Legal Reference Brief India Protective Laws related to HIV, Men who have Sex with Men and Transgender People This brief was researched and drafted by Ms Ayesha Mago
Abstract: This Legal Reference Brief is an output of the South Asian Roundtable on Legal and Policy Barriers to HIV, held in Kathmandu from 8-10 November 2011 (Roundtable Dialogue). The Reference Brief reports on the results of research on key protective laws focused on HIV, men who have sex with men (MSM) and transgender people. This Reference Brief is not intended to be a complete analysis of the country’s legal and policy framework or social environment. The objective of this Reference Brief is to provide an entry point for discussion on protective laws in India. Reference Briefs were prepared by legal researchers in Bangladesh, India, Nepal, Pakistan and Sri Lanka to support the development of Regional Legal Reference Resource. The Regional Legal Reference Resource documents key protective laws focused on HIV, men who have sex with men (MSM) and transgender people in the abovementioned five countries in South Asia. The two primary objectives of the Regional Legal Reference Resource were to build the capacity of legal professionals to analyze protective laws (focusing on people living with HIV, MSM and transgender people);1 and develop a resource to support legislative drafting, law reform and advocacy initiatives. The Roundtable Dialogue was a joint initiative of SAARCLAW, the International Development Law Organization (IDLO), the United Nations Development Programme (UNDP), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Bank; under an overarching goal to promote an enabling legal environment and strengthen the legal response to HIV in South Asia. The Roundtable Dialogue built upon the momentum of the Asia Pacific Regional Dialogue of the Global Commission on HIV and the Law (February 2011) and supports the human rights commitments of the Economic and Social Commission for Asia and the Pacific (ESCAP) under Resolution 66/10 and 67/9. Acknowledgement: This document benefited from the forthcoming UNDP India report, “A Comprehensive Scan of Laws that Impede Effective HIV Responses in India.” 1 This objective was advanced in the process of researching and drafting national legal reference briefs.
UNDP and IDLO are inter-governmental organizations and these NHRI Legal Reference Briefs are preliminary documents and intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The designations and terminology employed may not conform to United Nations practice and the views expressed in this Publication are the views of the authors and do not necessarily reflect the views or policies of the United Nations, nor of IDLO or its Member States. UNDP and IDLO do not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. The partners welcome any feedback or comments regarding the information contained in the Publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization (and the United Nations Development Programme). These Legal Reference Briefs were supported by UNDP under the South Asia Multi-country Global Fund Round 9 Programme (MSA-910-G01-H).
For further information contact: International Development Law Organization Headquarters Viale Vaticano, 106 00165 Rome, Italy Email: idlo@idlo.int Web: http://www.idlo.int Twitter: @idlonews
United Nations Development Programme UNDP Asia-Pacific Regional Centre United Nations Service Building, 3rd Floor Rajdamnern Nok Avenue, Bangkok 10200, Thailand Email: aprc@undp.org Web: http://asia-pacific.undp.org
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Introduction The first cases of HIV were diagnosed among sex workers in Chennai in 1986. Since then, the country has evolved from a low to a concentrated epidemic.2 In 2009, an estimated 2.39 million people (aged 15-49) were living with HIV, comprising of 0.31% of the population within the age group.3 India is behind only South Africa and Nigeria in terms the number of people living with HIV.4 Unprotected sex (87.4% heterosexual and 1.3% homosexual) is the major route of HIV transmission, followed by transmission from parent to child (5.4%) and blood transfusions (1.0%). Injecting drug use is the predominant route of transmission in North Eastern states; it accounts for 1.6% of HIV infections.5 The HIV epidemic in India is concentrated in nature. HIV prevalence among high risk populations, i.e., female sex workers (FSWs), injecting drug users (IDUs), men who have sex with men (MSM) and transgender individuals and is about 20 times higher than among the general population. In 2008-2009 the prevalence of HIV among IDUs was the highest at 9.19%, followed by MSMs at 7.3% and, FSWs at 4.94%.6 It is estimated that India had approximately 170,000 deaths due to AIDS related illnesses in 2009, up from 140,000 deaths in 2001.7 It is estimated that India had 120,000 new HIV infections in 2009 compared to 270,000 in 2001.8 Although there has been decline in the number of new cases of HIV, the concentrated nature of the epidemic demands that efforts are maintained and that programmes are developed to better improve the quality of life for PLHIV. Recognising legal