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Health
HIV/AIDS Bill
Pushing the Legal Envelop
by Kajal Bhardwaj
 Recently,
media was abuzz with news of an orphanage in Gandhidham in Gujarat's
Kutch district removing two minor boys after they tested positive for
HIV. The head of the orphanage claimed that the young boys posed a risk
to the other children in the orphanage. The young boys have lost their
mother to AIDS, their father suffers from mental illness and no one else
in their family is willing to look after them. So these boys - aged six
and nine - barely recovered from the grief of having lost a parent,
found themselves being taken out of their family and put in an
unfamiliar orphanage, and being thrown out of even that place.
This story is neither unusual nor is it new. Across the country, Indians
living with HIV face neglect, discrimination and violence. Sometimes we
hear about it, sometimes we don't. We heard about the two children in
Kerala who were forced out of their school when parents of other
students threatened to pull their children out of school. We did not
read about the man who died from AIDS and was refused burial services;
we did not hear about the man who lost his job at a privately owned
factory after his employers found out he was HIV+; news channels did not
interview the pregnant woman living with HIV who delivered her baby all
by herself isolated in a delivery room with no help from doctors or
nurses.
All these situations have occurred with unnerving frequency in India in
the last few years despite government policies that espouse a humane
response.
We know that there are limited modes of HIV transmission and even in
those the chances of acquiring infection are limited. So why are we
facing an epidemic - an epidemic that, despite seemingly large programs
of information and awareness, continues to threaten millions of lives?
Twenty years into the HIV epidemic in India, the likely outcome of an
HIV+ test is the loss of jobs, denial of education for children, refusal
of treatment in hospitals. Are we surprised that people would rather not
get themselves tested for HIV?
In what has been called the 'feminization' of the epidemic, one in three
persons living with HIV in India is now a woman. Women and girls find
themselves cut off from traditional sources of health and HIV prevention
information - schools, colleges, health centers. The National Family
Health Survey of 1998-99 estimated that one-third of women who had heard
of AIDS did not know any way of avoiding it and women who were poor,
illiterate, belonged to a scheduled tribe or were not regularly exposed
to any media were most likely not to know any way of avoiding the
infection. In a more recent study by the National Council for Applied
Economic Research, 40 per cent of women reported little say in when and
how they had sex and in getting their partners to use condoms.
And in all this, law has played its own role in perpetuating
vulnerability to HIV and not offering any redress for the
discrimination, neglect and violence faced by persons living with HIV.
The law has failed to help because there is a lack of clarity on the
legal redressal options available to HIV+ persons, particularly in the
private sector, which is not covered by the constitutional guarantee of
equality.
Laws that criminalize sex workers, injecting drug users and men who have
sex with men have repeatedly disrupted health services launched by the
government itself! Unequal marriage, property, custody and maintenance
laws keep women trapped in discriminatory and violent marriages -
violence that is at times condoned by India's criminal laws, which
continue to enshrine a colonial marital rape exemption; it is a
distinction irreconcilable with our constitutional guarantees of
equality, life and health.
India needs a clearly articulated legal response in these unjustifiable
circumstances. The need for legislation on HIV has led to a unique
government and civil society initiative to draft just such a law. A
three-year process of intensive research and extensive consultation will
soon see the introduction of the HIV/AIDS Bill 2006 in Parliament. At
present, the Bill is being considered by the Ministry of Health and the
National AIDS Control Organization. The health minister, in fact,
recently announced that the Bill will be introduced in the 2007 budget
session of Parliament.
Drafted by the Lawyers Collective HIV/AIDS Unit (LCHAU) - in
consultation with the government, persons living with HIV, vulnerable
groups, healthcare providers, women, children and young persons, NGOs
working on HIV and trade unions - this Bill embodies principles of human
rights and seeks to establish a humane and egalitarian legal regime to
support India's prevention, treatment, care and support efforts
vis-à-vis the epidemic.
