of money.14 Pradhan and Sunder, Gender Impact of HIV/ AIDS in India 18
  22. 22. 3.4 Analysis of litigation process in India “Access to justice is basic to human rights and directive principles of state policy become ropes of sand, teasing illusion and promise of unreality, unless there is effective means for the common people to reach the Court, seek remedy and enjoy the fruits of law and justice.” 15 The following section analyses sections of the legal system which are critical to fair and equitable access to justice, and finds the Indian Legal system wanting in these respects. Police Justice A. N. Mulla had once commented, "I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force." 16 Police corruption is a violation of law by duty holders who are charged with upholding the law, and this is manifest in many ways. General police corruption includes bribery or exchange of money or something of value between the police and the wrong doer. Other police crimes range from tampering with evidence and threatening witnesses to brutality, killing in faked encounters, sexual harassment, custodial crimes and illicit use of weapons. Power tends to corrupt, and absolute power corrupts absolutely – a truism on the misuse of authority which could have been coined with the Indian Police force in mind. As shown in section 3.2.3 of this document on sex workers, the police use laws to persecute the very people the laws are designed to protect, while letting perpetrators of serious crimes untouched. Police’s complicity in violence can be seen in the following accounts of transgender persons recorded by SAATHII. In three of the cases, the victims were in public places when they were accosted by members of the public who directed obscenities at them, enquired about their sexuality, and intimidated them. ‘A’ was“Suddenly another man held me by the back of my neck, harassed by hawkers while shopping withpushed me down on my knees and started coercing me to his friends in a crowed Kolkata locality, thensuck his penis, and in utter despair I noticed that six others manhandled, his friend beaten up, and theirwere standing in line with their pants down. As they belongings and money stolen. The policecontinued doing so, one of them intermittently tried to push refused to lodge an FIR, saying that thereme into a ditch, all the while using profane and obscene were no rules to lodge an FIR ‘in such aoaths. After about 15 or 20 minutes, one of them urged the case’. It was only on the intervention of aothers to stop, probably overcome by a sudden bout of senior police officer from another policeconscience and left us there, hurt and traumatized.” station, that action was taken. However, although the victims agreed to settle out of A victim’s description of an incident which court and were compensated monetarily, police refused to recognize as a sexual assault most of the perpetrators went unpunished because they were well connected to the local party counselor. In another incident, ‘A’ and a friend were harassed while walking down a road when they were accosted by three or four men who demanded that they should go with them to the local political party office. When they refused, their clothes were torn off, they were sexually assaulted and were set free only after a prolonged struggle after one of the victims crying and screaming began to attract attention. Again, the police refused to record an FIR.15 http://www.lawyerscollective.org/magazine/aug-sept-2008/feature-116 http://www.legalservicesindia.com/articles/bar.htm 19
  23. 23. In another case, a peer educator of a Kolkata based NGO and his friend were cycling down a highway on the outskirts of Kolkata, when they were accosted by a group of 9 men, who variously hit, boxed and fondled and sexually assaulted the two for about twenty minutes. Again, the police refused to register an FIR, saying that the victim had not been sexually harassed and had not met with any serious injury. Finally, after much argument, the police lodged a general diary. Physical and sexual harassment are cognizable offences, and in all the above cases the police are governed by Sections 154 and 156 of the Criminal Procedure Code which requires them to lodge an FIR and conduct an investigation in all such cases; however do not do so. In a particularly tragic case in a small conservative village in West Bengal, a fight between S, a 23 year old transgender person and his 30 year old male lover came to media focus when the police arrested S, and made public the fact that both the youth were homosexuals. Some months later, after S was released, he was betrayed by his lover, and his house was set on fire late at night by the latter’s uncle and some villagers. S’s body was found on the terrace. The police maintained that ‘S’ had committed suicide. They were even crude and vulgar enough to open up S’s shorts to show his genitals and prove to everyone that he was a man, not a eunuch and he was a perverted homosexual. Evidence shows that ‘S’ could not have committed suicide; however S’s remains one more case of human rights violation in a small town in India where facts are covered up and justice is difficult to come by - especially in cases of alternate love; where the police, local community and their families are against them. The following case clearly demonstrates police complicity in perpetrating harassment of sexual minorities on the basis of an archaic law which was based on Judeo-Christian morality which has no place in the 21st century 17. Two friends were traveling in a taxi having an animated conversation, in which the taxi driver also took part. The cab driver made an unscheduled halt near a bridge, saying that the temperature inside the car was far too hot. Shortly thereafter, a police car stopped near the cab, and the policemen passed comments saying ‘this is a 377 case’ and ‘we haven’t had a 377 case in a long time’ and ‘this will be big’. They were taken to the police station where they were separated from the cab driver. There was a buzz in the atmosphere of the police station when they arrived with policemen audibly speaking about the ‘new 377 case’. The police, after interrogating the cab driver separately, told the victims that the cab