and policy barriers to HIV prevention, treatment, care and support services in South Asia, the International Development Law Organization (IDLO), the United National Development Programme (UNDP), SAARCLAW, the World Bank, and the Joint United Nations Programme on HIV/AIDS (UNAIDS) convened the South Asia Roundtable Dialogue: Legal and Policy Barriers to the HIV Response at Kathmandu (Roundtable Dialogue). The Roundtable Dialogue was a follow-up to the Asia-Pacific Regional Dialogue of the Global Commission on HIV and Law held during February 2011 in Bangkok. The key outcomes of the Roundtable Dialogue were the identification of law and policy issues that act as barriers to effective HIV responses and the development of recommendations linked to these issues. One of such recommendations was the strengthening of the enabling legal environment for the PLHIV and high risk populations that (i) protects them from stigma and discrimination, (ii) enables them to access critical services, and (iii) ensures accessible and affordable recourse to the law. Pursuant to these recommendations, review and analysis of laws protecting diverse SOGI populations and people living with HIV (PLHIV) in Bangladesh, India, Nepal, Pakistan and Sri Lanka, was undertaken. This Legal Reference Brief is the India chapter to the study. It is proposed that this document will serve as reference resource for future legislative drafting, law reform initiatives and advocacy initiatives with respect to PLHIV and people with diverse sexual orientation and gender identity (SOGI) in India.
1. Legal environment in India – Overview India has a common law system, owing to the British colonization of the country until 1947. Laws are enacted by the legislature and interpreted by the courts. 2
HIV and AIDS Data Hub for Asia-Pacific ‘Country Profiles: India’ available at: http://www.aidsdatahub.org/en/country-profiles/india (accessed 27 June, 2012).
3 National AIDS Control Organisation, Ministry of Health and Family Welfare, Government of India, Annual Report 2010-11 (2011), at 1, available at: http://www.aidsdatahub.org/dmdocuments/NACO_Annual_Report_2010_11.pdf (accessed 6 November 2012). 4
HIV and AIDS Data Hub for Asia-Pacific ‘Country Profiles: India’ above n 2.
5 National AIDS Control Organisation and Ministry of Health and Family Welfare, Government of India, Annual Report 2010-11, above n. 3, 6. 6 Ibid. 7
UNAIDS, Global Report: UN AIDS Report on the Global AIDS Epidemic 2010 (2010) at 192, available at: http://www.unaids.org/en/media/ unaids/contentassets/documents/unaidspublication/2010/20101123_globalreport_en.pdf (accessed 6 November 2012).
8
HIV and AIDS Data Hub for Asia-Pacific ‘Country Profiles: India’ available at: http://www.aidsdatahub.org/en/country-profiles/india (accessed 27 June, 2012).
3
India is a party to a number of international conventions and treaties that are directly and/or indirectly relevant to protection of the rights of PLHIV and people with diverse sexual orientation and gender identity (SOGI). India has a dualist approach to international law and although none of the international conventions or treaties has been translated into domestic law, courts in India have referred to the provisions of these international conventions and treaties in the context of interpretation of fundamental rights under the Constitution of India. India has prepared a HIV Bill that seeks to protect PLHIV and people with diverse SOGI against both state actors and non-state actors. The HIV Bill has been pending with the Health Ministry since 2010. In absence of law or statutes that specifically address the issues of PLHIV and high-risk groups, the courts have been creative in interpreting the rights under the Constitution to ensure the protection of rights of the PLHIV and high risk groups. A significant decision in advancing protections for vulnerable groups in India was made with the 2009 Delhi High Court judgment that declared Section 377 of the Indian Penal Code unconstitutional.9 Section 377 criminalises “carnal intercourse against the order of nature”, or, in effect, same sex consensual sexual activity.10 Another landmark decision concerned a labourer whose contract was terminated on the basis of a positive HIV test.11 In this case, the court ruled that a public sector employer cannot deny employment or terminate the service of an employee living with HIV solely because of his/her HIV-positive status and such discrimination would be a violation of fundamental rights contained in the Constitution of India.
2. International Law and Conventions Relating to HIV/AIDS a. Relevant Provisions India joined the United Nations on 30 October 1945 and is party to several international agreements and conventions, which have detailed provisions on the rights to life, equality, non-discrimination, health and privacy, including the following Conventions: •
the International Covenant on Civil and Political Rights 1966 (ICCPR) – acceded 10 April, 1979;
•
the International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR) - acceded 10 April, 1979; and
•
the ILO Convention No. 111 on Discrimination (Employment and Occupation) - ratified 3 June, 1960.
