http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm
Under the Indian Constitution, equality, equal protection of laws, fundamental freedoms and the right to a wholesome life should be available and accessible to each and every person. Restrictions on these rights can only be on strictly followed and fair bases and in the interest of society at large. This means that the interests of society are considered more important than the rights of individuals in certain contexts. For example, the freedom of movement of a person being penalised for committing a murder is compromised in favour of the interests of the rest of society when that person is imprisoned. Even this compromise must be through a process that satisfies principles laid down in the Constitution, such as the right to a fair trial and the right against self-incrimination.

In reality, however, fundamental rights are the privilege of people who are in a position to exercise them. Marginalised persons in society, on the other hand, have to face up to many social, economic, cultural and political factors that impede their access to these rights. Marginalisation of ideas and experiences (the process of making certain ideas and experiences less important or acceptable than others) is also a reality that hinders exercise of rights by these sections.

Criminal law, which necessarily has implications on access to rights, has been considered as an instrument of justice and as a way of addressing inequality and exploitative social phenomena. The criminalisation of sati, dowry and bonded labour are examples of this.

From another angle, criminal law is a tool through which marginalisation is actually brought about. Considering that the natural corollary of criminal law is the restriction of rights, the reasons for which behaviour is chosen as unacceptable reflects the interests being protected. The law dealing with theft, for example, is clearly a way of ensuring that people who "own" resources are not deprived of them by others who do not own such resources. Similarly, where the law declares that heterosexual sex is the only form of sex acceptable, the obvious attempt is to punish alternative sexuality which is not an "option".

Beyond the issue of whose interest is served by a given law is the question of whose perspective the law arises from. This has implications on the manner in which the law attempts to deal with a situation. The Juvenile Justice Act (which is not a strictly 'criminal' law) focuses on taking a neglected child away from her/his environment, rather than attempting to empower the child within that environment. The choice made by the legislature reflects the perspective of an outsider who does not consider it a possibility that there may be empowerment in this environment at all. This class bias, in turn, makes the law ineffective, as it is unsuited to the actual and felt needs of the child.

In any event, criminal law has a particular impact on the lives of people, especially marginalised populations. The fact that it is the marginalised populations who are worst affected by the HIV/AIDS epidemic makes the scrutiny of criminal laws important from a rights perspective. The following three contexts attempt to illustrate these points.

Intravenous drug use and the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

The NDPS Act provides for the prohibition and regulation of cultivation, collection, production, manufacture, possession, use, consumption, transport, export, import (inter-state and in and out of India), sale, purchase etc. of narcotic drugs and psychotropic substances which are enlisted in schedules to the Act. The Act is amongst the strictest laws in India. The punishments prescribed in the Act include death penalty in certain cases and imprisonment up to 20 years. Rules of evidence and procedure are relaxed to make conviction more probable. All offences under the Act are cognisable and there may be no bail except under certain circumstances. Large populations of under-trials in prisons all over the country are detained under this Act. As such, use of drugs listed in the schedule is always a huge risk and is thus an underground activity in most cases.

The criminalisation of the possession and consumption of ganja and charas (which have a history of traditional use) under the NDPS Act, pushed more people into use of heroin and brown sugar, which were flooding the drug market at the time when the NDPS Act was introduced. Subsequently, a fall in availability and quality and the rise in prices of heroin and brown sugar caused a shift from smoking as the main mode of intake to injecting. The use of injectable pharmaceutical drugs that provided relief from heroin's withdrawal symptoms introduced drug users to pharmaceutical drugs. Presently pharmaceutical drugs available across the counter, at affordable prices and without the fears and restrictions of criminal law, are amongst the most commonly abused drugs. Ironically, thus, the NDPS Act has actually changed patterns of drug use to make them more risky in terms of HIV.

In practice, drug dealers and peddlers are rarely prosecuted under the NDPS Act, while the user is subjected to harassment, physical violence, extortion of money and drugs and illegal detention. Apart from the abuse of the powers under the NDPS Act, other criminal laws are used to harass intravenous drug users from the lower economic strata. The reason is that drug users living on the streets are easy targets of the misuse of law. People are picked up on a regular basis and booked for petty crimes to show that action has been taken on any given complaint. In such circumstances, drug users are helpless with no access to legal services and no knowledge of rights. Human rights violations are thus an everyday experience for most drug users.

