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 2009
Solidarity and Action Against The HIV Infection in India

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 HIV
in the context of SAATHII’s Coalition Based Advocacy Project in West Bengal
Prepared by Vahista Dastoor
Research Intern from 2 Year Diploma in Psychological Counselling, Jadavpur University
at Solidarity And Action Against The HIV Infection in India
All 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. Table of Contents
1. Introduction............................................................................................................................. 1
1.1 Background .............................................................................................................................. 1
1.2 Current policies and thoughts on the HIV epidemic ................................................................. 2
1.3 The significance of law in the HIV epidemic............................................................................. 3
2. Methodology ........................................................................................................................... 5
2.1 Research Objectives ................................................................................................................ 5
2.2 Research Design ...................................................................................................................... 5
3. Discussion .............................................................................................................................. 7
3.1 Indian laws regarding key PLHIV issues .................................................................................. 7
3.2 How the law increases vulnerability in PLHIV high risk groups ............................................. 11
3.3 The law and PLHIV women.................................................................................................... 15
3.4 Analysis of litigation process in India...................................................................................... 19
3.5 Legal stakeholders: Knowledge and attitude towards PLHIV issues in West Bengal............ 22
4. Conclusions .......................................................................................................................... 26
4.1 SWOT summary of the Indian legal system ........................................................................... 26
5. Recommendations ............................................................................................................... 28
5.1 Recommendations for SAATHII’s Legal Aid Unit ................................................................... 28
6. Bibliography.......................................................................................................................... 29
7. Addendum............................................................................................................................... 1
7.1 Recent developments on Section 377 of the Indian Penal Code............................................. 1

4. 1. Introduction
1.1 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 Project
1
While undergoing a Two year Diploma Course on Psychological Counselling, Jadavpur University, 2007-2009
1

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 epidemic
1.2.1 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 the
2
Avert.org
3
United Nations General Assembly Special Session on HIV/AIDS
2

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 society
1.3 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. In India, the case of Dominic D’Souza came to the public eye in the late 1980s, when official
agencies, 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 no
access to his family, medical care and legal recourse. D’Souza’s blood had been tested for
HIV without his knowledge when he had donated blood, subsequently the hospital did not
disclose his HIV status to him, instead they informed the police some months later, he was
then detained and incarcerated in an unused TB sanatorium for 64 days under the Goa Public
Health Act, which allowed for mandatory detention of all HIV positive people for an indefinite
period 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, not
because of illegal detention, but because the court considered that the HIV testing procedure
followed was not sufficiently reliable to justify detention. On his release, he attempted to
return to work and found that his job had already been given to someone else, and he was
asked to resign by his employer because of concern that other employees would not want to
work with a person with HIV. Legal issues arose at every point in D’Souza’s case – his blood
was tested without his knowledge or consent, his confidentiality was breached by the hospital
informing the police, he was detained under in-human conditions without access to care, and
was 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 it
has been seen that in place of punitive approaches, legislation that supports the rights of
PLHIV have proven successful in reducing HIV prevalence, especially in populations
considered to be at high risk.
Responses to HIV have brought to the fore the debate between individual rights versus public
health. Policies that infringe on individual rights, such as mandatory HIV testing or public
disclosure of serostatus are defended on the grounds of protecting public health. However,
decades of experience have shown that such an approach undermines HIV containment
efforts. On the contrary, when individuals’ rights are protected, they are more likely to come
forward and be tested, get treated and act responsibly to ensure that they do not spread the
disease.
The disease has also raised questions such as the rights of HIV positive persons to marry
and 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 the
Army, nursing, brothels and prisons, issues of disclosure of serostatus in the family and
institutions have been debated from various perspectives. Each of these questions needs to
be answered within a legal as well as ethical framework, keeping in mind that there can be no
justification 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, these
groups are more vulnerable to human rights violations, hence it is essential to incorporate
protective measures for these groups into any HIV policy or intervention.
Apart from the abovementioned issues, In India, the HIV epidemic has exposed specific social
and legal impediments that contribute to gross violation of the rights of PLHIV and individuals
and communities vulnerable to HIV infection. Issues that arise when dealing with HIV – issues
regarding sex, sexuality, sexual behaviours, gender inequality, economic and social inequality
– are deeply entrenched taboos in Indian society, and the stigma and prejudices associated
with these have intensified by being brought to the forefront.
4

8. 2. Methodology
2.1 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 Project
2.2.2 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. 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. 3. Discussion
3.1 Indian laws regarding key PLHIV issues
3.1.1 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 India's 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 confidentiality
3.1.2.1 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. 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 the
that if at the time of recruitment there is a person workplace in India, with 74% of employees not disclosing
with HIV, I will not take him. I'll certainly not buy a their status to their employers for fear of discrimination. Of
problem for the company. I see recruitment as a the 26% who did disclose their status, 10% reported having
buying-selling relationship. If I don't find the faced prejudice as a result (2006). Although a few Indian
product attractive, I'll 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. 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.
3.1.2.2 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, and
7
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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.
3.1.2.3 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. 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 Epidemic
9
See Section 7.1 Recent developments on Section 377 of the Indian Penal Code
11

