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"[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.
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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.
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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.
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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.
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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
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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.
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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.
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