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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

        

"[I]t has been recognised 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."

http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm


from the National AIDS Prevention & Control Policy 2002
National AIDS Control Organisation, India

 THE NATIONAL AIDS PREVENTION AND CONTROL POLICY - A COMMENT

In April 2002, the Union Cabinet approved the National AIDS Prevention and Control Policy (NAPCP). The draft policy had been placed before the Cabinet in 1998. The basic framework of the policy remains the same, but there are significant changes that may impact on the nature of the State’s response to the HIV/AIDS epidemic in India. This edition of Positive Dialogue outlines the policy and analyses some of the changes, gaps and progressive developments.

The Epidemic and the Response under the NAPCP

The NAPCP articulates the government’s understanding of the HIV/AIDS epidemic. It states that 15 years after the epidemic started, it has spread from urban to rural areas and from ‘individuals practising risk behaviour’ to the ‘general population’. It recognises that there is a wide gap between reported and estimated cases and that there is virtually no part of the country that remains unaffected by the epidemic. It states that for an effective response, development and human rights need to be addressed through a multi-sectoral collaboration. The NAPCP prioritises human rights protection as an objective and not merely a strategy. Other objectives include reduction of the impact of the epidemic, bringing about a zero transmission rate by 2007, bringing about an enabling socio-economic environment for prevention and control, decentralisation of the programme and working towards a horizontal integration of the HIV/AIDS response with other national programmes relating to health.

Summary of the NAPCP

Strategies - The main strategies identified in the NAPCP relate to prevention, creation of an enabling environment and provision of health care during illness related to HIV. Strategies related to prevention include awareness interventions, blood safety protocols and STD control along with condom promotion. A new strategy that has been included in the final policy is ‘reinforcing traditional Indian values amongst youth and other impressionable groups’.

Policy Initiatives - This forms the main part of the NAPCP. It puts

focus on a multi-sectoral approach and spells out policies on programme management, advocacy and social mobilisation, participation of NGOs and CBOs, control of STDs, use of condoms as a preventive measure, HIV testing, counselling, care and support for people living with HIV/AIDS, surveillance, injecting drug use, blood safety, research and development of medication, indigenous systems of medicine and international co-operation with bilateral agencies and other governments. HIV/AIDS and Human Rights - The NAPCP recognises that the protection of the human rights of people living with HIV/AIDS and of those more vulnerable to HIV is essential in the response to the epidemic. It brings focus on the violations of human rights of people living with HIV/AIDS, prescribes review and reform of the criminal laws in order to ensure that they are not used against vulnerable groups, anti-discrimination laws, access to legal services and a supportive environment for women and children. Issues of specific focus include the right to privacy, ethics of research and access to services and information on rights. A related development is the strategy of harm minimisation and needle exchange prescribed for interventions with injecting drug users.

Implementation Strategy - The implementation of the policy is through the involvement of different departments of the government, decentralisation and collaboration with NGOs especially for the purpose of targeted interventions.

Positive developments

Private sector accountability: The NAPCP prescribes legislation to ensure that testing facilities in private health care comply with ethical guidelines. Up until such action is taken, there are limited legal remedies for violation of rights by the private sector. This commitment to make the private sector accountable is significant especially as 60 to 80% of the people in India are estimated to access private health care.

Access to medicines and treatment: The NAPCP recognises the need for providing anti-retroviral treatment (ART) to people in need. The policy states that the government is presently not providing ART due to ‘prohibitive costs’ and that the government is dropping excise and customs duties on these drugs to make them more affordable. The NAPCP undertakes that the government shall review its policy on ART from time to time in order to assess the affordability and provision under the policy. It falls short, however, in identifying essential steps to make ART and other new treatments affordable, such as intervening in amendments to Patent laws, the Drug Price Control Order and negotiations at the WTO relating to the TRIPS agreement.

