Need for a AIDS specific criminal legislation (!?)

[Guest guest]

Deccan Herald, Sunday, December 1, 2002

Breaking the silence

The Andhra Pradesh Government is planning to come up with legislation

for mandatory pre-marital testing. The move was prompted by

increasing numbers of housewives testing positive for HIV. Will such

testing be a violation of the fundamental rights of individuals? Or

can rights be restricted for prevention of crime and the protection

of health and rights and freedom of others? On World Aids Day, Jijo

and C Shivakumar examine the need for a AIDS specific criminal

legislation

" I am sorry dear, but I had to do this. I couldn't let myself go

without knowing the bliss of married life. After all, there is only

one life. Pardon me. " A pale-faced Premnath, staring at pale-faced

death in an AIDS palliative centre in Trichur district of Kerala,

said feebly. But, for his three-month wife, Vandana, who had eloped

with him, the world came crumbling down. Premnath, who was working in

Mumbai and the Gulf, knew that he had contracted the AIDS virus. But,

he, like hundreds of others, chose to hide the fact when he stepped

in to 'marital bliss'.

Does a situation like this demand an AIDS-specific criminal

legislation? Can the State breach the right to confidentiality of an

individual in its attempts to secure society against the epidemic?

More importantly, should a set of norms be put in place to re-

establish the rights of those exorcised by the contagion?

More women in India, not all of them sex ! workers, but housewives,

join the swelling ranks of AIDS victims and with that arises a whole

gamut of rights issues. Take the case of Sunitha, a housewife from

rural Karnataka, who is awaiting slow death in one of the palliative

centers in Bangalore city along with her husband Ganesh. Ganesh

confesses to many a pre-marital escapade and he obviously regrets it.

He would talk about all what horribly went wrong with his life, when

Sunitha stands out of the room for a brief while. But, for this bad

habit, there is no good riddance. Not in this life. He has sunk a

family and made his wife HIV positive. All the two kids they had,

died in early infancy and the couple have wisely decided not to have

any more children.

Should there be a pre-marital mandatory test to ensure that women are

protected from the gnaws of HIV? If we decide to go in for such

mandatory tests, will that be a violation of the fundamental rights

of individuals? Will a legislation requiring mandatory test g! o

against the grains of an individual's privacy and confidentiality?

Or, in any case will such tests be effective in that HIV virus has a

window period?

Well, AIDS is all about many questions and not any answer. The

current debate essentially veers down to the issue if the State

should intervene in a critical way and put in place legislations to

check the pandemic.

Andhra Pradesh is considering legislation to make pre-marital HIV

test mandatory. A couple of years back, Private Member's bills were

introduced in Karnataka and Maharashtra seeking aggressive State

intervention in containing the spread of the virus. While the

provisions of the proposed bills were premised on the concept that

the rights of society or community at large can best be safeguarded

by resorting to systems of mandatory testing, breach of

confidentiality and discrimination against people living with

HIV/AIDS, such attempts were vehemently opposed on the grounds that

the rights of society can be ef! fectively safeguarded only by

providing voluntary testing, non-disclosure of HIV status and non-

discrimination of people living with AIDS.

" Testing persons for HIV mandatorily before marriage does not fulfill

the objectives sought to be achieved at an individual level. Also at

a public health level, mandatory testing for HIV has negative public

health consequences, " says Dr Ashok Rau, Executive Trustee and

Director, Freedom Foundation, Bangalore.

" HIV is identified through an antibody test. However, the peculiarity

of an HIV antibody test is the " window period " . This is the period in

which a person, though infected with HIV, would be tested negative as

his antibodies are not developed. Thus, a single antibody test for

HIV does not serve the purpose of preventing the prospective spouse

from getting infected. There is also a high rate of false positive

result. A person's life could be marred for ever on account of a

false positive result and he may not be able to m! arry at all.

Moreover, mandatory testing would only give a false sense of security

and a false belief that the infection is being effectively prevented

from spreading whereas the virus will go underground and come back

with greater vigour. Because mandatory testing would only dissuade

people from getting their tests done. This is also against the

National AIDS Control Organisation (NACO) policy on testing, which

encourages voluntary testing after pre-test counselling, " says Dr

Rau, who has been engaged in AIDS control, rehabilitation and

prevention work for the last 12 years.