Police harassment has a serious impact on health and rehabilitation interventions. The police often arrest/illegally detain people undergoing rehabilitation. This problem is compounded in areas where intravenous drug users are a floating population. Police harassment and the fear of police harassment literally chase drug users away from health services and needle exchange programs. There is minimal co-operation from law enforcement agencies even where needle exchange programs are supported by a State AIDS Control Society.

The denial of health services, employment and services necessary for effective rehabilitation is another serious problem for drug users. Intravenous drug use often causes serious health problems that require immediate treatment and may be fatal if services are not provided. Intravenous drug users dwelling on the street have no access to such services. Even where services are available, they are not accessed until the last moment, due to discrimination and the fear of it. This drives the community, HIV and other health problems underground. Further, identification as an intravenous drug user often implies total refusal of treatment, and in some cases, forced HIV testing followed by denial of health care. This is true even in cases of medical emergencies and is largely linked with the fear of HIV amongst healthcare workers.

There is a lack of awareness about HIV and that transmission is possible through sharing of needles. Even where there is such awareness, the fear of police harassment discourages access to clean needles and carrying of personal equipment. Further, for poorer drug users, personal or clean needles are often not affordable.

To counter these problems, needle exchange programmes have been introduced in some parts of the country. Legally, it may be noted, such initiatives may amount to abetment of offences under the NDPS Act. Still, the recognition that there is a dire need for harm reduction programmes has brought about an attempt by some State AIDS Control Societies to implement and support such programmes.

The ITPA is the state's response to the organised sexual exploitation of women (it has been amended to include male sex work only in 1987). It attempts to address both trafficking and sex work with the tool of criminalisation. That this is not the right option is now obvious.

Under the ITPA, sex work itself is not considered an illegal activity. At the same time, all the necessary concomitants, such as soliciting, keeping of a brothel etc. are punishable by law. All offences under the Act are cognisable and significantly, there is no need for a warrant to conduct a search. On finding a person doing sex work, the Act provides for the detention of the person in either a corrective institution or a protective home. The Act also contains provisions for the closure of brothels and eviction of people. As such, the Act provides a wide range of powers to law enforcement agencies, thus effectively criminalising sex work per se.

The powers provided to the police have been misused and manipulated in such a manner that the law itself is an instrument of oppression. Arbitrary police raids, seizure of money and material belongings, physical assault, torture and rape by police personnel are common experiences of sex workers. This fear of violence coupled with the stigma attached to sex work practically isolates sex workers from the rest of society. Access to information, health services, protection from violence and support is thus minimal. The non-availability of health care and services and the stigma linked with sex work makes even the services that are available practically inaccessible to sex workers as well as their families. In addition, violence by law enforcers makes sex workers even more vulnerable to STIs/STDs and HIV, in social and actual physical terms.

Additional human rights violations including denial of housing, the right to self-worth and dignity and the right to bear and rear children (the definition of "neglected juvenile" in the Juvenile Justice Act, 1986, includes children associated with sex workers) only add to the vulnerability. Discrimination and stigma for their children is all pervasive, debarring a future for them.

On its part, the law has attempted coercive rehabilitation programs that have been ineffective, misplaced and insensitive to the needs of the communities. Enforcement of these programs has led to more human rights violations than actually helping sex workers. In the HIV context, it is necessary to point out that forced testing and detention of sex workers is another common practice. This has had the effect of reinforcing the perception among sex workers that the state is only an adversary. Further coercive strategies are only going to make help and support structures less accessible to sex workers.

Some sex workers, such as those in Calcutta, Pondicherry and Tamil Nadu have been able to organise themselves successfully, often at a national level like the National Forum for Advocacy and Support for sex workers. These experiences have shown that empowerment has aided in promoting safer sex practices such as condom use. Significantly, such organisation and empowerment has also meant that sex workers are in a position to stop the further inflow of children and young persons into sex trade, thus having a direct impact on trafficking. In other parts of the country, however, persons have found it difficult to come out openly as sex workers and form collectives owing to stigma and the fear of oppression and torture from the police.

While it is obvious that there is a need for the removal of the threat of criminal law in the lives of sex workers, attempts at law reform point to just the opposite. The Maharashtra Protection of Sex Workers Bill, 1994 (a private member's Bill) is a reflection of the insensitivity of the process of law reform to the actual and felt needs. The Bill proposed steps such as mandatory testing, branding with indelible ink and quarantining of sex workers. There was a similar Bill mooted in Karnataka. Fortunately, the Governments in both states did not support these Bills.

