It is difficult for preventive and harm reduction strategies to reach marginalised populations - who are often most at risk - because the law sees them as criminals. Atiya Bose and Kajal Bhardwaj of the Lawyers Collective argue for a change in such laws regarding MSM, sex workers and injecting drug users
There is ample epidemiological and demographic evidence from the trajectory of the HIV pandemic to show that certain populations are more vulnerable to infection because of the particular social, cultural, economic and legal circumstances to which they are subject. In India, it has been seen that marginalised populations that live in an environment of inequity, criminalisation, oppression and violence have an increased vulnerability to HIV and AIDS, and have been disproportionately affected by it. Some of these vulnerable groups are injecting drug users, sex workers, and men who have sex with men. All three groups engage in behaviours that are known to be high-risk given that the routes of transmission of the disease are through sexual intercourse, and via blood.
The vulnerability of these groups stems from the fact that behaviours associated with them are considered criminal, are socially disapproved, and lead consequently to their needs and rights being trampled or neglected and to their marginalisation. Their access to healthcare and prevention services is accordingly impeded. Ironically, the government runs several HIV programmes with these groups which are often hampered, or in some cases completely disrupted, by law enforcers acting in conformity with criminal laws.
Injecting Drug Users
Although injecting drug use occurs throughout the country, HIV prevalence among injecting drug users (IDUs) in northeast India is among the highest in the world. Injecting drug use is a known risk-factor in the transmission of HIV because of the dangers inherent in sharing needles that might be infected. The use of drugs also significantly impairs a person’s judgment regarding risky behaviour in general. Since drug use is a criminal offence, drug users are forced to live under the radar, and on the periphery of society and out of reach of health care services and information. This prevents drug users from accessing prevention, harm reduction and treatment information and services.
‘Harm reduction’, is the umbrella term used to explain interventions that aim to reduce the negative health consequences of a specific behaviour (ie drug use) rather than eradicate the behaviour. The two most widely practised models of harm reduction in the context of drug use are needle syringe and exchange programmes, or NSEPs (where clean needles are provided in exchange for used ones in order to reduce the risk of transmission of HIV and other blood borne diseases) and drug substitution programmes (where drug users are weaned off illegal opiates by being put on a regimen of buprenorphine in a supervised and regulated setting).
Both these interventions are controversial because they are seen as abetting the criminal offence of drug use - giving a drug user a clean needle, which is drug apparatus, assists him in the crime of injecting drugs. Studies show that these programmes are successful in controlling the spread of HIV without increasing drug use while also bringing down crime. Although these programmes do exist in some parts of India, they do so despite the law and are constantly in fear of being caught, harassed and even shut down. The absence of laws protecting such crucial interventions leaves them open to the caprice of law enforcement personnel in preventing or permitting them.
At the very least there has to be legal recognition of harm reduction programmes in a manner whereby drug users accessing such programmes and individuals managing them are excluded from the ambit of criminalisation for possession, use, consumption and abetment and are protected from harassment and other excesses by law enforcement.
The HIV epidemic has increased the attention paid to sexual behaviours particularly the behaviours of populations that have multiple sexual partners. In this context, sex workers have come to be seen as a “high risk group”, being susceptible to sexually transmissible infections and HIV. Concerns about the spread of HIV from high risk groups into the bridge (clients) and general populations (regular sexual partners of clients including wives) led to the introduction of HIV prevention interventions among sex workers.
Such intervention efforts brought to light some of the experiences of sex workers, including the difficulty in insisting on condom use and safer practices. These experiences revealed that the ability to practice safer sex in sex work settings depends on a range of factors including information and access to preventive measures, the extent of control exerted by other agents including madams, touts, pimps, brothel owners, clients, and the fear of external agents like the police. The socio-economic and legal context to sex work is the larger backdrop in which the sex worker’s vulnerability to HIV infection emerges and gets perpetuated.
To understand the nexus between sex work, HIV and criminal law, it is critical to examine the extent to which the rights of sex workers are either protected or violated by the State and the strategies that are adopted to change, reduce, or eliminate the selling of sexual services. Criminal sanctions imposed upon sex work push them underground into hidden and dangerous settings where they have minimal control over their health, safety and earnings. When sex workers are forced to negotiate their livelihood in conditions of fear, insecurity and exploitation, health and HIV concerns become low priorities. Criminalisation adds to the existing stigma and negative attitudes attached to sex work thereby making it even harder for persons in sex work to access information, health care and treatment, HIV and AIDS education and prophylaxis.
