AP Bill: Breaking the silence

[Guest guest]

Deccan Herald, Sunday

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 go 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 effectively 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 marry 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 testing 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 curb 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, Highly 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 demonised 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.

_____________________

Forwaded by:

Ashok Rau

Executive Trustee/CEO

Freedom Foundation-India

Centers of Excellence- Substance Abuse & HIV/AIDS

Bangalore, Bellary, Siruguppa, Mangalore, Udupi, Hyderabad, Chennai, Goa, soon

at Dharwad & Hospet

180, Hennur Cross, Hennur Main Road, Bangalore-560 043, India

Phone-0091 80 5440134,5443114(Dir) 5449766, Mobile-98452 47616

Fax-0091 80 5449766(Tele Fax) 5294651

E-mail: ashokrau@...