These conventions contain a number of provisions that directly and/or indirectly protect the rights of people with diverse SOGI and PLHIV, which are listed below: •
Non-discrimination: Article 26 of the ICCPR provides “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”12 The United Nations Human Rights Committee (HRC), has suggested that discrimination should be understood to imply “any distinction, exclusion, restriction or preference … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”13
9 Naz Foundation (India) Trust v. Government of NCT, Delhi and Others 160 (2009) DLT 277. 10
Specifically section 377 stated “Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.”
11 MX v. ZY [AIR 1997 Bom 406]. 12 International Covenant on Civil and Political Rights, (ICCPR), 1966, Article 26 13
UN Human Rights Committee, General Comment Number 18: Non-Discrimination, 37th session, 1989, para 7, available at: http://www. unhchr.ch/tbs/doc.nsf/0/3888b0541f8501c9c12563ed004b8d0e?Opendocument (accessed 6 November 2011)
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•
Right to privacy: Article 17 of the ICCPR provides “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” The HRC has stipulated that “competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society”.14 This right is relevant in terms of the protection of confidentiality with regards to HIV status and has a direct bearing on healthcare and employment practices.
•
Right to health: Article 12 of the ICESCR provides “the States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This right has been interpreted as “an inclusive right, extending not only to timely and appropriate health care, but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.”15
The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has stipulated that the right to health includes certain freedoms and entitlements some of which are legally enforceable, such as the provision on non-discrimination. Specific issues that have been addressed by the CESCR are particularly relevant to PLHIV, MSM and transgender people, including the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups. This is defined as a ‘core obligation’ of states.16 The CESCR has also stated that the ICESCR “proscribes any discrimination in access to health care … on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation … which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.”17 The CESCR has observed that the obligation on states regarding treatment, prevention and control of diseases “requires the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS, and those adversely affecting sexual and reproductive health.” 18 This includes the provision of adequate information including on sexual and reproductive health which would allow people, especially young people, to make informed decisions with regard to their sexual behaviour and to keeping themselves and their partners safe. The right to be free from non-consensual medical treatment and the right to have personal medical data remain confidential is also deemed to be a part of the right to health.19 These are considered to be cornerstones of a public health response with regard to protecting the rights of PLHIV and their families and enhancing prevention efforts by encouraging people to voluntarily test themselves. •
Equality of opportunity in employment: the IDLO convention stipulates that each member state, “undertakes to declare and pursue a national policy designed to promote … equality of opportunity and treatment in respect of employment and occupation, with a view to eliminate any discrimination in respect thereof.”20 Discrimination is defined in this document as “any distinction, exclusion or preference made on the basis of race, colour, sex,
14
UN Human Rights Committee, General Comment Number 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Article 17), 32nd session, 1988, para 7, available at: http://www.unhchr.ch/tbs/doc.nsf/0/23378a872 4595410c12563ed004aeecd (accessed 6 November 2011).
15
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 22nd session, 2000, para 11, available at: http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/439/34/PDF/G0043934.pdf?OpenElement (accessed 6 November 2012).
16 In General Comment No. 3, the CESCR confirmed that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant: CESCR, General Comment No. 3: The nature of States parties obligations (Art. 2, par.1), 5th Session, 1990, para 10, available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c125 63ed0052b664?Opendocument (accessed 6 November 2012). 17 CESCR, General Comment No. 14: The right to the highest attainable standard of health, above n 15, para 18. 18
ICESCR, Article 12.2(c) and interpretation by the CESCR in General Comment No. 14: The right to the highest attainable standard of health, above n 15, para 16.
19
Ibid, para 8 (non-consensual medical treatment) and para 12 (b)(iv) (confidentiality of medical treatment).