Section 377 of the Indian Penal Code criminalises 'sexual intercourse against the order of nature'. Section 377 (377 for short), which requires penetration, effectively criminalises all forms of sexual intercourse other than penile-vaginal intercourse. It is specifically used to target MSM. It provides for punishment, which may extend to imprisonment for life or to imprisonment for a term extending to ten years.

The expression 'against the order of nature' implies those forms of sexual intercourse that do not result in procreation, that is the birth of a child. 377 was passed during Victorian times when the popular notion was that sex is meant only to beget children and not for pleasure. Therefore all penetrative sex other than penile-vaginal sex would possibly attract the penalty of 377. Any form of sexual expression inter se men is thus criminal.

377, apart from being against the fundamental rights of sexual minorities, has the effect of pushing same sex behaviour underground and causing risky sexual practices. The absence of safe private spaces pushes MSM into unsafe 'public' spaces. This makes MSM vulnerable to harassment and abuse by the police. Instances of physical and sexual abuse, extortion and blackmail are common experiences. The fear of criminal law in this context implies that sex is often hurried and furtive, leaving partners without an option to consider or negotiate safer practices. This is perhaps the clearest example of criminal law having the effect of making a population vulnerable to HIV.

Other provisions make the impact of criminal law on MSM even worse. Laws relating to nuisance, coupled with local Police Acts, are often used to harass people even suspected of being MSM. Distribution of condoms amongst MSM may be construed as aiding or abetting the criminal/illegal act under 377. Laws relating to obscenity could be used to criminalise dissemination of safer sex information specific to MSM. These laws impede intervention work amongst MSM (activists and NGO workers have often had to face harassment by police authorities), and also discourage collectivisation and formation of support groups within the community. MSM cannot access services like counselling and healthcare, for the fear that the information of their sexuality may open them up to criminal proceedings. All this leads to their increased vulnerability.

It is an established and accepted fact in HIV/AIDS intervention efforts that the best way of preventing the spread of the infection is to promote and protect the rights of affected populations, so that they are empowered to protect themselves. This allows such populations the option of choosing safer behaviours thus protecting themselves. This also lets the populations access services like information, counselling and healthcare, without the fear of discrimination or penal sanction, which is of paramount importance in the control of the epidemic. Exclusionary approaches single out vulnerable populations for targeted criminalisation. Consequently, on the one hand they move underground and therefore make the control of the epidemic impossible, while on the other hand there is no observed change in behaviour for safer options. This increases vulnerability and renders impossible any effective intervention efforts.

The tendency of the state to depend on criminal sanction to 'solve' problems is apparent and, as exposed by the above experiences, ineffective. There is a need, firstly, to move away from this tendency and to look at the context being addressed from a more humane angle. Secondly, if criminal law is to be used, it must be made after considering the practical reality of human rights violations and the propensity of enforcement agencies to impact upon lives of the marginalised. Thirdly, the state urgently needs to recognise the fact that the HIV/AIDS epidemic is a reality which criminal law must be made sensitive to. In this context, traditional theoretical bases of criminal law such as public morality need to be undermined in favour of more practical and strategic ones.

ANOTHER SUCCESS STORY….
The Guwahati High Court passed a judgment with regard to HIV/AIDS in October 2000. This arose from a public interest litigation, which questioned the utilization of government funds that were allocated for HIV/AIDS control in Assam. The court found that state machinery was insufficiently geared to fight the epidemic and was not using the funds allocated to it appropriately. Thus there was an abject lack of interventions in Assam (including failure to constitute a State AIDS Control Society), complete denial of facilities to people living with HIV/AIDS and lack of preventive efforts within the larger community. It was observed that only few counselling centres and inadequate blood banks had been set up although funds had been received by the state government for such purposes. The court issued directives including immediate implementation of NACO policy and guidelines; proper utilization of Central Government funds; inquiry by the state government into the hitherto irregular utilisation of funds; closing down of unlicensed blood banks; opening of AIDS counselling centres at state hospitals throughout the state; adequate equipment and training to be provided to healthcare staff in the medical colleges; effective monitoring systems to be put in place to oversee implementation of the project and measures to avoid discrimination to HIV-positive people in healthcare including appropriate action against doctors and medical staff.

Contributions from Akshay Khanna, Nidhi Dubey, Vivek Divan