Letter to Chief Minister of Karnataka. Ref State AIDS Bill

[Guest guest]

Hon'ble Chief Minister

Shri Dharam Singh

Room 323, Vidhana Soudha

Bangalore-560001

Karnataka

Dear Sir,

This is in respect to the proposed bill to protect the rights and prevent the

infection of persons with HIV/AIDS, currently being considered by the Karnataka

State government.

We appreciate the efforts of the concerned persons to enact a statute that will

attempt to protect the rights of persons living with HIV/AIDS and prevent the

spread of the infection. The protection of rights has been recognised by various

countries

including India as the optimal strategy for preventing the spread of the

infection. Such a public health strategy is referred to as the " AIDS Paradox " :

by protecting the rights of those infected or at-risk, these persons will not be

fearful to access life-saving health information and services, including

prevention information. Thus, by

protecting the rights of individuals, transmission of the infection is prevented

and the community as a whole is protected. It is a praiseworthy step that

Karnataka is contemplating a law on HIV/AIDS that recognises public health

strategies based on such realities.

However, we would like to bring to your attention a few key concerns regarding

the proposed bill:

1. Foremost among these is the fact that the Central government, through the

Advisory Working Group ( " AWG " ), commissioned the drafting of a national

legislation on HIV/AIDS. The legislation

is being presented this week to Dr. Anbumani Ramadoss, the Health Minister,

Ministry of Health, Government of India, and is to be tabled in Parliament this

year. We would like to bring to your

attention that in the event that there are provisions that are absent or

contradictory in the state law, the national law would, under the Constitution,

override the state law in the same

field.

2. Recognising the pressing need for an HIV/AIDS law in Karnataka, and further

taking into consideration the unique cultural, economic, social, and other

factors present in Karnataka, we acknowledge that Karnataka may require a

contextually appropriate legal response. However, it is imperative to emphasise

the following point: the

nature of the epidemic in India is cross-border and not state-specific.

Karnataka, with its central location and high rates of inter and intra state

mobility, demands a legislative response that

necessarily takes these realities into account.

An isolated state response that is not coordinated with other states,

particularly those bordering it, will be ineffective.

Therefore, we believe that only a national response is appropriate for the needs

of Karnataka, and any state response must be fashioned

in the context of the national response.

3. Furthermore, we are deeply concerned that the Karnataka proposed bill, unlike

the national draft law, was not created in a consultative and participatory

manner, obtaining inputs from those infected, affected and working for HIV/AIDS.

We believe that a democratic, participatory process, ensuring that people's

voices are heard, is integral not only to drafting any HIV/AIDS law but also to

ensure its successful implementation.

We sincerely believe that in order to create an appropriate legal response that

best fits the Indian legal and social context vis-a-vis HIV/AIDS, extensive

research must be undertaken of global approaches attempted and lessons learned,

rigorous scrutiny must be performed of these laws and policies and programmes,

and a detailed examination must occur of the application to the Indian legal and

social context. For the national draft law, research was first undertaken of

laws in other parts of the world that culminated in a background book,

" Legislating an Epidemic: HIV/AIDS in India " . We

enclose a copy of the book herewith for your examination.

This was followed by extensive consultations around the country. Consultations

were held with various stakeholders, including: Persons Living With HIV/AIDS,

marginalized populations (e.g. sex workers, men who have sex with men, injecting

drug users), health care workers, employers/employees, NGOs working with

HIV/AIDS, women and children.

Each consultation lasted two full days, and was conducted with thorough

involvement from various State AIDS Control Societies ( " SACS " ). This process

enabled an understanding of realities occurring at the local level,

incorporating a broad cross-section of

perspectives and experiences into the draft law.

What emerged from these consultations was a reaffirmation of our belief that

understanding the experiences and needs of affected persons necessarily entails

taking cognizance of unique regional differences and perspectives, such as HIV

prevalence rates, and social, economic, political, infrastructural, educational

and cultural factors.

A regional consultation was held in Bangalore, Karnataka, in March 2004, with

stakeholders from across Karnataka providing critical inputs.

Above all, it was realized that the law on HIV should be evidence and

rights-based and not premised on hypothetical notions of what " should be " . The

national law does not base itself on any ideological precepts. It strongly bases

itself on evidence of

successful strategies in India and around the world.