driver had alleged that the victim had propositioned him to do come to his home and do “improper things”, which the victims strongly denied. Throughout the incident, the victim, who worked at an NGO, was in touch with his supervisor on the phone. Finally after some time, the victims were released by the police, although the cab driver left about 10 minutes later, which adds to victim’s certainty that the cab driver and the police were in connivance. The victim believes that it was his obvious connection to the NGO field that secured his freedom and the policemen’s eventual respectful treatment. As a part of the legal process, the police are charged with the responsibility of implementation of judicial orders. However experience shows that even armed with a judicial order, it is customary for the litigant to bribe the police to enforce the order, and in cases where the opposing party either has more financial or political clout, the police can be persuaded not to enforce the litigant’s rights. By ignoring the judicial orders, the police would be in contempt of court, however, few litigants have the strength and ability to endure another round of the judicial process and give in to extortion. In such a highly corrupt environment, the term ‘out of court settlement’ acquires a new meaning – it is easier for a litigant to pay the police and use17 Section 377 of the Indian Penal Code which criminalizes homosexuality. The section states that ‘Whoevervoluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punishedwith imprisonment for life, or with imprisonment of either description for term which may extend to ten years,and shall also be liable to fine. 20
  24. 24. political connections to protect themselves and claim their rights than to enter the legal process. Corruption in the judiciary Police corruption is compounded by corruption in the judiciary. A 2005 countrywide survey of "public perceptions and experiences of corruption in the lower judiciary, conducted by the Centre for Media Studies 18, finds that a 77 percent of respondents believe the Indian judiciary is corrupt. And reports that ‘bribes seem to be solicited as the price of getting things done. The estimated amount paid in bribes in a 12-month period was found to be around 580 million dollars. ‘Money was paid to the officials in the following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to middlemen." The report only covers the lower or subordinate judiciary and excludes the judges of the High Courts and the Supreme Court. There are credible reports that corruption has permeated the higher judiciary as well. In January 2002, S. P. Bharucha, then Indias Chief Justice, said that 20 percent of the higher judiciary might be corrupt. In recent years, several upper court judges have been accused of "irregularities", for instance, in the preferential allotment of valuable land by state governments, and other favours. A corrupt judiciary and a corrupt police force ensure that justice, if it comes at all, comes at a price. Access to the legal process Successful litigation in India is dependant on the litigant’s ability to access courts and sustain a lengthy and often costly legal process. In cases against the government, writs can be filed only in a High Court or the Supreme Court, and for litigants in the rural areas, access to lawyers would mean either being dependent on a local lawyer to interface with a city based lawyer, or having to come to the city to file their cases. The difficulty in accessing justice is compounded in the case of PLHIV, who suffer from multiple violations and would need to file a number of civil and criminal cases in different courts – there are separate courts with separate jurisdictions – family courts, district courts, labour tribunals, courts of appeal, consumer fora and so on. Delays Lengthy delays are an obstacle to justice in the Indian legal system. In 1999, it was estimated that at the current rate of disposal it would take another 350 years for disposal of the pending cases even if no other cases were added. A recent report 19 published by Transparency International states "As of February 2006, 33,635 cases were pending in the Supreme Court; ... 3,341,040 cases in the High Courts; and 25,00,458 cases in the 13,204 subordinate courts. The pending load of cases leads to inordinate delays – cases, especially civil suits, can take up to ten or twenty years to be heard, and in the case of people living with an incurable disease which compromises their lifespan, justice delayed is truly justice denied. Legal Aid Under Article 39A of the Indian Constitution, it is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities. A legal aid system that provides both financial and judicial relief is an imperative for PLHIV – it has been estimated that in lower income families where a member suffers from HIV, approximately 80% of the family income is spent in medical expenses. That leaves precious little for daily survival, let alone an expensive and lengthy litigation process.18 Transparency International Global Corruption Report 200719 Transparency International, Global Corruption Report 2007 21
  25. 25. The government of India has set up national state, district and taluk level legal aid cells, and the high courts and supreme courts have their own legal aid cells, however as the following case recorded at SAATHII shows, there is a vast chasm between what a citizen is entitled to and what a citizen gets. HIV was the wedding gift F got from her husband – unknown to her, her bridegroom was already being treated for HIV at the time of his marriage to her. Apart from having to look after an ailing husband who kept her in the dark about the nature of his illness, F was subject to verbal and physical violence in her marital home, which was a one-roomed place in which she stayed with her husband, parents in law and a sister in law. Her husband lingered for 3 years after their marriage, and it was only three days before he died in hospital that she came to know that he had AIDS – a disease which she had not heard of. As soon as her husband died, her in-laws forced her out of her home, and also tried to sell of a property which was in her late husband’s name – and now legally