Justice Edwin Cameron and Justice Kirby in Bangalore

[Guest guest]

Dear Sir/Madam,

Sub: Invitation for a Media Interaction with Justice Edwin Cameron, Supreme

Court of Appeal, South Africa and Justice Kirby, High Court of

Australia (premier experts on HIV/AIDS Law and Human Rights) in Bangalore.

I write on behalf of Lawyers Collective HIV/AIDS Unit and Freedom

Foundation , both leading NGOs working on HIV/AIDS-related issues. Freedom

Foundation is a Non-governmental organization, which runs two Centers in

Bangalore - one for the treatment of Chemical Dependants and the other for

the Care and Support of HIV/AIDS infected/affected men, women, and children.

The Lawyers Collective and Freedom Foundation consists of a group of

lawyers, law persons, students and activists who are active in legal issues

relating to the public interest including areas related to the environment,

women's rights, housing etc. They have been active in the area of HIV/AIDS

since 1988 and the Lawyers Collective HIV/AIDS Unit has been functioning in

Mumbai for over 3 years and also has an office in Delhi. The Unit has

handled some of the most significant HIV/AIDS related cases in India.

Please find attached an information sheet that summarises the nature of its

work.

We believe that the HIV/AIDS epidemic calls for a concerted and systematic

response on the part of Government, NGOs and civil society in general. For

such a response to be effective, it is essential that policies, laws and

strategies are devised on a clear and holistic understanding of

socio-economic realities and in a manner that gives paramount importance to

a human rights framework to deal with the epidemic. We believe that a legal

framework based on human rights is crucial in successfully dealing with the

epidemic.

Keeping this in mind, the Lawyers Collective and Freedom Foundation's

HIV/AIDS Unit has involved itself in an advocacy programme that addresses

legal and ethical issues around HIV/AIDS in collaboration with policy

makers, the judiciary, the healthcare sector, groups that are more

vulnerable to HIV/AIDS, media and other stakeholders. Part of this advocacy

initiative is possible due to the kind presence of Justice Edwin Cameron,

Supreme Court of Appeal, South Africa and Justice Kirby, High Court

of Australia - two of the foremost international jurists on HIV/AIDS law.

(enclosed is a brief introduction of Justice Kirby and Justice

Edwin Cameron.)

These eminent jurists will be in Bangalore on 4-5 January 2002 to interact

with the judiciary, healthcare workers and policy makers. Workshops have

been planned for the judiciary, and meetings organised with healthcare

personnel in these 2 days. A meeting with the Chief Minister will also take

place. Freedom Foundation and the Lawyers Collective HIV/AIDS Unit wish to

facilitate an interaction between them and the media in Bangalore on 5

January evening between 4.30 to 5.30pm, which we invite you to participate

in. The judges have expressed their keenness to address media and press

gatherings as they believe that it is crucial for the media to be

sensitised to several issues related to HIV/AIDS and play a key role a

comprehensive strategy to deal with the epidemic. The judges will be

visiting Freedom Foundation and also interacting with the positive

community. The Media Interaction will be held as per the following details:

Venue: Hotel Gateway: 66, Residency Road, Bangalore - 560 025.

Date: 5 January 2002. Time: 4.30 -5.30pm

We are also enclosing herewith a Concept Note on HIV/AIDS and Law for your

information and perusal. We look forward to your presence and participation

at the Media Interaction.

Regards,

ASHOK K. RAU

Executive Trustee

Freedom Foundation

For Freedom Foundation and Lawyers Collective HIV/AIDS Unit

BIODATAS OF JUSTICE MICHAEL KIRBY & JUSTICE EDWIN CAMERON

Hon'ble Justice Kirby

Justice Kirby is among the foremost legal luminaries in the field

of HIV/AIDS, Law and Human Rights. He is one of the judges in the

seven-member team of the High Court of Australia, the apex court of that

country and has been judge of that court since 1996.