20
Article 2, ILO Convention 111, Discrimination In Respect Of Employment And Occupation, 1958-
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religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”21
b. Application of International Law and Conventions in India India’s legal framework is dualist and as such, international laws related to rights cannot be transformed and applied in India unless there is appropriate domestic legislation. None of the international conventions or treaties has been transformed into domestic law, but courts have called upon them in several cases when discussing fundamental rights. In fact the Supreme Court has explicitly stated that “any international convention not inconsistent with the fundamental rights [of the Constitution] and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.”22 These provisions can therefore be relied upon by courts as facets of those rights and have the potential to be enforced. In certain cases the Government of India has created policy in keeping with its international legal obligations. For instance, India ratified ILO Convention 111 and the Government has created a Policy on HIV and AIDS and the workplace, which specifically prohibits “discrimination or stigmatization of workers on the basis of real or perceived HIV status.”23 The policy also states that HIV screening s hould not be carried out for the purposes of determining employment and that confidentiality of workers must be protected.24 However, although Government policy can inform the courts and decisions of the judiciary, they are not enforceable in court.
3. Domestic Laws Relating to HIV/AIDS a. Constitutional Provisions The Constitution of India was influenced by the Universal Declaration of Human Rights (UDHR). This is reflected in Part III which refers to fundamental rights. These include most civil and political rights, including the right to life, equality and non-discrimination. It is important to note that these fundamental rights are enforceable against the State, not private actors. Therefore in the context of HIV, discrimination in private health care or employment remains largely unregulated. Further, economic, social and cultural rights, are largely confined to the Directive Principles of State Policy, which are not enforceable in court.25 These include Article 47, which stipulates “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”26 Right to equality: Article 14 guarantees equality for all people “before the law or equal protection of the laws within the territory of India.”27 This principle is further extended in Article 15, which prohibits discrimination on various grounds including race, religion, sex, caste or place of birth. There have been a number of court decisions in relation to constitutional non-discrimination guarantees, with specific regard to PLHIV, MSM and transgender people. As legal activists have pointed out, “in the absence of any law or statute that specifically addresses the issues that are raised in the HIV context in India, both appellants
21
Ibid, Article 1(a).
22 Vishaka v. State of Rajasthan (1997) 6 SCC 241 23
Government of India, Ministry of Labour and Employment, National Policy on HIV/AIDS and the World of Work, (2009), Section 3.4 (ii), available at: http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/ wcms_117318.pdf (accessed 6 November 2012)
24
Ibid, Section 3.4 (VI, VII).
25
Article 37 of the Constitution of India states that “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.
26
Constitution of India, Article 47.
27
Constitution of India, Article 14.
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and the judiciary have had to make their complaints, decisions and rulings by extrapolation from a variety of law sources.”28 With regard to the rights of people with diverse SOGI, including transgender people, constitutional provisions were used as the basis to read down Section 377 of the Indian Penal Code, which criminalized “carnal intercourse against the order of nature”, or, in effect, same sex consensual sexual activity. In June 2009, this law was declared unconstitutional by the Delhi High Court. In an historic judgment Justice A.P Shah proclaimed “It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”29 This landmark judgment used the Constitution of India, along with foreign case law, to rule on the basis of fundamental rights. The court ruled that this section was a violation of the fundamental right to privacy; that a human rights approach protecting the rights of vulnerable populations is critical to HIV prevention; and that discrimination on the basis of sex includes sexuality and sexual orientation. The judgment also highlighted a critical distinction between public and constitutional morality declaring that the State cannot limit individual rights on the grounds of what the public may disapprove of, but must rely on constitutional principles of equality, plurality and inclusion. This decision has been hailed across the world as a positive development, rooted in protection of fundamental rights and marking “the beginning of the end of the legal subordination of India’s sexual minorities.”30 However, private parties have filed appeals against the decision which are currently being heard in the Supreme Court of India. Right to life and liberty: Article 21 recognises every individual’s right to life and liberty, which the Supreme Court has held to include the right to health.31 The rights to privacy and personal autonomy are also