India has a substantially large prison network with the total number
of 1213 and a capacity of 95225 inmates .The total inmate population
against this is 212408 + - 10% at a given point In time, undertrials
constitute 70 to 90 % in various settings and a total turnover rate
is  around 3% amounting to 6372 prisoners released per day .

Generally these prisoners present a wide spectrum of marginalized
population including Petty criminals, commercial sex workers drug
users, migrant labors, slum inhabitants, beggar's, misdirected youth,
and undereducated, increasing their vulnerability to the virus. MSM
activity, drug abuse inside prisons, poor access to sterilized
injectable equipment, absence of condoms, poor psychological support
and ill managed health set up complements the loop of infection.

Indian Studies at surat district prison, where Partnership in sexual
health programme is running and in UP prisons, where Jail awareness
intervention is on, have clearly underlined the extreme vulnerability
of prisoners for HIV during internment.

Historically also, In The US, Castro reported in 1991 that 0.3% of
the 2300 initially negative male Illinois inmates had seroconverted
after spending one year in prison. Brewer also reported in 1988 that
around 60 seroconversions take place annually in Maryland prisons
after two-year stay. In the US federal bureau of prisons, 52 cases of
seroconversions were detected in 1992. In a survey conducted by
Deutsche AIDS Hilfe, about 17% positive participants stated that they
believe they got the infection while in prison and in a case report a
Louisiana inmate who tested positive in 1989 reported that he was
infected through sexual intercourse and needle/syringe sharing with a
cellmate and inside prison they did "every unsafe thing you could do".
Since the publication of ECAPs in March 1994 several evidences of
transmission in Scotland, The US, Australia, France and Thailand and
other countries have been put forward providing compelling reasons
for serious action.

Punishment to a person cannot exceed the sentence awarded to him. If
a person Develops an incurable disease like AIDS during internment,
it may amount to exceeding the punishment or even inflicting capital
punishment on him. It may lead to disastrous consequences for the
individual, his family and the society and the social good for which
the individual's liberty was seized stands defeated.

Health is an absolute right of any citizen and during internment the
total responsibility of this passes to the state. It is mandatory on
the part of state that the individual, during his detention enjoys
the same state of health, if not better, in which he was taken into
custody. Any disease or lack of health due to inept policies or poor
handling of health issues amounts to absolute breach of duty on the
part of state and total breach of fundamental rights of an
individual.

The committee of ministers of the council of Europe at its 81st
session on 26th November 1987 adopted certain guidelines for drawing
up a public health policy to fight against AIDS which inter alia
states that no public health programmes should be initiated unless
backed by secondary facilities (i.e. preventive tools, counseling,
voluntary testing, treatment and psychosocial services).
On 18 Oct.1993 the committee made recommendations to the member
states on criminological aspects of the control of transmissible
diseases including AIDS in prisons and suggested voluntary testing of
HIV together with counseling before and after test.

But the compelling evidences of in prison transmission opened the new
debate on mandatory Vs voluntary testing.

Article 26 of the international covenant on civil rights and
political rights prohibits discrimination on the grounds of race,
color, sex, language, religion, political opinion, national or social
origin, property or OTHER STATUS. The word other status has a very
wide remit as it also includes status of prisoners or individuals HIV
status. Thus these prisoners cant be treated differently from those
who are outside prison implying thereby that the state cannot compel
them to undergo any type of screening without informed consent.

Concerned at the threat of AIDS epidemic Vs. moral concerns, law in
various countries, took its own course. In Queen Vs Dyment case
Supreme Court of Canada ruled that since the blood was taken from the
accused without his consent or knowledge, the act of blood testing
was unlawful .In Queen Vs Pohorestky the Supreme court of Canada
ruled that a violation of the sanctity of a persons body is more
serious than that of his office or even his home. In The U.S.A.
approach was relatively flexible. If a useful purpose could be
identified for mandatory testing it was likely to be upheld by
courts. In Skinner Vs Railway labor executives union and Treasury
Employees Vs Ronne Ralle cases, United States Supreme court
considered the issue of mandatory blood testing  for the presence of
alcohol and drugs and held that when compelling safety and national
security interests are present, the interventions are valid.