 

Understanding of sexual behaviour under the NAPCP

A clear understanding of sexual behaviour is vital for the efficacy of the national response to the HIV/AIDS epidemic. Unfortunately, the understanding in the NAPCP seems to be through a normative/moral framework. This hinders the understanding of diversity in sexual behaviour and values around sexuality. The norm in this structure, sex only within marriage, is portrayed as an all-pervasive reality, and all sexual behaviours outside of this norm are treated as aberrations to be addressed. For example, the understanding of vulnerability of migrant populations is based on the presumption that multi-partner penetrative sex is ‘caused’ by staying away from the family for long periods of time. This negates the possible practice of multi-partner and non-marital sex being prevalent in the communities of origin. Similarly, it links risk behaviour amongst men who have sex with men and people in commercial sex to urbanisation, ignoring same sex behaviour and commercial sex in other contexts. There is a need to step outside this understanding and deal with the epidemic in an open manner by understanding sexuality outside this normative framework.

A reflection of this assumed normative framework is the strategy of ‘reinforcing traditional Indian values amongst youth and other impressionable groups’. ‘Traditional values’ are subjective in nature. Sexual mores, norms and values in one community are different from those in another, whether defined in terms of class, caste, religion, region, state, sexual orientation or gender identity. Defining traditional Indian values would mean the imposition of the norms recognised in one segment of the population over the rest. Is it within the state’s mandate to ‘reinforce’ such definition? Apart from the grave political implications of this strategy, it must be recognised that this moral framework has no place in a public health policy document. If, for example, ‘abstinence’ before marriage and ‘fidelity’ thereafter are considered as the sexual mores permitted by traditional Indian values, reinforcing these values would increase stigma related to HIV/AIDS. It is already clear that increasing stigma will only push the epidemic underground. Increasing stigma will also mean the further marginalisation of more vulnerable groups, such as men who have sex with men, hijras, sex workers, castes involved in sex work, who would fall outside the normative framework defined by the dominating morality. It is doubtful that this strategy will bring about behaviour change and a matter of concern that the government has chosen to use a public health policy document as a political site.

Change in policy on Partner Notification

The draft policy on disclosure of HIV status to the sexual partner of a person living with HIV/AIDS was to encourage her/him to make the disclosure her/himself and to behave responsibly. The NAPCP makes a shift in this regard and states that the disclosure is ‘invariably’ to be made by the attending physician, but that the person should also be encouraged to inform her/his family in order to get proper home based care and support from them. This perhaps is an attempt to bring the policy in line with the Supreme Court ruling in the case of Mr ‘X’ v Hospital ‘Z’, which states that the physician does have an obligation to protect a third person at risk, in fulfilling which, it would be permissible for her/him to breach the duty to maintain confidentiality. Disclosure is thus a matter of discretion that permits the doctor to balance out the public interest in maintaining confidentiality and the public interest in protecting third parties from infection. The policy unfortunately prescribes the manner in which this discretion is to be exercised. There is an urgent need for the government to review this policy in terms that are more focussed on public health.

Testing in the Armed Forces

Although HIV testing as a prerequisite for employment is not permissible in any other sector the policy makes an exception for armed forces, where before employment, HIV screening may be carried out ‘voluntarily with pre-test and post-test counselling and the results may be kept confidential’. This policy of permitting mandatory but informed testing is a contradiction in terms. A person who after pre-test counselling decides not to take the test may be eliminated as a candidate for employment. The grounds for permitting such discrimination by the state are not explained.

Conclusion

The NAPCP is a mix of things, with significant positive and negative implications. It puts a focus on human rights protection as an essential aspect of the response but falls short in actually articulating a holistic rights-based approach to the epidemic. Human rights of marginalised populations and of people living with HIV/AIDS cannot be protected or promoted in isolation. Attempting to create an enabling environment would mean not just protecting ‘victims’ from discrimination, harassment and violence, but also creating spaces within the mainstream for recognition and acceptance of diversity in behaviour, values and realities. Various parts of the NAPCP, as discussed above, are antithetical to the creation of such spaces. Perhaps this is the effect of putting a policy based on an attempt to understand a complex social, legal, economic, cultural and medical phenomenon as the HIV/AIDS epidemic through a process of modification by political interests. Another aspect worth examining is whether the NAPCP fulfils India’s obligations as signatory to the UN Declaration of Commitment on HIV/AIDS, 2001. It appears to have fallen short in many aspects. Finally, it is necessary to recognise that the NAPCP creates enough opportunity for interpretations, interventions and work that could be affected in the interests of public health and human rights.