enshrined in this Article and this includes rights against mandatory testing for HIV.32 The Supreme Court of India has in a number of rulings, interpreted Article 21 of the Constitution of India. In Vincent Panikurlangara v. Union of India (1987) the Supreme Court held in this case that the maintenance and improvement of public health have to rank high amongst the State’s obligations, as these are indispensable to the very existence of the community.33 Further in Paschim Bengal Khet Mazdoor Society v. State of West Bengal (1996) the Supreme Court held that failure on the part of a government to provide timely medical treatment to a patient in need of such treatment amounts to a violation of the right to life.34 One notable recent case has illustrated how provisions of India’s Constitution, and in particular the right to privacy, can be used to respond to workplace discrimination towards people with diverse SOGI, namely the case of Dr. Shrinivas Ramchandra Siras & Ors.v. the Aligarh Muslim University & Ors. In 2010 Dr. Siras, an academic and teacher at Aligarh Muslim University, was suspended, directed to vacate his residence and asked not to leave Aligarh until completion of an inquiry when photos of him and a male friend were circulated. Dr. Siras had been open about his homosexuality. The University alleged that Dr. Siras had committed misconduct because “he indulged himself into
28 K. Bhardwaj, 2008, legal commentator, http://infochangeindia.org/agenda/hivaids-big-questions/do-we-need-a-separatelaw-on-hivaids.html K. Bhardwaj, ‘Do We Need a Separate Law on HIV/AIDS?’ Infochange: Agenda (January 2008) available at: http:// infochangeindia.org/agenda/hivaids-big-questions/do-we-need-a-separate-law-on-hivaids.html (accessed 6 November 2012). 29 Chief Justice A.P Shah, Delhi High Court, Naz Foundation (India) Trust v. Government of NCT, Delhi and Others 160 (2009) DLT 277. 30 Lawyers Collective, Leaflet ‘Sodomy Law Declared Unconstitutional’, available at: http://www.lawyerscollective.org/wp-content/ uploads/2010/11/377-Brochure-final.pdf (accessed 6 November 2011). 31 In 1991, in CESC Ltd. vs. Subash Chandra Bose, the Supreme Court relied on international instruments and concluded that the Right to health is a fundamental right and that Article 21 forms the basis of this right. 32 Mandatory testing that is not based on informed consent is a violation of the right to autonomy, has had negative public health consequences and has proven to be detrimental to HIV prevention efforts. Mandatory testing is not confined to employment - there have been many reports of transgender people as well as sex workers and PWUD being routinely subjected to HIV tests without their consent, in custody. 33 Vincent Panikurlangara v. Union of India (1987) 2 SCC 165. 34 Paschim Bengal Khet Mazdoor Society v. State of West Bengal, AIR 1996 SC 242; See also Parmanand Katara v. Union Of India & Ors on 28 August, 1989, AIR 2039, 1989 SCR (3) 997; State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.
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immoral sexual activity and in contravention of basic moral ethics.” Dr. Siras argued that the University had violated his fundamental rights to privacy, dignity and equality, and subjected him to discrimination on the grounds of his homosexuality. The Allahabad High Court granted an interim injunction to Dr. Siras to stay the suspension, the order to vacate premises and the order not to leave Aligarh. The Court also noted that the “the right of privacy is a fundamental right, needs to be protected and that unless the conduct of a person, even if he is a teacher, is going to affect and has substantial nexus with his employment, it may not be treated as misconduct.”35 Another significant anti-discrimination case in the Bombay High Court that affirmed the rights of PLHIV in the workplace concerned the case of a casual labourer, who was tested for HIV by his employer, a public sector corporation, prior to being granted a permanent position.36 In this case the labourer’s contract was terminated on the basis of a positive HIV test, despite the fact that he was otherwise perfectly fit. He subsequently filed a writ petition in the Bombay High Court, on the basis that the mandatory HIV testing and denial of employment to positive people, violated Articles 14 (equality before the law), 16 (equality of opportunity) and 21 (right to life and personal liberty) of the Constitution of India. The Bombay High Court ruling was significant in that it stipulated that “a government/ public sector employer cannot deny employment or terminate the service of an HIV-positive employee solely because of their HIV-positive status, and any act of discrimination towards an employee on the basis of their HIV-positive status is a violation of Fundamental Rights.”37 This judgment has set a precedent in India and has been called upon in several other cases over the last decade to protect the rights of PLHIV in the workplace.38 As such in the absence of enforceable legislation, courts are intervening to ensure fundamental rights and the precedents set in cases such as those mentioned above are critical.39
b. Legislation i. Anti-discrimination legislation •
India has no existing anti-discrimination legislation which would cover discrimination on the grounds of HIV and be applicable to private parties. However, it is worth mentioning two laws that provide some insight into the type of legislation that could be utilized towards this purpose.