In other pronouncements the courts ruled that Mandatory AIDS testing can be
held valid only if the group involved is at high risk of contacting
and/or transmitting AIDS to people. In people Vs CS the appellate
court of Illinois held that " we accept the states general perception
that the testing of individuals belonging to a high risk group for
contacting AIDS virus in the midst of AIDS epidemic is a reasonable
exercise of states police powers". The Spanish law also permits non-
consensual medical interventions. Article 10 of Spanish law of health
interalia allows interventions if non-interventions jeopardize public
health (read as no absolute bar on non-consensual HIV testing)

In light of the above rules and rulings states started evolving their
own strategies suitable to their conditions. In Australia the
scenario is mixed. In the states of Queensland, Tasmania, South
Australia and Northern Territories there is compulsory HIV testing of
all prisoners at the time of entrance, in South Australia and
Tasmania a repeat test is performed to rule out Window Period. In
Queensland retesting is done at 12 monthly intervals. In other states
like Victoria, Western Australia and New South Wales, voluntary
programs are offered. In Victoria a very high rate of success (98%)
has been achieved in voluntary testing underlining the value of a
good counseling unit, if made available to prisoners.

WHO in September 1992 after consultations in Geneva issued elaborate
guidelines to all the member states expecting that each country will
further draw a set of policies for the prevention of HIV/AIDS in
prisons and for the care of interned AIDS cases. These policies and
the strategies applied in the prisons should be developed through
close collaboration among national health authorities, prison
administrations, and relevant community representatives.

Some of the relevant guidelines are-

1.It categorically prohibits compulsory testing BUT provides for
voluntary testing inside prisons with pre and post counseling when
such is available in the community. Unlinked anonymous testing for
epidemiological surveillance should be considered if it is being used
in general population of that country.

2.Prisoners and prison staff should be educated on HIV/AIDS with
special reference to likely risk of transmission in prison
environment.

3.Clear information should be made available on type of sexual
behavior that can lead to HIV transmission. Since penetrative sexual
intercourse occurs in prisons, even when prohibited, condoms should
be made available to them..

4.Prison health services must have adequate material and resources to
ensure that HIV transmission through use of non-sterile material does
not take place.

5.Bleach for drug users to be made available. etc, etc

Given the increasing dangers posed by HIV transmission in prisons
brought into greater focus by reported custodial seroconversions,
there arises a big possibility of legal action against state.
Logically also, if weighed against evidence, there is more reason
than ever to proceed legally to achieve substantive change in
correctional policy. Prisoners may be able to state need for change
in prison authorities and governments behavior by instituting an
action in criminal negligence.

The Tort of negligence will always succeed if the aggrieved is able
to make a case that he/she /they have suffered harm or damage that
was caused by wrongful, careless, or unreasonable act or omission of
other person, entity or institution [read state]. Another way of
putting it would be the plaintiff simply has to prove that
he/she/they were owed a duty of care by defendant and that the
standard of care was not met/being met, and the breach caused/will
cause actual harm.

In prisoners A to XX inclusive Vs State of NSW at the Supreme Court
of Ausralia  when fifty prisoners launched a case against the state
for non provision of condoms, the court observed..   

" His honor sees no reason why in an appropriate case....If the
appellants were to establish by evidence that  the failure by
department to permit their use of condoms constituted a breach of
care owed to them, they might be entitled to injunctive relief"

Even if the state defends itself by saying that transmission was
because of activities not condoned by law such as MSM Activity or
injecting drugs with unclean instruments their case will not stand as
Jugens in Canadian HIV/AIDS policy 1995 rightly Comments " The fact
that prisoners put themselves at risk of contacting HIV by engaging
in sexual activity and drug use, both prohibited inside prisons, is
not an excuse for not acting. "

This sheds sufficient evidence on states vulnerability in such a
legal tangle.

This dilemma will continue unless the Government and prison
department, in Consultation with Civil society representatives and
the judiciary, who actually are really aware of the dynamics of
correctional system, bring out a clear policy on HIV/AIDS and prisons
and apply it on ground. Also, epidemiological surveillance added in
prisons to bring the real picture to fore and plan the quantum of
action required.

Till then simple questions like " testing. to do or not/how to do  or
whether providing condoms amount to condoning homosexuality inside
prisons or not providing amounts to breach of duty and whether
providing needles amount to condoning injecting drug use inside
prisons or not providing amounts to breach of duty" will keep on
haunting all the Prison programme planners in our country.

Dr Manoj Agarwal, MD, DPH, MIPHA
E-mail: dr_manojagarwal@rediffmail.com