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. 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 disapproval
12
Avert.org
13

17. and censure of sex work. The ITPA includes trafficking of and sex work by males, children
and women, but imposes heavier penalties on women as compared to men for the same
offence.
The ITPA also confers wide powers to the police and magistracy. All offences under ITPA are
cognizable 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 including
those carrying on sex work. Magistrates are also authorized to order closure of brothels, evict
offenders and remove a sex worker from any place and prohibit reentry. The Supreme Court
has also held that while a sex worker has the fundamental right to move freely, the restrictions
placed 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 level
Acts on police, beggary, public nuisance, and vagrancy are widely used. For instance Section
110B of the Bombay Police Act, 1951, which penalizes indecent behaviour in public, is used
extensively against street based workers. Male and transgender sex workers can also be
punished under the anti-sodomy law (Section 377). Once a woman is branded with the stigma
of sex work, police assume that she is always working, and feel entitled to arrest her
regardless of what she is doing. Thus sex workers report being picked up while waiting for a
bus, shopping, or simply walking.
The wide powers given to the police through ITPA, local Police Acts and other laws have
been misused extensively to violate the rights of sex workers. Arbitrary police raids, seizure of
money and material belongings, extortion, physical assault, torture and rape by police
personnel are all common experiences of sex workers, and these significantly impact HIV
prevention efforts. Sex workers have been subject to mandatory HIV testing at the instance of
courts, 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 and
HIV/AIDS and segregation of infected persons in state homes, which is antithetical to human
rights principles, especially when the intended objective of such examination or segregation is
unclear. While persons accused of facilitating prostitution under ITPA can and do get released
on bail, ‘rescued’ women kept in ‘protective’ custody are denied their fundamental right to
liberty in ’their own interest’. It is important to note that although the demand for sexual
services 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 worker
or anyone who ‘seems’ to be engaging in solicitation.
In the context of HIV, the criminality associated with soliciting diminishes the ability of the sex
worker to negotiate the terms of services, including rates and condom use. Fear of the police
and restrictions on practice pushes sex workers underground or into ghettoized locations
where they are difficult to reach and vulnerable to abuse. Peer based interventions are
hampered as women carrying condoms are apprehended by the local police on charges of
‘promoting prostitution’. Further, a criminalized environment makes it difficult to reach sex
workers 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 brings
with it the risk of infection via increased exposure to sexual violence and in the unlikely event
of consensual sexual activity within prisons, lack of access to condoms.
14

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 services
3.3 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. 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 these
When B got married to her husband, she noticed that he
issues are not covered under a national civic
used to take a lot of medicines. When she enquired what
code, but are regulated under a number of
these medicines were for, her mother-in-law told her not to
separate religious codes. In most of these
bother 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 their
returned home together, and she was sent off to her parents’
position as mother, daughter, wife or sister of
house 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 entitled
In spite of being well-off, her in-laws gave no financial
to receive property rights. With the
support, and her medical and other expenses were taken
promulgation of the Hindu Succession Act in
care of by her brothers and family. After many tests, and
1956, women were given limited rights to
rounds of medication, she was finally tested for HIV, and the
inherit property. The Hindu Succession Act
results were positive. Her husband and his family refused to
was amended in 2005 to incorporate more
take 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 supersede
condition that she did not return to her marital home.
inheritance rights, it is easy for fathers to
Her husband later filed for divorce. She now lives with her
father.
16

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 others
13
Agarwal, Bina, Gender and Command over Property, An Economic Analysis of South Asia
17

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. 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.
3.4.1.1 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 with
pushed me down on my knees and started coercing me to his friends in a crowed Kolkata locality, then
suck his penis, and in utter despair I noticed that six others manhandled, his friend beaten up, and their
were standing in line with their pants down. As they belongings and money stolen. The police
continued doing so, one of them intermittently tried to push refused to lodge an FIR, saying that there
me into a ditch, all the while using profane and obscene were no rules to lodge an FIR ‘in such a
oaths. After about 15 or 20 minutes, one of them urged the case’. It was only on the intervention of a
others to stop, probably overcome by a sudden bout of senior police officer from another police
conscience 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-1
16
http://www.legalservicesindia.com/articles/bar.htm
19

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 use
17
Section 377 of the Indian Penal Code which criminalizes homosexuality. The section states that ‘Whoever
voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished
with 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. political connections to protect themselves and claim their rights than to enter the legal
process.
3.4.1.2 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 India's 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.
3.4.1.3 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.
3.4.1.4 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.
3.4.1.5 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 2007
19
Transparency International, Global Corruption Report 2007
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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 PLHIV
3.5.1 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.
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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
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