•
The Equal Remuneration Act 1976 (ERA) mandates that employers must equally remunerate men and women for the same work. This Act specifically addresses inequity and discrimination within the workplace but only in terms of gender-based discrimination in wages. Whilst this is not directly applicable to PLHIV, legal activists have pointed out that this law is useful in terms of “determining responsibility for discrimination by companies and corporations”40 and “confirms the commitment and intent of the State to right the wrongs of discrimination.”41
35 Dr. Shrinivas Ramchandra Siras & Ors.Vsvs. The Aligarh Muslim University & Ors. Civil Misc. Writ Petition No.17549 of 2010 Allahabad High Court. 36 MX v. ZY AIR 1997, Bom 406. 37
Ibid.
38
See MX v. ZY AIR 1997 Bom 406; Mr. Badan Singh v. Union of India & Anr. (2002) --- Delhi High Court; X v. State Bank of India (2002) Bombay High Court; G v. New India Assurance Co. Ltd. (2004) Bombay High Court; X v The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82; RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal]; S. Indian Inhabitant of Mumbai v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999; A v Union of India [Unreported (28 November 2000) In the High Court at Bombay, WP No. 1623 of 2000 and Review Petition No. 3 of 2000].
39
For instance in a recent case the Delhi High Court intervened giving immediate directions to a Delhi hospital to provide blood and treatment to a poor HIV positive pregnant woman who needed a blood transfusion before her delivery. In this case the hospital had asked her husband, also HIV positive, to procure the blood as well as a universal precaution kit despite the fact that he had repeatedly explained his inability to afford these items. See Human Rights Law Network ‘HIV+ Pregnant Woman Denied Treatment’ (2011) available at: http:// hrln.org/hrln/hiv-aids/pils-a-cases/629-hiv-ve-pregnant-woman-denied-treatment.html (accessed 7 November 2012).
40
The Lawyers Collective, Legislating an Epidemic: HIV/AIDS in India, (New Delhi Universal Law Publishing, 2003) 13.
41
Ibid. The ERA outlines what a punishable offence is and prescribes punishments including fines and prison terms, thereby providing an example of an anti-discrimination piece of legislation that has teeth.
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The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PDA) also attempts to give effect to Article 14 of the Constitution of India in terms of equal opportunity. Whilst the PDA does attempt to alleviate the position of people with disabilities by addressing non-discrimination of disabled persons in government employment and public transport, it does not deal with the private sector at all. In addition, it does not include PLHIV within its purview, although activists have been advocating for this on the basis that the stigma and discrimination experienced by PLHIV is similar to that experienced by other people with disabilities. It has been suggested that one option for protecting the rights of PLHIV would be for the PDA to be expanded to include them within its purview and to be applicable to the private sector. Public interest litigation (PIL) filed in 1999 by the Lawyers Collective through Sankalp Rehabilitation Trust sought specifically to address barriers that prevented the access of PLHIV to health care services, especially discrimination in hospitals.42 In 2008, the Supreme Court passed an order endorsing fourteen points addressing these issues. The order included: •
ensuring the non-discrimination of people with HIV in heath care settings;
•
rapid up scaling of ART centres and Link ART centres;
•
increasing the number of CD4 machines and ensuring their maintenance in a timely and efficient manner;
•
ensuring adequate infrastructure in ART centres – adequate seating space, clean toilets and safe drinking water;
•
creating a grievance redressal mechanism by the institution of a complaint box in every ART Centre and appointment of Nodal Officers to review the complaints as well as through the creation of a State Level Grievance Redressal Mechanism;
•
providing of free treatment for opportunistic infections; and
•
ensuring the availability of universal precautions and post exposure prophylaxis for health care providers in public hospitals.
ii. Other legislation India has no legislation specifically designed to protect PLHIV and people with diverse SOGI. However, there are other provisions within Indian law, outside of those dealing with discrimination, that are applicable for all citizens that should be mentioned: •
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 specifically forbids physicians to deny treatment arbitrarily and states that in an epidemic, “the physician should not abandon his duty for fear of contracting the disease himself.”43 These regulations are particularly relevant in the context of denial of treatment for PLHIV and are usually called upon by courts to determine if a physician has been negligent in his/her duties.