It is also rooted on protection and promotion of the rights of those infected

and affected. The understanding of the HIV paradox is crucial to understanding

the battle against HIV.

We continue to believe that any statutory approach to the HIV/AIDS epidemic must

be informed by these realities, and believe that the national law will therefore

most effectively protect persons and

communities significantly affected.

4. The national legislation covers a vast array of topics and is holistic and

comprehensive. The proposed Karnataka bill is neither.

There are crucial features which are absent or not dealt with

adequately in the proposed Karnataka bill that any HIV/AIDS law should provide

for, viz. consent, confidentiality and rights against discrimination, special

understanding of vulnerable communities and

provisions on risk reduction, Information/Education/Communication ( " IEC " ),

implementation mechanisms, a safe working environment, access to anti-retroviral

and related treatment to prolong healthy lives of HIV-positive persons, special

promotions of rights of women and children.

Given the devastatingly high number of people living with HIV/AIDS who are

desperately requiring treatment in Karnataka, it is a glaring gap that there is

no sufficient provision for access to medicines and treatment, an essential

component of a comprehensive response to the epidemic.

5. We would like to highlight a few of the most troubling sections of the bill,

that compromise the rights of women, and of persons living with HIV/AIDS, and

which we do not believe will prevent

the spread of HIV/AIDS in Karnataka:

A mention of pre-marital HIV tests that does not provide for enforceable rights,

and borders on the dangerous mandate of pre-marital mandatory testing;

A provision on a mandatory duty to disclose that violates the right to

confidentiality and does not provide essential safeguards for Persons Living

With HIV/AIDS;

A provision that proscribes procreation between consenting adults, violating

fundamental rights;

A provision requiring the mandatory testing, counselling and treatment of

pregnant women, violating fundamental rights and placing the women of Karnataka

at heightened risk of negative

health effects, domestic violence, and other deleterious consequences.

These provisions are liable to be challenged and held

unconstitutional by courts of law, on account of the violation of fundamental

rights. In fact, data from around the country maintained by NACO and SACS

demonstrates that of the pregnant women who are reportedly counselled, 97%

undergo testing voluntarily. Therefore, there is no need to test any women

mandatorily. This indicates that the law is not based on ground realities or on

any evidence, but is premised on hypothetical assumptions that are disastrous in

the long run.

6. We would like to note that any statute seeking to prevent the HIV/AIDS

infection, and protect rights, must be thoughtfully and precisely drafted.

Unfortunately in the proposed bill, terms are not well-defined, sections exist

that overlap with existing law, there is no clarity as to which sections are

applicable to the public or private sector, proscriptions are recited without

judicial avenues named, and remedies or penalties are not clearly set out, to

name a few of the problems.

Furthermore, the functions of the state board and officials are not explained in

relation to the existing national and state bodies and programmes that already

exist. Such ambiguity will only result,

we believe, in justice denied to those who desperately need it and alienate

Persons Living With HIV/AIDS from the rest of society.

We have attached an in-depth legal analysis of the proposed bill that highlights

its poor draftmanship, which we believe will impede its effective implementation

and could potentially worsen the

current situation.

7. In conclusion, we request you not to pass this proposed legislation that

could have a negative impact on public health and on individuals. We request you

to re-examine the law and strategies

that can be employed that will empower the citizens of Karnataka, particularly

persons living with HIV/AIDS, so that they in turn will effectively prevent the

spread of the HIV infection in Karnataka.

We respectfully request you to adopt/wait for the national comprehensive

HIV/AIDS legislation to be enacted, which we believe is the optimal legal and

public health response for Karnataka.

Thank you,

Anand Grover

Project Director

Lawyers Collective HIV/AIDS Unit - Bangalore

E-mail: <aidslaw2@...>

Cc: Dr. Anbumani Ramadoss, Hon'ble Health Minister, Ministry of Health

Dr. Quraishi, Director General, National AIDS Control Organisation

Mr. Patil, Hon'ble Law Minister, Karnataka

Mr.Thangaraj, Health and Family Welfare Secretary, Karnataka

Mrs. Mukthamba, Project Director, Karnataka State AIDS Prevention Society

Karnataka Network Positive People (KNP+)

Samraksha-Bangalore

Freedom Foundation

ActionAid Bangalore Regional Office, Milana & Abhaya

International Services Association (INSA)

Society for People's Action for Development (SPAD)

Asha Foundation

Eapen

Sahana Basavapatna