hers. With the support of the local people and the local Mahila Samiti, F, who by now knew that she was infected as well, managed to occupy the property and has since been living there. The buyer of the property, who is an advocate, continued to stake his claim on the property and filed a suit for partition of the land in the court in 2004. In 2006, F approached the West Bengal State Legal Aid Services for help and was appointed a lawyer, with whom she would be in regular contact to find out the fate of her case. In May 2009, F discovered that the case had been settled ex parte against her in November 2008. Not only had F’s lawyer not represented her case, he had not let her know of the order against her, and by the time she found out, the statutory period of appeal had lapsed. When F contacted the Legal Aid Services to ask for an explanation they refused to acknowledge responsibility.3.5 Legal stakeholders: Know ledge and attitude towards PLHIV issues in West Bengal A quantitative research study was conducted among six lawyers and judges practicing in the various courts in the city of Kolkata. The study was conducted through a semi-structured interview with each respondent, being asked a number of open-ended questions with the objective of exploring the following: - The knowledge of HIV/AIDS related legal issues in the legal community - The attitude of lawyers and the judiciary towards key issues faced by PLHIV3.5.1 Knowledge of HIV All the respondents stated that HIV was highly infectious, however non of them had a clear idea of the ways in which HIV was transmitted. Although all the respondents stated that HIV was transmitted through blood; none of them mentioned the sexual route of transmission until the researcher asked a specific question. All the respondents drew parallels with other contagious diseases, but in different ways. One respondent, when talking about the risk of transmission, said that “HIV is not like ebola or such infections where you can get infected just by being in a room with the person”. Another respondent mentioned that people’s attitudes to HIV were akin to people’s attitudes to leprosy many years ago, and that attitudes would change. Another drew a parallel with venereal diseases. 22
  26. 26. 3.5.2 Knowledge of HIV related legal cases Only one of the respondents knew of an HIV related case in West Bengal – where a woman had obtained a divorce on grounds of the spouse having an infectious disease. None of the other respondents had heard of any HIV related cases in India, and none of them knew of the existence of the HIV Bill. None of the judges had adjudicated in a case which related to HIV issues.3.5.3 Discrimination All the respondents were clear that discrimination on grounds of HIV positive status in any setting was against the law. Most however, were not aware of widespread discrimination, and one expressed surprise that hospitals were turning away HIV positive patients. Most respondents, however, were unclear on how institutions should deal with infected persons. Only one of the respondents stated that he was not sure about all the routes of transmission, and he would not be able to answer any questions adequately unless he was given the information. Once the researcher told him about the methods of HIV transmission, he clearly identified that unless the risk of transmission was quantified in each setting, it is difficult to say how the institution should deal with the situation. All the respondents were of the opinion that it was the job of hospitals to take preventive measures to protect their staff against infection, and that it was not right for hospitals to discriminate against an infected person. However, some respondents felt that just as with other contagious diseases, HIV patients should be dealt with at a specialized hospital for infectious diseases. One of the respondents felt that “Constitution rights are definitely there that you have to give them the rights to medication, but it is not only the HIV patients who are not accepted, there are lots of other patients who are also not accepted, in government hospitals.” Two respondents mentioned the Code of Medical Ethics in this context, and said that it was the duty of doctors to take care of any patient, and to turn away a patient was not ethical. However, they agreed that although it was not ethical of private hospitals to turn away patients, they were within their rights in doing so. When asked about how schools should deal with the issue of HIV, one of the respondents said that “There should be no segregation in schools. In fact knowledge of HIV should be a part of the education system, because children may use drugs and share needles children must be made aware of what precautions they should take. Today’s children have pre-marital sex – so they should be made aware of all the dangers. Why should kids be segregated? Today’s children have to grow up into the responsible citizens of tomorrow, and they must be made aware. Then chances of spread of AIDS will be minimized”. Two respondents however, expressed the view that while segregation in schools was not a fair concept, it was necessary to segregate HIV positive children because of the risk of young children unknowingly transmitting the disease through accidents. These respondents did not feel that children would be adversely affected if they were segregated –the fact that the children would be getting an education was more important. “Increase their stigma, maybe, but against that you are getting an education, a solid education. And it may not appear fair that you are segregating children for one reason or another, and giving them a stigma, and that is something that one would not recommend to bring onto any child, but the thing is you have to balance the rights of one child as against say, forty”.3.5.4 Consent and Confidentiality All the respondents did not see any problem in compulsory testing of HIV in various settings, and many compared HIV testing to any other blood test. One respondent felt that ‘many countries have mandatory testing, and there is no reason why that should not be the case in India’, and one justified compulsory testing for purposes of treatment. All felt that mandatory 23