The Immoral Trafficking Prevention Act, 1986 (ITPA), the main statute dealing with sex work in India, does not criminalise prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring. There are exceptions, however, and practising prostitution in the vicinity of public places and solicitation are two activities for which sex workers are penalised. Over 90% of all “trafficking” convictions are under provisions relating to these activities, and not for the more serious acts that the legislation is intended to curtail. In other words, 90% of the time it is the sex worker who is arrested, harassed or penalised for a “trafficking” crime.
Moreover, the criminalisation of soliciting for sex greatly diminishes the sex worker’s ability to negotiate the terms of services, including income and condom use and pushes sex workers underground or into ghettoised locations where they are difficult to reach and more vulnerable to abuse. Peer-based interventions have been hampered as women carrying condoms are apprehended by the local police on charges of ‘promoting prostitution.’ Ironically, the same sex workers who are engaged by one arm of the government to distribute condoms and carry out HIV prevention efforts among sex workers are criminalised by another arm for doing the same.
ITPA also gives immense power to the police and to magistrates to conduct searches, remove, evict and detain sex workers leading to the severest forms of human rights violations against individual sex workers and the community as a whole. Further, it prescribes certain ‘rescue’ and ‘raid’ measures without consideration of the age and volition of the person being ‘rescued’. This have not only led to a violation of rights of persons in sex work but has also proven to be counterproductive for HIV interventions.
For example, in 2003, the police carried out a series of raids in Chakla Bazaar, the red-light district of Surat in Gujrat. They entered private premises without search warrants, destroyed property, arrested residents and forcibly evicted women from their place of work/residence rendering them homeless. Many women were harassed and physically abused, and hundreds of sex workers were prevented from earning a living. Approximately 1500 women were affected by the police actions.
The police invoked certain provisions of ITPA, to justify their actions. These included Section 7 (1)(b) wherein carrying out prostitution in a notified area is an offence (Chakla Bazaar had been notified pursuant to a circular issued by the commissioner of police in 2000 - as allowed by the ITPA section, because of proximity to educational and religious institutions - although it has a 400-year-old history of being the area where sex workers live/work); Section 14, which makes offences cognisable ie allows arrests without warrants; and Section 15, which allows for search without a warrant.
In response to the police action, Sahyog Mahila Mandal, a sex workers collective from Chakla Bazaar petitioned the Gujarat High Court, challenging the above provisions of ITPA on grounds that they violated the fundamental rights guaranteed under Articles 14 (Equality before law), 19 (Right to freedom of speech) and 21 (Right to life and personal liberty- and thereby livelihood). They also challenged the notification of Chakla Bazaar making prostitution in those areas an offence. The court’s judgment in Sahyog Mahila Mandal & another v. State of Gujarat & Ors [Special Civil Application No 15195 of 2003 with Special Civil Application No 4594 of 2003] was as follows:
- The court rejected the sex workers’ contention that sex work ought to be recognised as a legitimate means of livelihood and that they should be permitted to carry on their work outside the notified area, holding instead that allowing prostitution would mean an open invitation to trafficking in women.
- The court further held that the restriction of personal liberty imposed by Section 7, ie, the deprivation of liberty to carry on prostitution in public places, is in the interest of the general public and is in keeping with procedures established by law as well as the Convention for Suppression of Trafficking in Persons and of the Exploitation of Prostitution of Others to which India is a signatory. It also held that the right to privacy is not absolute and unlimited and must be balanced with the needs of the community and with other rights. Intruding into the sphere of sex between two people that was “indiscriminate” and “for reward” is not an invasion of privacy, because “by making her sexual services available for hire to strangers in the market-place, the sex worker empties the sex act of much of its private and intimate character.”
- The court also said that IPTA was aimed at combating trafficking, and that rescuing and rehabilitating trafficked women was a part of its objective. Therefore, the special powers given to the police (search without a warrant) did not violate any fundamental rights.
- The court directed the state government to form a State Level Rehabilitation Committee (SLRC) and a Local Cell to look into the grievances of the affected women and girls who deserve to be rescued and rehabilitated under the ITPA.
