Prisoners

The importance of a rights-based approach to HIV/AIDS legislation is brought into sharp focus in the context of prisons and the criminal justice system. Since the start of the epidemic, prison populations have been subject to coercive measuresthat are not used in the general community, such as segregation, isolation and mandatory HIV testing.

The vulnerability of prisoners to HIV infection is increased by potentially unsafe behaviours, such as, sexual activity (coerced and consensual), or tattooing and needle and syringe sharing, particularly given that a large number of convictions are drug-related. Prisoners' exposure to risk is also heightened due to floating populations of undertrials and the often closed, overcrowded, violent and unsafe environments in prisons. Once infected, incarcerated men and women are also more vulnerable to various violations of human rights by the correctional facility as well as the medical establishment.

In India, the courts have acknowledged and followed current trends in penological thought and several judgments recognise a wide array of fundamental and other rights of prisoners. However, there have been few, if any, amendments to legislation along these lines and judgments are seldom enforced. The Prisons Act of 1894 has not been thoroughly revised in over a 100 years and many State Prison Manuals still provide for draconian measures such as whipping and reduction of food rations as acceptable forms of punishment. The scope for corruption, abuse, harassment and favouritism is also widened by the extent to which these manuals grant discretionary powers to prison officials, particularly the Superintendent.

This article explores the key human rights issues that emerge in the context of prisons and the HIV epidemic through an analysis of case law from around the world. At common law, mandatory HIV testing of prisoners without informed consent is a violation of prisoners' rights unless the results are to be used to further other penological interests. However, one of the main barriers to voluntary testing and counselling is that under the best of conditions, confidentiality is difficult to maintain in a small prison community. The lack of privacy inherent to the prison environment contributes to the experience of discrimination for prisoners living with HIV. One of the strategies used by prison authorities to control the spread of HIV is segregated housing and the exclusion of HIV positive prisoners from some or all prison programs. The article discusses the reasons for rejecting this strategy as well as the importance of maintaining medical confidentiality to protect HIV positive prisoners from discrimination.

Once prisoners test positive, their chances of receiving necessary and adequate care are very low. As it is, medical care for prisoners all around the world is often abysmal due to the pressures of overcrowding and the security priorities of the prison authorities. Prisoners living with HIV/AIDS should have access to medical treatment at the same standard as is available to members of the public. A prisoner's right to access care is an integral part of her/his right to life enshrined in Article 21 of the Indian Constitution. It is intrinsic in the State's duty of care to individuals in its custody. State accountability for prisoners' rights is usually determined in terms of negligence, deliberate indifference and inhumane or degrading treatment. Courts have recognised the severe impact of HIV/AIDS on a prisoner's life and have sought to minimise this by granting compassionate bail or release.

Along with access to information and strategies for negotiating harm reduction in prisons, easy and discreet access to condoms, lubricants and dental dams are crucial for ensuring a safe and non-judgmental environment where prisoners can reduce the potential harm of exposure to risk. Similarly, access to appropriate sterilising substances, information about their use, and access to drug treatment programs are important harm reduction tools. The refusal of prison authorities to recognise the extent of injecting drug use and unprotected sexual activity and the lack of programs to address the risks involved in such behaviours, leads to the increased risk of HIV transmission. In prisons, in particular, this denial results in the increased vulnerability of inmates because it prevents the development of adequate harm reduction mechanisms and denies prisoners the right to achieve the highest attainable standard of health.

The article also highlights the multiple challenges faced by women prisoners. The vulnerabilities that women face on the outside aggravate problems they encounter in the correctional environment, thus augmenting the challenges of protecting women prisoners from HIV transmission. Sexual violence and other forms of abuse by prison staff and other inmates are also commonplace in the lives of incarcerated women increasing their vulnerabilities and violating their human rights. Prison health systems are rarely equipped to deal with the health needs of women and where health infrastructure exists, more than likely it was designed to meet the needs of male inmates and is only adapted to treat female inmate patients.

Finally, the article discusses the need for prison reform in India in the context of HIV/AIDS and human rights and attempts made in this direction by States thus far. The paper argues for an immediate review of the State Prison Manuals and the Prisons Act of 1894 and the institution of more humane legislation in the form of 'Correctional Services Acts' as has been initiated in West Bengal. Further it calls for a more realistic approach to understanding risk behaviour within prisons and providing for methods of harm reduction - goals that can only be achieved if Section 377 of the Indian Penal Code is repealed and the Narcotic Drugs and Psychotropic Substances Act, 1985 is amended and enforced more judiciously. Finally it is essential to develop sexual health interventions that are based on peer education models to improve the sexual health of prisoners and reduce the prevalence of STDs and HIV among the inmates.