•
The Indian Contract Act 1872 elaborates on the concept of consent. It stipulates that all agreements are contracts made by the free consent of parties and “two or more persons are said to consent when they agree upon the same thing in the same sense.”44 Consent is free if it is not obtained by coercion, undue influence, fraud, misrepresentation or mistake.45 Although this is specific to contract law, the elaboration of the principle can be used and has in fact been incorporated into the Indian Code of Medical Ethics Regulations 2002.46
42
Sankalp Rehabilitation Trust v. Union of India, Writ Petition. No.512/99. See discussion at the Lawyers Collective ‘Sankalp Rehabilitation Trust v. Union of India – Supreme Court of India’ available at: http://www.lawyerscollective.org/hiv-and-law/current-cases.html (accessed 6 November, 2012)
43
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, 2.1.1 and 5.2.
44
See Article 13, The Indian Contract 1872 (Act No. 9 of 1872)
45
Ibid, Article 14, “Free Consent defined”.
46
http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx
9
•
Indian Penal Code 1860 (IPC): Sections 341 and 342 make wrongful restraint or confinement of any person an offence under the IPC. Section 383 and 389 of the IPC make extortion criminal. Extortion through threat of arrest is a very serious crime and police are obliged to follow through on complaints it if individuals file first information reports (FIRs) alleging this. These provisions are useful to consider with regard to protective laws because, despite the current status of section 377, various other provisions in the IPC make it possible for the police to harass, blackmail and extort money from the MSM and transgender people in India.47 Community organizations and advocates have suggested that it would be useful for individuals to be aware of protections under the IPC and that “the existence of a rule of law framework can also be a space that human rights organizations and sexuality minority organizations should claim in order to protect the basic human rights of sexuality minorities.”48 However, the reality is that many people from the lesbian, gay, bisexual and transgender community are deterred from filing complaints against the police due to the risk of their sexual orientation or gender identity being discovered by their families, and fear of the concomitant stigma and ostracism that could potentially follow.
Section 88 of the IPC also offers a loophole to the criminalization of sexual reassignment surgery by stating that an exception can be made if an action is undertaken in good faith and the person affected by the action consents to suffer any harm that may ensue.49 Although this is by no means ideal, it has allowed certain individuals to opt for sexual reassignment surgery. There is a dearth of relevant material on cases/court decisions on the above provisions. This is, in part, because these protective laws are underutilized, due both to ignorance and fear of entering the legal system. However, there have been some critical court decisions regarding health since health care provision is not adequately regulated by legislation in India. These are discussed above. Further, existing constitutional guarantees are not enforceable against private actors and in the absence of enforceable legislation court decisions are needed to enforce constitutional rights.
iii. Pending Legislation concerning HIV/AIDS There is a significant absence of anti-discrimination legislation in India which is applicable to PLHIV, MSM and transgender people. While constitutional and international guarantees against discrimination exist, these guarantees are not enforceable against private actors. To achieve comprehensive anti-discrimination protections, a law that explicitly prohibits discrimination on the basis of HIV status, presumed HIV status and sexual orientation and gender identity, is needed. In 2007 a unique joint initiative of the government and civil society saw the introduction of the HIV/AIDS Bill 2007 (Bill) into Parliament. Drafted by the Lawyers Collective HIV/AIDS Unit after rigorous consultations across the country, the Bill “embodies principles of human rights & seeks to establish a humane & egalitarian legal regime to support India’s prevention, treatment, care & support efforts vis-à-vis the epidemic.”50 Although the Bill is yet to be passed by parliament it is worth examining it as an example of the type of law that could have a positive impact upon the rights of people living with and affected by HIV in India. Building on the various rights enshrined within the Constitution of India, the Bill specifically includes the recognition of the rights to equality, autonomy, privacy, health, safe working environment and information. Key features of the Bill include: •
Prohibition of discrimination: Chapter II of the HIV/AIDS Bill specifically prohibits discrimination related to HIV/AIDS in public & private spheres. Under the Bill, no person may be discriminated against in employment, education, healthcare, travel, housing, or insurance based on their HIV-related status.
47
See Section 268, IPC (nuisance), section 292-294 (obscenity) and also the Bombay Police Act 1951.
48
PUCL-K, ‘Human Rights Violations against Sexuality Minorities in India’,India: A PUCL-K fact-finding report about Bangalore (February 2001 (pg) at 16), available at: http://sangama.org/files/sexual-minorities.pdf (accessed 6 November 2012).
49
Section 320 and section 325 of the IPC make emasculation / castration / sexual reassignment surgery (SRS) criminal on grounds of causing grievous hurt to a person.
