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Seeking a more equal Bill

The law ministry’s changes to the draft HIV/AIDS Bill have been roundly criticised by lawyers, activists and networks of people with HIV/AIDS. It ignores people's views and dilutes principles of democratic governance, they said in a memorandum of protest submitted to the law minister. Ranjita Biswas looks at the issues involved

On December 10, 2008, the union law ministry located at Shastri Bhavan, New Delhi, witnessed an unusual demonstration. It was staged by representatives of non-government organisations protesting against the law ministry’s proposed changes in the HIV/AIDS draft Bill. The Bill was drafted in 2006 and has been with the ministry for more than a year.  

A signed memorandum to Hansraj Bhardwaj, union minister for law and justice, insisted that certain “dropped” chapters be restored immediately before it is tabled in Parliament.  

The revised Bill, the demonstrators said, works against creating an “enabling environment” for sex workers, those who take drugs intravenously, and men having sex with men -- considered high-risk groups for HIV infection.  

The minister eventually met three representatives from the groups. One of them, Raman Chawla, advocacy officer, Lawyers Collective HIV/AIDS unit, revealed that the minister assured them that he would look at both the drafts, the one from the National AIDS Control Organisation (NACO) and the one prepared by the law ministry “and reinstate the important provisions and make necessary changes”. 

Lawyers Collective HIV/AIDS unit had submitted a draft to NACO in 2006 after consultations with people living with HIV and AIDS, vulnerable communities, women and children’s groups, healthcare workers and other civil society groups. NACO had submitted its modified version to the law ministry in September 2007. 

In their memorandum to Bhardwaj, the concerned NGOs wrote: “The HIV/AIDS Bill 2008…is comprehensive and reflects concerns of all stakeholders. In making changes, the law ministry has ignored people's views and diluted principles of democratic governance.”  

Anand Grover, advocate and director of the Lawyers Collective, feels the revised Bill is “truncated”. In particular, it deletes chapters on prevention and treatment that form the core of the National AIDS Control Programme. It also deletes chapters on strategies of risk reduction and access to free treatment which the government should be obliged to offer as per the original draft Bill. 

According to Chawla, in the new draft of the law ministry, important issues like the special needs of women and children have been ignored, and the definition of discrimination has been watered down. Moreover, a new chapter has been added that proposes the isolation of people infected with HIV, a step which would take us back to the attitude of the 1980s. “Today, as per the National AIDS policy, and in the world as a whole, an integration approach -- that is, integrating the PLHA population in society -- is followed. This isolation policy contradicts it,” Chawla says.  

For example, the draft Bill suggests setting up a surveillance team to identify people in a particular community who have the infection. They would then be reported to a specially appointed health officer, who can enquire about the source of infection, how they got infected, etc. “In short, the health officer will act as an inspector,” Chawla says. This will be a violation of confidentiality, and also open the door to mandatory testing. Today, the international policy on HIV/AIDS is rights-based and such practices will go against it on many counts.  

The drafting of the Bill has gone through various phases since 2002. That year, at the International Policy Makers Conference on HIV/AIDS, New Delhi, the ruling party as well as the Opposition supported the creation of an enabling environment for HIV prevention and control. Recognising that HIV/AIDS is not just a medical condition but also has socio-economic and legal consequences, the conference called for an appropriate rights-based law on HIV/AIDS.  

Subsequently, an Advisory Working Group was set up under the convener of the conference, Kapil Sibal, MP, and chaired by the project director of NACO at that time. After extensive research and taking in all the views and concerns, the draft Bill was prepared by the Lawyers Collective HIV/AIDS unit and presented to the government in 2006.  

Meanwhile, at the 2008 International AIDS Conference in Mexico, the health ministry under Dr Anbumani Ramadoss came out in support of scrapping Section 377 of the Indian Penal Code which criminalises homosexuality. This law leads to discrimination and violation of human rights and affects outreach programmes for high-risk groups like MSM who fear harassment under the outdated law. The health minister’s statement gave a boost to the draft Bill with its particular emphasis on abolishing discrimination.  

Realising the significance of the Bill, networks of People Living with HIV/AIDS (PLHA) and other civil society organisations came together to form a National Coalition for the HIV Bill. The coalition supports and displays solidarity with the health ministry’s efforts to strengthen the fight against HIV/AIDS in the country. As a spokesperson for the Lawyers Collective HIV/AIDS unit points out, “Increasing instances of discrimination against PLHAs, and the inadequacy of the existing legal system to address these issues, underscores the need for a law that can effectively protect the rights of PLHAs.” Though it may seem paradoxical, the fact is that protection and promotion of the rights of the infected and those most vulnerable to the disease is the most effective public health strategy. This is reflected in experiences from other parts of the world where the spread of the disease has either slowed down or been halted through such a public health strategy.  

Moreover, under NACO’s Phase III (NACP-III) programme the creation of an “enabling environment” is one of the proposed activities for reducing stigma and discrimination.  

The summary of provisions in the draft Bill that the Lawyers Collective HIV/AIDS unit prepared on behalf of the concerned NGOs are: 

▪ Right to equality: No person shall be subject to discrimination in any form by the State or any other person.

The “prohibition of discrimination” chapter addresses discrimination in employment, education, healthcare, travel, residence, accommodation, insurance, etc. It also addresses the issue of hate and discriminatory speech in the context of HIV. 

▪ Right to autonomy: Every person has the right to bodily and psychological integrity including the right not to be subject to medical treatment, interventions or research without her or his informed consent. 

▪ Right to privacy: Every person has the right to privacy. Confidentiality must be guaranteed related to HIV-related information, including a person’s HIV-positive status.  

▪ Right to health: Every person has the right to enjoy the highest attainable standard of physical and mental health. Besides the provisions of the right to health under the Constitution, India is also a signatory to the International Covenant on Economic, Social and Cultural Rights and PLHA must enjoy these rights which include access to diagnostic facilities, antiretroviral drugs and nutritional supplements.  

▪ Right to a safe working environment: Every person has the right to a safe working environment. Healthcare workers and other persons who may be at risk of occupational exposure to HIV must be provided this facility.  

▪ Right to information: Every person has the right to information and education relating to health and the protection of health from the State.  

The draft Bill also sets guidelines for Information, Education and Communication programmes and materials. It also looks at the wide-ranging concerns of those working in the field and so includes suggestions on:  

- Protection strategies for risk reduction that are otherwise subject to criminal sanction under various laws, and have severely impeded risk reduction work in the past. 

-Prohibition of quackery in the context of HIV/AIDS. 

-The creation of innovative implementation mechanisms including an institutional grievance redressal machinery, a health ombudsperson and HIV/AIDS commissions. This will be supported by special procedures to be followed in courts, including suppression of identity and speedy trials and proceedings.  

- Special provisions for those who are disproportionately affected by the epidemic, especially women, children, and persons in the care and custody of the State who because of social, economic, legal and other factors are more vulnerable to HIV. 

At present, according to the Lawyers Collective HIV/AIDS unit, the law ministry is in dialogue with NACO to sort out the problems arising out of the new draft Bill. However, Chawla reiterates, “The law ministry has agreed that it will look only at the constitutionality of the law and also agrees that adding or deleting chapters/ provisions in the draft Bill is not its area of operation.”  

(Ranjita Biswas is a journalist based in Kolkata writing mainly on women and gender issues, HIV/AIDS and environment. She is also Editor of Trans World Features) 

InfoChange News & Features, January 2009