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Emancipation through legislation?

By Isabel Goodman

For too long, the state has recognised and sanctioned the dominant sexual ideology alone: of sex only between differently-sexed, married and monogamous partners. Those outside of this realm -- including men who have sex with men and sex workers -- are forced into a furtive, unsafe sexual environment. The proposed HIV/AIDS Bill seeks to protect vulnerable groups and provide for health-based interventions

Vulnerable groups: Sex workers have little social protection, and no labour, safety or health safeguards.
On World AIDS Day 2005, the prime minister publicly recognised, for the first time, the need for Indians to overcome their inhibitions about talking honestly about sex, so that successful strategies for reducing transmission of HIV -- including honest sex education and the promotion of condoms -- could be adopted.

The speech was significant because it opens the door for honest conversations about sexuality and sexual identity. For too long, the state has recognised and sanctioned only the dominant sexual ideology: of sex only between different-sexed, married and monogamous partners. Those outside of this realm have been Other, vectors of HIV who threaten the mainstream population. In this climate, those at the margins face discrimination and isolation.

With the harm inherent in stigmatisation come material harms too. Discriminated groups are less likely to access information, service networks, employment and other social goods. They are therefore more vulnerable to HIV infection. And, identified as such, the discrimination against them is perpetuated. As a result, people who face stigma go underground; they hide their identity, they deny their HIV status, they avoid public services, including testing, that might identify them as within the stigmatised group. Forcing vulnerable groups underground prevents open HIV interventions and contributes to the spread of the virus. 

Protecting the rights of those who are HIV-positive or those who are particularly vulnerable to HIV, then, is good public health strategy. It enables people to access the information and services they need to protect themselves and others from HIV transmission, and to take care of themselves when they are HIV-positive. This is the rights-based approach. It accepts that legally acknowledging the rights of all creates a (relatively) non-discriminatory environment where people are protected in achieving what they need and desire.

The Lawyers Collective HIV/AIDS Unit (LCHAU) has undertaken a project to draft legislation tackling HIV/AIDS and the issues surrounding it. The aim is to reduce stigma, violence and inequity by promoting the rights of people living with HIV/AIDS, those affected by it and those vulnerable to it. It was felt that legislation would provide clarity, consistency and broad, binding equality rights. The proposed Bill is intended as an inclusive measure that deals realistically with the epidemic, rather than relying on assumptions of what sexual practice is or should be. It may be an important first step in the prime minister’s call to act against HIV.

Key provisions of the draft legislation

The proposed Bill expands on the rights in the Indian Constitution to equality, autonomy, privacy, health and a safe working environment.  Cumulatively, it adopts a broad risk-reduction strategy aimed at reducing group vulnerability.

Vulnerability is the result of, and enmeshed in, various types of discrimination, much of it legally approved. Indian law continues to criminalise “unnatural” sex under the infamous Section 377 of the Indian Penal Code. Although the section is apparently gender-neutral, it is used against men who have sex with men, with the result that men are impeded in realising their sexual identity, inhibited in when and where they can have sex, and are pushed into a furtive, unsafe sexual environment. They are labelled criminals and denied social, mental and physical support structures. This denial and neglect makes them vulnerable to HIV infection, and also to blackmail, harassment and violence from different sectors including the law enforcement agencies.

The state is also partly responsible for the vulnerability of sex workers. Regulation of sex work is mainly through the provisions of the Immoral Trafficking (Prevention) Act (ITPA).  Although the Act purports to target trafficking, it contains no provisions dealing with trafficking, coercion and exploitation. Instead, it creates a paternalistic regime whereby sex workers are either victims who must be “rescued”, or deviants who must be punished. The Act does not criminalise sex work per se, but all related aspects: brothel-keeping, soliciting and practising prostitution within the vicinity of a public building. The latter two offences account for 90% of convictions under ITPA. 

Sex workers are provided very little social protection. Their means of livelihood enjoys minimal respect and is just short of criminal.  This opens them up to police harassment and public disgust. They are without the protection of labour, safety and health safeguards. To the extent that they organise or negotiate safe sex methods, they do so without the support of the state. The law fails to create participative or self-regulatory methods. The proposed Bill mandates a reconsideration of all legal provisions that perpetuate stigma, and calls for legislative change.

Apart from seeking to change the legislative climate, the proposed law seeks to protect vulnerable groups and provide for health-based interventions.  Interventions including the distribution of condoms, clean needles and sterilising equipment are risk-reduction strategies that cannot be impeded. But people are also expected to take responsibility for their behaviour: the proposed Bill includes a duty to prevent transmission to another by notifying a sexual partner of one’s HIV status, engaging in safe sex practices, or sterilising drug paraphernalia that is to be shared. This provision creates a duty of care that, if breached, may allow for delictual damages to be claimed. The provision is supplemented in criminal law by provisions of the Indian Penal Code that render reckless transmission of a dangerous disease a crime (Sections 269 and 270).

People can only be expected to meet this duty if they know how to prevent transmission. The proposed law mandates increased education on sexuality, HIV transmission and sexual health. In particular, it introduces mandatory counselling prior to marriage.  This is only one of several measures aimed at protecting women. Women are far more susceptible to HIV infection than men, for biological, social, cultural, economic and political reasons. Once infected with HIV, women also face acute economic risk. Particularly, their marital status may be denied and they may be kicked out of their homes.  In addressing this, the proposed legislation provides for the compulsory registration of marriages and provides a right of residence in the family home, even where the relationship is a domestic partnership akin to marriage but not registered, or is a family arrangement.