Aadesh adalat ka: The Delhi High Court recently passed a positive judgement related to discrimination based on HIV status in employment. The petitioner, a constable in the BSF, tested HIV positive seven years after joining service. He was medically boarded out from service two years later with 70% disability under BSF Rules and without pension. He would have had a right to pension if he had completed 10 years of service. The petitioner was fit to perform his duties and the BSF made no efforts to investigate whether he could be allotted alternative duties. Further, the BSF placed the petitioner in ‘Category EEE’, which implies a 100% disability, but had boarded him out as having 70% disability. The amount of disability pension accruing to a person depends on the percentage of his disability. The petitioner filed a writ petition praying that he be reinstated in service or be provided alternative employment or be granted pension accruing to persons with 100% medical disability. The respondents argued that granting such pension to the petitioner would be bestowing ‘a premium for his sexual deviance and recklessness’. The Delhi High Court held that it was inconceivable that a person would voluntarily acquire HIV in order to get a disability pension. It also stated that in the context of the epidemic, innocence or guilt loses all relevance. The Court held that providing medical benefits and support to people suffering is one of the essential functions of the government and other authorities sourced from government funds. The grant of the complete pension is no more than fulfilling this basic obligation. The High Court went on to state that the prejudice against persons living with HIV/AIDS (PWA) is clear from the hesitation in granting relief and the extent of relief provided to the petitioner. The prejudice was also clear from the fact that no attempt was made to allot alternate duties to the petitioner. The writ petition succeeded and the respondents were directed to pay invalid pension along with interest and costs of the petition to the petitioner.

Amendments Proposed to Matrimonial Laws

The National Commission for Women in its recommendations for reform in the Special Marriage Act, 1954 (SMA) and the Hindu Marriage Act, 1955 (HMA) has suggested inter alia the following measures:

1. Inclusion of HIV/AIDS as a specific ground for divorce

2.      Mandatory medical examination of the parties to the marriage keeping the spread of HIV/AIDS in mind

The existing SMA and HMA already provide the option to seek divorce on account of the spouse’s HIV status under grounds of "suffering from venereal disease in a communicable form". Inclusion of HIV/AIDS as a specific ground for divorce does not serve any purpose, instead it is discriminatory and further stigmatises the disease.

The latter recommendation is on the same lines as a proposal mooted recently in the Goa Legislative Assembly to make HIV/ AIDS testing mandatory for couples prior to registration of marriage. Pre-marital mandatory HIV testing is a short-sighted and exclusionist measure with negative public health outcomes.

In the Indian context, where most marriages take place under scrutiny of the family and community, making HIV testing mandatory will result in violation of individuals’ rights to bodily integrity, confidentiality and non-discrimination. In practice, this isolationist strategy will drive the epidemic underground. Premarital testing does not prevent the spread of infection to the unmarried sexual partners of PWA. Further, this measure is oblivious to the realities of extra marital sex and risk of infection therein. This is particularly true in the context of women, whose vulnerability to HIV will get exacerbated. The spouse’s HIV negative certificate will create a false sense of security and further diminish a woman’s ability to insist on safer sex. Women will be at increased risk after marriage, as safer sex will become more difficult to negotiate. In this context, the intended public health objectives are not likely to be achieved.

 

Inclusion of anti-retrovirals (ART) in WHO’s list of essential drugs

In a significant development that could enhance access to affordable treatment for PWA, the WHO endorsed the inclusion of AIDS medicines in its Essential Medicines List. Treatment guidelines for standardised and simplified administration of ART were also announced.

Inclusion of AIDS drugs in the list has been long sought by activists demanding the right to treatment for PWA in resource poor countries. The announcement is expected to scale up treatment initiatives and encourages governments in developing countries to expand national prevention and care programmes by including ART.

Violence against sex workers in Karnataka

(Contributed by Priya Jhaveri on behalf of SANGRAM/VAMP)