Through his judicial activism, Justice Kirby has encouraged the evolution

of some of the most progressive principles in the HIV/AIDS and Human Rights

arena. In the famous case of X v Commonwealth, where a soldier alleged

unlawful discrimination in employment on the grounds of HIV status, Justice

Kirby recorded his dissent even as the High Court of Australia ruled in

favour of the forces. In this context, Justice Kirby noted later " the case

illustrates the fact that, for judges, HIV/AIDS is no longer a remote,

exotic faraway problem. It is a regular visitor to the courts, whether in

India, Australia or elsewhere. Judges must be alert to its legal dimensions. "

Besides being an authority on legal issues, Justice Kirby is also a

world-renowned activist in the field of HIV / AIDS. Between 1990 and 1993,

he served as a member of the WHO's Global Commission on HIV/AIDS. He has

addressed various international conferences and gatherings on HIV/ AIDS and

related Human Rights issues. His addresses have always had an immense

impact on people and policy.

Kirby graduated from the University of Sydney completing his LLM

degree with First Class Honours. In 1997, the National Law School India

University, Bangalore, conferred on him the honorary degree of Doctor of Laws.

He served as Foundation Chairman at the Australian Law Reform Commission

from 1975 - 1984. He has chaired two committees of the OECD on Privacy and

Data Security.

Justice Kirby has worked extensively on other Human Rights issues as well.

In 1991, he was awarded the Australian Human Rights Medal. He served as the

Special Representative to the Secretary General of the United Nations on

Human Rights in Cambodia between 1993 and 1996. In 1998, he was named

Laureate of the UNESCO Prize for Human Rights Education. He was elected

President of the International Commission of Jurists in 1995. In the same

year, he was appointed to the Ethical, Legal and Social Issues Committee of

the Human Genome Organisation monitoring the largest cooperative scientific

project in history.

In 1996, he was appointed to the International Advisory Group on Advocacy

Training of the Inns of Court School of Law in London and to the

International Council for Conflict Prevention of International Alert,

London. He was also a part of the team that prepared the Judicial Training

Manual on Human Rights for the UN Centre for Human Rights in 1997.

Justice Kirby has been associated with India at both professional and

personal levels for decades now. His keen interest in the Indian context,

especially with respect to initiatives around HIV/AIDS, is reflected in his

commitment to visit India every year to assist in intensive advocacy

exercises with the Lawyers Collective HIV/AIDS Unit. These initiatives

include addressing workshops/seminars/ meetings of the judiciary (High

Courts & lower courts), members of the legal community, policy makers

(including members of the National AIDS Control Organisation, State AIDS

Control Societies, Health Ministers of the States of Karnataka &

Maharashtra) and NGO representatives in several cities across the country

including Mumbai, Ahmedabad, Surat, Bangalore, Hyderabad and Delhi. This

year Justice Kirby will be addressing workshops and public meetings in

Kochi, Bangalore, Mumbai and a Colloquium for the Supreme Court and Delhi

High Court judiciary in Delhi.

Hon'ble Justice Edwin Cameron

Hon'ble Justice Edwin Cameron is presently a Judge of the Supreme Court of

Appeals, South Africa. He was formerly a Judge of Appeal at the Labour

Courts and acting Justice in South Africa's highest Court- the

Constitutional Court.

More importantly Justice Cameron is one of the leading international human

rig activists on issues surrounding HIV/AIDS and with Justice Kirby, one of

the preeminent legal minds on these issues. Apart from bringing his

outstanding intellectual and professional perspective on HIV/AIDS issues,

Justice Cameron also brings his personal experience on these issues.

Edwin Cameron pursued his education at Stellenbosch University, South

Africa. At Oxford, he was a Scholar and also held the Vinerian

Scholarship.

Before his appointment as Judge in 1994, Edwin Cameron practiced as a Human

Rights lawyer at the Johannesburg Bar. He taught law at the Centre for

Applied Legal Studies, University of Witwatersrand. Besides initiating

litigation on HIV/AIDS issues, Edwin Cameron helped found the National AIDS

Consortium in 1992, and the AIDS Law Project in 1993. He was one of the

members of the team that drafted the South African National AIDS Plan in

1993-94. He also co-drafted the Charter of Rights on HIV/AIDS. In the year

2000 he delivered the Inaugural Address at the XIII International AIDS

Conference in Durban, a speech which has become a seminal document on the

need for human rights to be at the core of an effective response to HIV/AIDS.

