Punitive laws drive the affected populations underground: NACO

“We have found that the biggest problem with punitive laws is that they drive the affected populations underground” said Aradhana Johri, Additional Secretary, National AIDS Control Organization (NACO), Department of AIDS Control, Government of India. She was speaking as one of the panelists at the ‘The Road Ahead Section 377’ roundtable organized by the United Nations Development Programme (UNDP) India in association with Naz Foundation International (NFI), Article 39: Centre for Legal Aid and Rights, and Project DIVA

NACO recognizes men who have sex with men (MSM), transgender and hijra populations, sex workers and injecting drug users (IDUs) as the sub-populations that have the highest risk of exposure to HIV. Safer sex practices are critical to preventing the spread of HIV. The existing social and legal environment, gendered relations between sexual partners and levels of awareness about safer sex practices influence HIV prevention, treatment, care and support programmes for these high risk groups (HRGs).

According to the NACO’s Annual Report 2010-2011, the HIV prevalence among the HRGs is about 20 times higher than the general population. Based on HIV Sentinel Surveillance 2008-09, it is estimated that India has an adult prevalence of 0.31 percent with 2.39 million people infected with HIV. The overall HIV prevalence among different population groups in 2008-09 continues to portray the concentrated epidemic in India, with a very high prevalence among HRGs: IDUs (9.19%), MSM (7.3%), and female sex workers (4.94%).

NACO has given significant thrust to the interventions for HRGs including MSM and transgender people. The NACO estimation in 2009 revised the numbers of MSM and transgender people to 412,000. Through targeted interventions (TIs), 285,000 ( 69%) MSM and transgender people have been covered with services. There are 200 TIs for MSM and transgender populations and 404 exclusive TIs for transgender populations, said Aradhana Johri.

She recalled her visit soon after joining NACO to Bagalkot, Karnataka, where she met and interacted with sex workers too. When she asked a young girl “How old are you?” the girl replied whether she wanted to know the truth or ‘legal truth’. Punitive laws are driving the populations underground making it all the more difficult to render HIV prevention and care services. 

She referred to another example where two NGOs in Uttar Pradesh working among MSM population vulnerable to HIV infection became targets of harassment by the police, the public and the media due to Section 377 of Indian Penal Code (IPC). Although Delhi High Court judgment in July 2009 had read down this punitive Section 377 legalizing same-sex behavior, but back then in 2001, punitive laws were adversely impacting health interventions for marginalized populations.

On July 6, 2001, the Uttar Pradesh police had arbitrarily arrested four members of these two NGOs (Bharosa Trust and Naz Foundation International – NFI) involved in HIV-related work among MSM populations, raided their office premises and seized educational material. Four people from these two NGOs were charged under Sections 377 (unnatural offences), and 292 (sale of obscene books etc) among other sections of the IPC and were in prison for 47 days. Their bail applications were rejected twice, first by the Chief Judicial Magistrate (CJM) and then by the District Judge, Lucknow. The CJM denied them bail stating that "the work of the accused is like a curse on society". The Sessions Judge upheld the arguments of the prosecution, which held that "they were a group of persons indulging in these activities and are polluting the entire society by encouraging young persons and abetting them for committing the offence of sodomy…” The bail could happen only after the intervention in UP High Court by two senior lawyers, Indira Jaising and Anand Grover of the Lawyers Collective. The four NGO team members were bailed out only after the Public Prosecutor had stated that no link between the incident of July 6, 2001 and the NGOs could be established. A medical examination was done on all the four but no evidence to charge them under Section 377 was found. Yet they had to face punishment under this punitive law which also disrupted the important service they were rendering to MSM populations on HIV prevention.

Johri referred to another incident that happened in 2000 with a group that was based in the hills of UP state (now this region falls under Uttarakhand state). This organisation had conducted a study on the prevalence of HIV/AIDS in the hills and the report contained interviews which detailed to an extent the sexual behaviour of some people. Neither was it a status-report for the entire hill region nor did it jump to any conclusions, but right-wing protesters saw to it that the organisation stopped functioning. Its office was vandalised and its staff, including women, were humiliated publicly. They were arrested under National Security Act (NSA) which is one of the most draconian laws. 

She said that at NACO they are working with marginalized groups such as sex workers, MSM, transgender and hijra populations, injecting drug users (IDUs) and any police raid in their offices sets the NACO programme back by so much time, may be several months to years. HIV prevention services are definitely disrupted as a result of punitive laws and we have found that everywhere, said Aradhana Johri.

Referring to the gender-based biases entrenched in our society, Aradhana Johri shared that during her service years, she was often confronted with the stereotype - ‘men are assumed competent until proven otherwise, and women are assumed incompetent until proven otherwise’. Wherever anybody is the controller of the power structure such biases are likely to gain strength, said Johri. There is a certain positive change with reducing gender-based inequalities that impact a woman's life, but there is still a long way to go.

It took considerable effort from NACO's end to push normalization of harm reduction in context of HIV interventions for IDUs, and bring it in the policies of Ministries of Home, and Social Justice and Empowerment. For example in relation to harm reduction programmes, initially the Ministries of Social Justice and Empowerment, and Home, felt that harm reduction is unethical and the injecting drug users (IDUs) need de-addiction programmes, and other judgmental arguments influenced their stand. But till de-addiction didn’t happen we got to do harm reduction and prevent HIV transmission” said Johri. She said persisting with the advocacy is very important and due to NACO’s continued persistence on pushing harm reduction, finally it became a part of the policies of both: Ministries of Social Justice and Empowerment, and Home.

She was clearly bringing out a major challenge over the coming years – normalization of the marginalized LGBT communities in the country. Policies of different ministries should be harmonized to support not only the decriminalization of the same sex behavior but also to promote other social entitlements and rights for our citizens. NACO is also trying to sensitize police and law enforcers and also the political leaders. Normalization process is important and should go on, rightly said Aradhana Johri.

Countries that continue to criminalize same sex behaviours have a lot to learn from India. The forthcoming XIX International AIDS Conference (AIDS 2012) in US later this month will provide that opportunity. Also India has a lot to learn and adapt from other nations where LGBT populations are far more part of the mainstream population than in our own turf.

Normalizing marginalized groups that are discriminated against in the society is surely an important step ahead. Not only punitive laws should be read down but also we need generic laws that apply to all for a just and social order. 

Bobby Ramakant - CNS

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