" Mandatory testing ignores issues of consent and confidentiality of a

person's HIV status. It can also open a racket of issuance of false

certificates prior to marriage. Further, in most personal laws,

marriages are not required to be registered. Therefore, a policy for

mandatory testing would be impossible to implement, " says Dr Rau.

The reason behind the Andhra Pradesh Government planning ! to come up

with legislation for mandatory pre-marital testing was that

housewives were increasingly tested positive for HIV. But Dr Rau

contends that mandatory testing will not address this problem. " The

question is that should it be done by making it mandatory or by

empowering women so that they can themselves decide. Pre-marital

testing does not really prevent women from getting infected, it does

not give information to women about HIV, about safe sexual practices,

it does not empower them, it does not emancipate women, " he says.

Global experience

And what is the global experience with the idea of pre-marital

testing?

More than 30 States in the US considered pre-marital HIV testing in

late nineties. However, all except Illinois and Louisiana rejected

the idea. Illinois and Louisiana enforced mandatory pre-marital test!

ing only to repeal it shortly afterwards.

Does it mean that the State should be a mute spectator to the furious

death dance of HIV and not step in with a roadmap to tackle the

contagion? If you talk to some of the AIDS victims, counting their

days in sanatoriums, you can hear them speak in favour of some kind

of Government intervention to protect their rights. " I contracted

AIDS from my husband, a truck driver in Mumbai. When my in-laws came

to know about it, they threw me out of the home. I found myself on

the street when my own family disowned me. I was punished for no

mistake of mine and there is no State help for me. I wish if there

were proper provisions to protect the rights of AIDS victims, " says

Malini, a housewife from Hassan district of Karnataka.

Sure, despised by their families and thrown out of their livelihoods,

the increasing fold of AIDS victims are seeing now a lopsided

interpretation of rights. While there is talk about the need to c!

urb their rights in the larger interests of the uninfected

population, not many, unfortunately, care two hoots about AIDS

victims' genuine rights which get trampled under foot.

A couple of years ago, the Supreme Court of India ruled against the

conjugal rights of the AIDS patients. The reasoning used by the

judges was the rights of AIDS victims were not absolute and could be

restricted for the " prevention of crime and the protection of health

and rights and freedom of others. " The judgement indicated that the

right of an HIV positive person to get married stood suspended.

But, Justice Kirby, High Court of Australia, had a point when

he said: " Paradoxically enough, the only way in which we will deal

effectively with the problem of the rapid spread of this epidemic is

by respecting and protecting the human rights of those already

exposed to the virus and those most at risk. " According to Justice

Kirby, the HIV threat is shadowed by the new threat of HUL, ie, Hi!

ghly Useless Laws.

This line of argument gains potency in the light of increasing

incidents of AIDS patients getting discriminated against in various

fora. Against the popular perception, in reality, discrimination is

not practised against an HIV-positive person in his use of or access

to public places, restaurants, wells, rivers, public conveyance etc.

But the more dangerous kind of discrimination is practised against

them in areas of healthcare, employment and insurance.

According to Dr Ashok Rau, legislations alone will not take us

anywhere in the matter of AIDS control. " If you go for a legislation

that will ferret out all the AIDS patients by means of compulsory

testing, that will be more like a doctor cutting up a patient's

stomach and not knowing what to do next. Because, this country is

abysmally lacking in healthcare infrastructure and financial means to

take care of its bulging numbers of AIDS patients. "

Perhaps taking care of the unjustly demo! nised AIDS victims would

require a more realistic appraisal of the whole issue by the

authorities. Only the other day, the Union Minister of State for

Health informed Parliament that the number of AIDS affected people in

Karnataka was 47 in 1999, 541 in 2000, and that the number had

declined to 516 by 2001! Is this a case of poor ministerial

arithmetic or a blatant cover-up?

Let's forget about the numbers if numbers are what make the

Government's knees wobble in fear. But there has to be a debate on

whether AIDS-specific legislation is actually needed in the country.

With that, the thin line between coercive, blunt use of State power

and constructive legislation protecting the genuine individual rights

of the victims should be drawn too.

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