Currently, Justice Cameron is a trustee of a number of AIDS Service and

Community Organisations, and chairs the South African Law Commission's

Project Committee on HIV/AIDS. Since 1996 this committee has produced

various recommendations on law reform measures, including a ban on

pre-employment testing for HIV, which became South African law in November

1998.

Justice Cameron has also visited India frequently with Lawyers Collective

HIV/AIDS Unit in the past few years and participated in advocacy efforts

including addressing workshops/seminars/ meetings of the judiciary (High

Courts & lower courts), members of the legal community, policy makers

(including members of the National AIDS Control Organisation, State AIDS

Control Societies, Health Ministers of the States of Karnataka &

Maharashtra) and NGO representatives in several cities across the country

including Mumbai, Ahmedabad, Surat, Bangalore, Hyderabad and Delhi. Along

with Justice Kirby, this year Justice Cameron will be addressing workshops

and public meetings in Kochi, Bangalore, Mumbai and a Colloquium for the

Supreme Court and Delhi High Court judiciary in Delhi.

CONCEPT NOTE

HIV/AIDS and Human Rights

Official estimates put the number of HIV+ people in India at approximately

3.9 million, a tenth of the world's prevalence. The epidemic of HIV/AIDS

being one which is transmitted through unprotected sexual intercourse,

mother to child or through blood or bodily fluids, it is likely that these

numbers will increase manifold in a very short time, creating a social,

economic and health crisis of immense proportions for the nation.

Effective interventions are needed to reassess and reexamine not only

public health services and policies but (due to the great prejudice that

the epidemic creates in people's minds) also those that address the human

rights of affected persons and the legal regime which governs their needs.

It has been seen that where rights are given to empower communities and

individuals, they are better able to deal with HIV/AIDS. This human rights

logic for the control of HIV is quite simple - that empowering people with

rights would allow them to access safe-sex messages, re-consider high-risk

behaviour and follow safe practices, thereby.

A rights-based integrationist approach predicates the creation of an

enabling environment where people are not left out, stigmatised and

isolated but are empowered, included in the mainstream and guaranteed their

inalienable human rights. When policies and laws are created and

implemented with this fundamental philosophy in mind, they would go a long

way in removing several hurdles in India's efforts to control the spread of

HIV/AIDS.

Key Legal Issues arising in the HIV/AIDS context - breach of consent,

confidentiality and Discrimination in healthcare and employment settings

The key legal issues that arise in the HIV/AIDS context include the lack of

informed consent when testing a person for HIV, the breach of

confidentiality by disclosure of a person's status and the rampant

discrimination faced by people living with or affected by HIV/AIDS while

accessing healthcare and/or seeking/remaining in employment. A legal regime

that permits these violations to occur only exacerbates the deep stigma

attached to HIV/AIDS, thus driving people away from accessing services and

also driving the epidemic underground. In light of this it is important for

law and policy to examine the prudence of an approach that upholds consent,

confidentiality and non-discrimination as central to an effective response

to HIV/AIDS.

Vulnerable Populations

The spread of the epidemic is most common among the less privileged and

marginalised. This is not because these populations are vectors of

transmission but due to the fact that those shorn of rights are more

vulnerable to HIV/AIDS. It is also reflective of the fact that social and

economic disparities play an important role in increasing vulnerability to

HIV/AIDS. This reality has demanded a fresh outlook to these communities.

An insensitive legal regime along with traditional and antiquated codes of

morality that unjustly criminalise certain populations and their behaviour

compound their vulnerability to health risks.