50
Lawyers Collective HIV/AIDS Unit, ‘The HIV/AIDS Bill 2007’ Positive Dialogue, Newsletter Number 20, (July 2007), 1 available at: http:// www.lawyerscollective.org/files/ENGLISH%20(July%202007)%20FINAL%20COPY.pdf (accessed 6 November 2012).
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Legal Reference Brief - India
•
Informed consent for testing treatment & research: In Chapter III, the Bill lays out the requirements for specific, free & informed consent for HIV related testing, treatment & research. The Bill leaves little room for ambiguity here defining informed consent as “consent given, specific to a proposed intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation and obtained after disclosing to the person giving consent adequate information including risks and benefits of, and alternatives to, the proposed intervention in a language and manner understood by such person.”51
•
Disclosure of information: Chapter IV guarantees the confidentiality of HIV-related information (including the HIV status of a person) and outlines the few exceptions for disclosure.
•
Right to access treatment: Chapter V, within the context of the right to health, provides for access to comprehensive HIV-related “treatment care and support facilities, goods, measures, services and information, including centres providing voluntary testing and counseling services…and free of cost treatment for HIV/AIDS for all persons.”52
•
Risk reduction: Chapter VII specifically addresses harm reduction strategies (such as the provision of clean needles, promotion of safer sex practices or provision of information and condoms to sex workers) protecting them from civil and criminal liability and law enforcement harassment.
•
Information, education & communication (IEC): Chapter IX deals with IEC recognizing that information is the key to any successful prevention programme and places a duty on the State to promote positive and evidence based messages that look at prevention as well as care, support and rights. The information provided should be “age-appropriate, gender-sensitive, non-stigmatising, non-discriminatory”53 and should promote gender equality.
•
Implementation & grievance redressal: Chapters XI and XII address and create innovative implementation mechanisms including institutional grievance redressal machinery, the establishment of a Health Ombudsmen in each district and HIV/AIDS authorities that will take over from the National AIDS Control Organisation and State AIDS Control Society with an independent and accountable structure and expanded policy and programme base. The Bill also specifies special court procedures including quick trials and creative redressal. Thus a case related to discrimination could see a court awarding damages and directing the person who discriminated to undergo sensitization, training and/or community service.
•
Link with sexual violence: critically, Chapter XIV also addresses the link between sexual violence and HIV and directs the State to set up sexual assault crisis centers where survivors of sexual assault may access services including counseling, treatment and management of STI’s including HIV and AIDS and referrals.54
Although the Bill was finalised and sent to the Law Ministry in August 2007, it was not cleared by the Ministry until March 2010. Since then, lawyers, activists, and PLHIV networks have been urging the Health Ministry to take action but the Bill has still not been tabled in parliament. In July 2011, approximately 300 PLHIV staged a protest outside the Health Ministry demanding immediate passage of the Bill and a meeting with the Minister for Health. However, the 2011 winter session of Parliament came and went without the Bill being tabled. August 2012 will mark five years since the HIV/AIDS Bill was prepared, years in which protections relating to the rights to health, employment, schooling and housing have not been statutorily enshrined.
4. Government initiatives and policies relating to HIV/AIDS The Indian Government has formally recognized gender plurality. The Electoral Commission allows India’s registered voters to tick “O” for “other” in the gender category for people who do not identify as either male or female. India’s Ministry of External Affairs also allows individuals to mark “E” for “Eunuch” on passport forms. 51
The HIV/AIDS Bill 2007, Chapter 1, Section 2 (q).
52
The HIV/AIDS Bill 2007, Chapter 5 Section 2.
53
The HIV/AIDS Bill 2007, Chapter 4, Section 24 (1).
54
The HIV/AIDS Bill 2007, Chapter 4, Section 7.4.
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Neither the “O” (“other” is considered derogatory) nor the “E” (which is eunuch specific and exclusive) are satisfactory to transgender and intersex groups. However, this is a step forward in terms of recognition of the transgender community as a whole.
Conclusion In the absence of a HIV law or specific anti-discrimination provisions, the courts of India have been proactive in upholding the right to health and applying protective provisions contained in international instruments. This utilization of a range of sources of law to protect the interests of PLHIV and people with diverse SOGI has been regionally recognised. Notwithstanding positive developments in the courts, given the prevalence of stigma and discrimination, and the impact of such on HIV prevention, treatment, care and support, India must scale up efforts to strengthen the enabling legal environment and uphold the rights of PLHIV, MSM and transgender people.