InterPress News Service (IPS); 21 October 1997
Mitu Varma

It turned him into India's best known HIV/AIDS activist. D'souza has since succumbed to the disease. But the Act under which he was arrested, though rarely invoked, still remains in the statute book.

Goa was the first state in India to introduce a law on HIV/AIDS. The Goa Public Health Amendment Act called for mandatory testing of anyone suspected to be positive and his or her mandatory isolation. There was no provision for confidentiality, and discrimination against a positive person was expected if not actively encouraged.

D'souza's mother, Lucy D'souza, challenged the Act in court through the well known Mumbai-based Human rights lawyer, Anand Grover. They won only a partial victory. The court said it would no longer be mandatory to detain positive people, except where the authorities felt it was a 'justifiable' case. D'souza challenged the verdict in the Mumbai High Court, but lost.

Grover, a leading member of the 'Lawyers' Collective', India's first body of professionals to employ their skills in responding to the challenges posed by the HIV/AIDS epidemic, says the ruling was symptomatic of the isolationist strategy as opposed to the integrationist strategy.

While the integrationist strategy encourages voluntary testing, confidentiality, lack of discrimination and integration of positive persons, the isolationist strategy advocates just the reverse. Following the ruling, the government of India moved to incorporate the latter strategy in a National AIDS law.

Fortunately lobbying by NGOs and pressure from the WHO made them change their stance. The National AIDS Control Organisation (NACO) then decided in favour of the integrationist approach, with education and information as the cornerstone of their prevention regime. But there were no legal enactments to consolidate the strategy.

Says Grover: "The integrationist strategy ... has to be backed up by legislation to prevent the spread of the infection and also strengthen the rights of HIV positive persons ... The legal regime in India is inadequate to protect these rights." Except for discrimination, which is governed by the Constitution, most HIV/AIDS issues in India, barring Goa, are governed by common or judge-made law.

In practice, experts say, it is the isolationist strategy that is being followed with a rapidly rising number of cases of mandatory testing, isolation of positive people, breach of confidentiality, discrimination and harassment. This leads positive persons underground and away from responsible action that would aid prevention.

As far as testing is concerned, the integrationist approach rests on informed consent. This implies pre- and post-test counselling to prepare the patient for the implications of a positive or negative result. But in practice, this is not followed at all. A lawyer in Mumbai jumped to his death from a hospital window after he was casually informed that he had tested positive.

Besides forced testing has been actively encouraged by at least two recent judgements. The apex Supreme Court, in a judgement concerning sex workers in the city of Agra, laid down that they could be tested for HIV regardless of their consent. The Mumbai High Court on its own initiative, ordered the arrest of 400 minor sex workers and their mandatory screening for HIV.

Then there is the question of confidentiality. In a recent case a doctor accompanied his relative to a hospital in another town for an operation and offered to donate blood. His blood was tested but not used. When the relative called up after some months to find out why this was so, he was told the doctor had tested HIV positive.

The relative informed the whole town, the doctor's marriage was cancelled and he had to flee from the state. He is now contemplating suing the hospital.

As far as discrimination against positive persons is concerned, the Collective has been handling a number of cases. One of these relates to the wife of an Indian Navy personnel who was infected through blood transfused in the Navy Hospital. The Navy moved the family to Mumbai ostensibly for treatment, but then they were asked to vacate the Naval quarters.

The wife has sued for compensation for the infection and also asked that her family be allowed to continue in the naval quarters. She has already received an interim order letting her stay in the Naval quarters. The question of compensation still remains to be decided.

India's first woman police officer and Magsaysay award winner, Kiran Bedi, created a storm when she launched a programme for distribution of condoms in prison to prevent STDs and AIDS. An organisation against the move filed a petition in the Delhi High Court saying the action encouraged homosexuality which is an offense under the Indian Penal Code.

In the interim, another organisation filed a writ petition challenging the section of the Penal code that outlaws homosexuality. The matter is still sub judice and has provided the government a convenient excuse for not taking any decision in this regard, the Collective alleges.

By far the most important case that concerns both discrimination and confidentiality is Mr MX versus Mr ZY decided in the Mumbai High Court in April this year. A casual worker in a government owned concern was sacked after he was tested without his consent and turned out to be HIV positive. The test was done prior to confirming him as a permanent employee.

After filing a petition for reinstatement, the worker, through the Collective, filed an order for suppression of his identity, as a result of which he could litigate without using his name. The court allowed that, marking a very important step in preserving confidentiality and preventing discrimination. It also ordered his reinstatement with full back wages.

Says Patrick Brenny, Country Programme Advisor, UNAIDS, "This will ... offer ... support or protection to those who, to date, have not felt able to stand up and make their voices heard. Many will still remain silent despite this judgement, because of the widespread and deep-rooted social stigma and discrimination which still characterises the bulk of society's response to HIV/AIDS."

The crux of MX's arguments was that his dismissal went against fundamental rights guaranteed by the Constitution. Says Grover, fundamental rights are only available against the state and it worked in this case because the respondent was a government run concern. In a private concern, the argument would not hold water. Besides, he says, a different judge might rule differently.

The Collective, which works from Mumbai and Delhi, with a combined staff of 12 lawyers, aided by several law students and journalists, is thus lobbying for comprehensive legislation to cover the entire gamut of human rights issues arising from the rapid spread of HIV/AIDS in India.

For this the NGO has been trying to create public opinion in favour of such law by campaigning through the mass media and lobbying influential political leaders. It has been training a nationwide network of lawyers to take such cases to court and fight for the rights of positive persons. It has also been formulating guidelines for such legislation in special workshops.

"One can now safely say that the work started by Dominic D'souza eight years ago is now on its way to completion," says Grover. Once the law is in place, D'souza's indomitable spirit may finally rest in peace. (End/IPS/mv/an/97)

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