The rights of HIV-positive pregnant women are promoted by providing a right to information and counselling that will enable them to make informed decisions about whether to terminate their pregnancy or have children (both choices being regarded as legitimate), and to access HIV treatment and health facilities. Importantly, the proposed law prohibits forced sterilisation or abortions based on HIV status. It contains provisions on sexual assault -– to be read along with the provisions of the Domestic Violence Act -– and provides for prophylactic treatment of womenwho may have been exposed to the virus through sexual assault. Simultaneously, women’s autonomy of choice is protected, since no sexual assault may be reported without her consent. 

Children are vulnerable to HIV, either through their own infection or because family members are infected or have died from AIDS-related illnesses.  The current law in India provides a uniform age of consent of 18 years for all children, regardless of their maturity or social context. This disempowers children by requiring guardian consent that may not be available and preventing them from making their own choices with regard to treatment and testing.  The proposed Bill seeks to remedy this by providing for consent based on maturity and understanding, demonstrated through practical factors like living arrangements. It further recognises that older siblings or a person who has taken on a practical guardian role without any blood connection to the child should be regarded as legitimate guardians.  These provisions are important for AIDS orphans -– children whose parents have died from AIDS-related causes are left without adult, familial guardians.  Without recognition of de facto guardians, children may be unable to access treatment, get ration cards or reap the other benefits of the welfare state. 

The general welfare of those infected with or affected by HIV is also a consideration of the proposed law. Travel subsidies to allow those who are sick to access hospitals are provided for; health insurance and social security schemes for vulnerable groups must be planned and implemented.  Access to cheaper medicines is promoted by creating tax-incentive and exemption schemes and encouraging research and development into new drugs. Further, the proposed HIV/AIDS authority is empowered to enter into agreements with foreign states or international organisations, presumably including arrangements for the parallel import of drugs and negotiated treatments where such would be cheaper than products available in India. 

Grievance mechanisms within businesses are created, and a health ombud is tasked with considering the needs of the vulnerable and overseeing complaints to ensure emergency situations are dealt with.  Since vulnerability is associated with social disempowerment and poverty, these measures are crucial for combating systematic discrimination.

Discrimination against protected persons is specifically prohibited. Protected persons are people living with HIV/AIDS, anyone who is or is perceived to be at risk of exposure, and anyone who is or is perceived to be a member of a group vulnerable to HIV infection. This covers all vulnerable groups discussed and anyone who is assumed to be a member of a vulnerable group, even if they are not. It prohibits both direct and indirect discrimination; either the intention to discriminate or a disproportionate impact would be sufficient to show that the provision is violated.  In addition to listing specific instances of discrimination -- the failure to appoint to employment on the basis of sero status, or compulsion to take an HIV test, for example -- the proposed legislation generally prohibits actions or omissions that amount to discrimination, or anything that compels a person to act in a certain way. In judging discrimination, it is necessary to consider existing patterns of discrimination, including patriarchy.

The provision is significant for a number of reasons. Firstly, it broadens the equality protection of the Constitution to bind non-state or private individuals. Stigmatisation often takes place at the level of personal interactions or by private companies. The legal gap in not regulating these relations is therefore breached. Secondly, the proposed law regards existing inequalities as a relevant and remediable state of affairs, rather than as an acceptable and unchangeable background.  In taking systemic discrimination into account, the legislature and the courts are entitled to put affirmative measures into place to bring about social change. Positive discrimination measures to ensure equal opportunity are specifically allowed.  Thirdly, there is a provision that explicitly forbids hate speech or propaganda against protected persons, ensuring that both deed and expression that restrict their enjoyment of rights are curtailed.

To protect privacy and the individual’s autonomy of choice, testing is highly regulated. Mandatory testing is disallowed except in a very narrow set of circumstances, primarily ordered by a court.  Testing must be accompanied by counselling and be undertaken by professionals. Anonymous testing must be available. The state may do surveillance testing only where results are not linked to the person’s identity. These measures ensure that people going in for testing are protected from having their identity publicised. They are empowered to reveal their status when and to whom they choose. No person can be forced to disclose any HIV-related information.

The exception to this lies in the difficult area of partner notification. There is a significant risk of further transmission of HIV if a person who is HIV-positive does not plan to notify his or her partner of his/her HIV status. In such cases, a healthcare worker or counsellor knows that the partner may be infected without their intervention.  In such a case, the proposed law provides a duty to disclose to that partner the risk of transmission.  However, such disclosure can only be made where the health practitioner has counselled the HIV-positive patient to notify himself, he has refused to do so and the health practitioner has warned the patient that she plans to notify the partner herself. A health practitioner is exempted from partner notification if she suspects that such disclosure will put her patient in danger of domestic violence or harm. The measure is therefore a carefully curtailed breach of confidentiality only where it is necessary to protect another from transmission.

Conclusion

The law is not just an enforcement system; it sets normative values that shape how people see society and those within it. The proposed HIV/AIDS Bill is an important instrument for change. It seeks to recognise the range of practices and identities that exist in India, and make room for them to co-exist in a manner that reduces risk and encourages education and talking about sex, in line with the prime minister’s call. 

The proposed Bill creates an enabling environment with more information available for people to make choices for themselves and understand those of others, more services that can support their lifestyles, and legal protections that they can access as need and choice counsel. It is geared for use by the public. Its provisions do not give the state power over information, or empower law enforcement agencies to commit further harassment.  It shifts the focus on HIV into the public realm, but maintains the power of choice firmly in the private.

The emancipatory potential of the proposed HIV/AIDS Bill is enormous. What is required now is the political will to bring this promise into effect.

(Isabel Goodman is a Harvard Henigson Human Rights Fellow, completing her fellowship at the Lawyers Collective HIV/AIDS Unit)

InfoChange News & Features February 2006