The HIV/AIDS Bill 2006 addresses issues of discrimination in employment,
healthcare, education and other settings, informed consent for testing,
treatment and research, confidentiality and access to treatment.
Importantly, it also provides for a safe working environment for
healthcare workers, protection for risk reduction programs (like
targeted interventions with vulnerable groups), special provisions for
women, children and young persons, and provides for innovative grievance
redressal mechanisms.
The recognition of rights is complimented with provisions for the
practical realization of these rights - an issue that was highlighted by
the consultations. As one young participant said, "After my father died,
I have been working at a coconut shop to take care of my two sisters and
myself. Our house is in our father's name. He has a bank account with
some money, which we wanted to use to repair the house. But the bank
won't let us take out the money saying we are minors so our signatures
are not valid. We have no other family or relatives to help us." The
Bill, accordingly, recognizes the guardianship of older siblings for
purposes such as admission to schools, operating bank accounts etc.
It also recognizes the right of children and young persons to access
healthcare services and information in their own right. This is
particularly important for street children and those living on their
own. It also provides for protection of inheritance and property rights
and recognizes community-based alternatives to institutionalization for
vulnerable and affected children. Similarly, in many other spheres, the
Bill ensures access to information and healthcare services for
marginalized populations and for women and girls.
Thus, the Bill envisages a detailed and carefully planned strategy to
address the HIV epidemic through an extensive prevention, care,
treatment and support programme that entails:
-
widely
disseminated and easily accessible IEC (information, education,
communication);
-
an
accountable and accessible government response;
-
access to
healthcare services and treatment, and;
-
the
protection and promotion of the rights of persons living
with/affected by HIV/AIDS.
Ultimately,
the vision of the Bill is to create a strategy to tackle the HIV
epidemic where every person is a stakeholder, every voice is included
and no one is left behind. It hopes to create a strategy that will at
the end of the day strengthen our public health system and help the
epidemic emerge from the underground, so that HIV/AIDS is no longer a
synonym for fear, neglect, discrimination and violence but for
empowerment, compassion, united action and triumph.
(Kajal Bhardwaj is a legal researcher
who has worked with Lawyers Collective HIV/AIDS Unit on the HIV/AIDS
Bill since 2003.)
December 17,
2006
By arrangement with
Women's Feature Service
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Health
The Week of December 17, 2006
India: The Shining, The Suffering and The
Pampered by Dr. Subhash Kapila
Modus Operandi of Empires by Gaurang Bhatt, MD
China: Balancing Power Relations in South and
South-East Asia
by Col. Rahul K. Bhonsle
Special Economic Zones: Boon or Disaster? by
Ramesh Menon
Manmohan Singh's Dangerous Declaration of 2006
by V. Sundaram
Health of Nations by J. Ajithkumar
Is there non-discriminatory Rule of Law in India?
by V. Sundaram
In Their Right Minds by Linda Light
Ethnic Issue Overtakes Nepal's Class War? by
Rita Manchanda
Looking Ahead in Gujarat by Manjari Sewak
Look Who's Talking! by Manisha Parekh
World Brotherhood: Love and Peace through
Poetry by Shernaz Wadia
Science, Arts and Literature for Human Culture
by TA Ramesh
River from the Land of Mystique Spells Doom
by VK Joshi
Keeping Thyroids in Order by Fehmida Zakeer
HIV/AIDS Bill -Pushing the Legal Envelop by
Kajal Bhardwaj
Papiya Ghosh: From JS to an End by Dr. Amitabh
Mitra
Hope for Battered Women by Marlinelza B. de
Oliveira
Homework for Men by Mini Sharma
The Perversity of Periyarana by V. Sundaram
A Shadow from Past Life a Story by Manasi Dutt
Romancing the Desert by Attreyee Roy Chowdhury
A Rebel of Innocence - 3 by Ashwini Ahuja
Roads in Chennai by Glory Sasikala Franklin
My God, What Have You Done! by Dhiraj
Bhimji Raniga
Sensationalism and the Media by Rajesh Talwar
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