Karnataka was recently in the news for outrageous acts of violence against women in sex work. The Veshya AIDS Mukabla Parishad (VAMP), a collective of women in prostitution, bought a small piece of land in Nippani, Belgaum district, in January 2002, to carry out their HIV and STD awareness programme. VAMP decided to hold regular weekly meetings in this space. The violence started after the second meeting when local corporators decided that the women were defiling the ‘pure and sacred’ space, were a bad influence in the neighbourhood and were ‘promoting prostitution’. The main leaders, Meena Seshu and Shabana Kazi were threatened with death if the meetings continued. A series of violent acts followed, including an incident where about 25-30 boys with swords and bamboo sticks beat up people who dared to pass through the street and one where an armed mob of 70-odd ruffians threatened and rattled the doors of a few of the women. To all this, the police turned a blind eye. When Shabana and a few others fled to the police station to file an FIR and ask for police protection, they were refused, abused and sent back. Nippani Circle Police Inspector Satish Khot made it clear that his reason for refusal to file the complaint was that "these women are veshyas (prostitutes) and not ‘normal citizens’". In statements to a member of the press, Inspector Khot abused and threatened the use of physical and sexual violence against the sex workers and also the use of the Immoral Trafficking (Prevention) Act, 1956 against them. Fearing for their lives, 30-odd women have fled to neighbouring districts, where they have been living in temporary shelters ever since.

The campaign for the rights of women in prostitution has taken up the Nippani incident as a human rights violation with the Chief Minister of Karnataka, the State Women’s Commission, the National Commission for Women (NCW) and the National Human Rights Commission (NHRC). The campaign’s demands include suspension of the Nippani Circle Inspector, action against the local police leaders and goons, protection for the women to go back to their homes and a review of attitudes and actions of all police officers. The NHRC has ordered the State Governments and the Director Generals of Police to inquire into the matter, punish the guilty, and provide protection to the women to continue their work in Nippani. The Chief Minister of Karnataka has responded to SANGRAM, an NGO that has worked with VAMP and has promised action. An inquiry has been made but no action has been taken against Inspector Khot.

On and after 9th April a series of protests took place in Sangli and Belgaum. These included a rally in which over 1000 women in prostitution took to the streets for the first time to demand justice, followed by a protest march of more than 200 activists from women’s organisations, to the Inspector General’s office at Belgaum on the following day. The main demand was that action be taken on the inquiry report that had already been submitted in March. At a sit-in at the IG’s office, Additional SP Belgaum admitted that the women of Nippani had been wronged and promised the organisations a meeting with the IG in April. He also guaranteed police protection to members of VAMP to return to their homes - and that VAMP could continue its work in Nippani. None of these actions has been met and no further action has been taken since. The women continue to live in exile, in difficult circumstances away from their homes and their livelihoods. Attempts to return have been met with further violence. VAMP has resumed its Nippani meetings, but there is no real protection for the women to return to their homes. Women in prostitution are women who are entitled to the rights and dignities that other women enjoy. Violence against women in prostitution must be taken up as an issue of violence against women.

Contributions by Tripti Tandon, Sumita Dass and Akshay Khanna

Monthly Drop-in meeting

Lawyers Collective HIV/AIDS Unit holds monthly drop in meetings on the first Thursday of each month. The meetings start at 4.30 p.m. at the Delhi Office and at 5.00 p.m. at the Mumbai Office. The objective of the meeting is to share experiences, information and discuss issues of concern. We invite your active participation in these meetings. Lawyers Collective HIV/AIDS Unit provides legal aid and allied services for people affected by HIV/AIDS. The main objective of the Unit is to protect and promote the fundamental rights of persons living with HIV/AIDS, who have been denied their rights in areas such as:

·        Health care

·        Employment

·        Terminal dues like gratuity, pension

·        Marital rights relating to maintenance, custody etc

·        Housing

The Unit is involved in initiating public interest litigation on issues like the right to marry, confidentiality, access to health care, safe blood supply, quacks, etc. Lawyers Collective HIV/AIDS Unit also conducts workshops on legal and ethical issues relating to HIV/AIDS for people living with HIV/AIDS, lawyers, judges, health care providers, NGOs etc.

 

Please send your comments and queries to the addresses given below. Those affected by HIV/AIDS seeking legal aid, advice and support are welcome to contact us at:

Lawyers Collective HIV/AIDS Unit
7/10, BOTAWALLA BUILDING, 2ND FLOOR
HORNIMAN CIRCLE, FORT
MUMBAI - 400 023
TEL: 22 267 6213/9 FAX: 22 270 2563
E-MAIL :
aidscaw@bom5.vsnl.net.in or aidslaw@vsnl.com
Hours : Monday – Friday : 10:00 a.m. – 7:00 p.m.
Saturday : 10:00 a.m. – 4:00 p.m.