The vulnerability of groups like commercial sex workers, men who have sex

with men, intravenous drug users exacerbate the vulnerability of the

general population to HIV/AIDS. Section 377 of the Indian Penal Code, a

vestige of the British, continues to criminalise homosexual conduct and is

used as a way to exploit adults indulging in private, consensual conduct.

Similar laws have been repealed worldwide including England. Yet they

persist in India.

The Narcotics & Psychotropic Substances Act, 1986 continues to criminalise

drug users instead of making them the object of assistance and support. The

Immoral Traffic Prevention Act effectively criminalises sex work thus

exposing that community to human rights violations, abuse and health

problems such as HIV/AIDS.

And, finally a plethora of personal laws on inheritance, matrimony and

property along with antiquated rape laws support a strong patriarchal bias

that exists in Indian society thereby leaving women powerless and vulnerable.

" Women have to constantly struggle and fight for what is their very own,

especially after the death of the husband. They face a lot of harassment

and problems with regard to maintenance and share in the matrimonial

property. There has also been a rise in divorce cases over the years. Of

the 67 women clients, 55.22 % were widows.

After the death of the husband, securing gainful employment and the dues of

the husband from the employer seem to be an issue faced by young widows.

The woman and the family feel the economic crunch when the man falls ill or

dies. The entire burden shifts on the woman if alive, or her children. "

(From a study of cases, advice and litigation handled by Lawyers Collective

HIV/AIDS Unit.)

Legal Intervention

The Lawyers Collective HIV/AIDS Unit has been using law as a tool in

seeking implementation of integrationist policies in state sponsored

efforts in controlling the spread of HIV/AIDS and protection of rights of

people affected and vulnerable to HIV/AIDS. Legal intervention has played

an important role in securing the human rights of people vulnerable and

most affected by HIV/AIDS in India and abroad.

For instance, in a remarkable judgement in the case of MX v ZY, the Bombay

High Court upheld the right of an HIV-positive person to work and deemed

any discrimination on this basis as violative of Fundamental Rights under

Articles 14, 16 and 21 of the Constitution of India. However, in Mr. X v

Hospital Z, a case on the substantive issue of breach of confidentiality

between a blood donor and a hospital blood bank, the Supreme Court ruled

that an HIV-positive person's right to marry stands suspended.

These two examples reveal an interesting contrast. The first decision is

encouraging in terms of efforts made to advocate for a human rights-based

approach to HIV/AIDS. But the second decision, suspending the right to

marry, poses a diametrically opposite approach. This not only reflects the

need to sensitise the judiciary but also elucidates a primary need for an

over-arching legislation that prohibits any discrimination on the basis of

HIV/AIDS and supports the integrationist stand thus leaving no space for

any biases from judge made law.

The Role of Judicial Workshops and Advocacy with Policymakers etc.

The judicial workshops involving Justice Edwin Cameron and Justice

Kirby are a process by which capacity building and sensitisation of the

judiciary to several legal issues related to HIV/AIDS is undertaken. It is

felt that this is vital to help in creating an enabling environment for

controlling the spread of HIV/AIDS. Such advocacy initiatives are not

confined to the judiciary but also include meetings with legislators, the

executive, doctors, NGOs and finally people living with HIV/AIDS. The

commitment with which these eminent jurists have been coming to India for

the purpose of advocacy on HIV/AIDS and human rights is total and their

contributions have been immeasurable. Over the last three years they have

conducted workshops in Delhi, Mumbai, Bangalore, Ahmedabad, Surat and

Hyderabad. This year they will revisit Mumbai, Bangalore, and Delhi and

also interact with the judiciary and policymakers in Kerala.

The plan for this year includes a Colloquium for Supreme Court judges and

High Court judges in Delhi, workshops with High Court and Lower Court

judges in Bangalore and Kochi, meetings with healthcare workers in

Bangalore and Delhi, a public meeting with NGOs and Trade Unions in

Thiruvananthapuram and Mumbai, meeting with groups working with sexual

minorities in Delhi and Mumbai and finally meetings with representatives of

the executive including Chief Ministers of Karnataka and Kerala and the Law

Minister of India.

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