The impact of this judgment was that it drove sex workers underground, and even the government-run HIV prevention programme among sex workers witnessed a decline in delivery of condoms and a concomitant rise in prevalence of sexually transmitted infections. Similarly, in 2004 in Baina in Goa, efforts to introduce risk reduction practices among sex workers were interrupted after the red light area was demolished. For several months, displaced sex workers were seen soliciting on the streets for survival, at the cost of condoms and HIV protection.
At present, the government is considering amendments to ITPA which sex workers’ organisations are arguing will lead to their further harassment and the disruption of HIV prevention programmes.
Men Who Have Sex with Men
In India, as in many other parts of the world, men who have sex with men (MSM) have a heightened vulnerability to HIV. The vulnerability arises in part from the increased risk of HIV infection during penetrative, particularly unprotected, anal sex, but an equal, if not greater cause for vulnerability is the stigma attached to male-to-male sex that causes discrimination and criminalisation, and enforces a silence around such acts that raise significant barriers in imparting information about health risks in an objective and scientific manner.
In India, Section 377 of the Indian Penal Code (IPC) criminalises sodomy thereby criminalising consensual sex between men. The impact of Section 377 on MSM is severe. This law, combined with local police acts and laws on public nuisance, obscenity, abetment and criminal conspiracy, is used by law enforcement agencies and officials to exploit, threaten, harass, blackmail and perpetrate other forms of violence against MSM.
Criminalisation of MSM also perpetuates negative and discriminatory beliefs towards same-sex relations and this misinformation is often used by the Indian medical community to conduct ‘aversion therapy’ on MSM (involving inhumane methods of electric shock ‘treatment’). MSM are thus pushed to the fringes of society where spaces are unavailable to negotiate stable relationships, safe sex and access to information and medical services that should be provided free of discrimination and social censure. As a result MSM vulnerability to HIV is greatly increased. Also, many MSM in India are married men, and so there is an increase in vulnerability to HIV infection for their spouses and families too.
These laws have also been used to disrupt the work of NGOs working with MSM in the field of HIV and AIDS. For instance, in July 2001 the premises of an NGO in Lucknow, that worked on sexual health awareness programmes with the MSM population was raided. Its workers were arrested on charges of abetting a crime under Section 377, and for violating obscenity laws for publishing safe-sex messages, distributing condoms to MSM and explaining the dangers of HIV/AIDS. It was only after 47 days in jail that the workers were granted bail.
Decriminalising adult consensual sexual activity between men and creating a positive legal and social environment where their rights are guaranteed, and where they can access health information without fear of reprisal is the most effective way to reduce the vulnerability of MSM to the risk of HIV infection.
To this end, in 2001, Naz Foundation filed a public interest litigation before the Delhi High Court challenging the constitutional validity of Section 377 and asking that the provision be read down to exclude adult consensual sexual activity; as Section 377 is also the law that is used to address child sexual abuse in India its complete repeal has not been prayed for.
The High Court passed an order dismissing the petition stating among other things that Naz Foundation had no standing to file the case since they were not themselves being prosecuted under Section 377, that a petition could not be filed to test the validity of any legislation, and also that it would not consider an academic challenge to the constitutionality of a provision.
This ruling relied on outdated case law and ignored the fact that Naz had filed a public interest litigation, in which a petitioner is not required to have ‘standing’ (or locus standi, in legal parlance). Naz Foundation then approached the Supreme Court challenging the Delhi Court’s dismissal.
In Naz Foundation v. Govt. of N.C.T. of Delhi and Others, [SLP No. 7217-7218 of 2005], the Supreme Court set aside the order of the Delhi High Court and remanded the case back to the High Court for a decision. The Supreme Court observed that the matter did not deal with an academic question and that it was a public interest issue that was being debated all over the world. The case is at present before the Delhi High Court. NACO (National Aids Control Organisation) in its reply to the court has acknowledged that Section 377 hampers its prevention programmes with MSM. Although it has been well over a year since the case was remanded to the high court, there has been no further action.
(Atiya Bose is media and communications officer and Kajal Bhardwaj is head of the technical and policy unit at the Lawyers Collective HIV/AIDS Unit. The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realization that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by or vulnerable to HIV and undertakes advocacy and research initiatives related to law, rights and HIV.)
© Lawyers Collective HIV/AIDS Unit www.lawyerscollective.org
Infochange News & Features, February 2008