Our initiatives

The Lawyers Collective Women’s Rights Initiative (“LCWRI”)’s mission is the empowerment of women through law. This is based on the belief that law is an instrument of social change and can be used in different ways to further the constitutional and human rights of women. Since its inception in 1998, the LCWRI has been actively engaged with the entire legal regime of addressing the rights of women in law.

Despite decades of concerted efforts by NGOs and civil society, the overall status of women and their legal entitlements still call for long struggles. Even today, women occupy a devalued position in society. This is manifested in different forms of grave human rights violations such as domestic / sexual violence, sexual harassment at the workplace, identity based gender violence and sex selective abortions to name a few. These forms of violence result in the negation of equality rights of women. It is also in the exclusion from all public spaces and spheres of activities such as meaningful employment. In the absence of a state sponsored social security network and unemployment guarantees, they become dependent on their male relatives for protection and support doing them further into the trap of violence.

The LCWRI provides legal inputs to the women’s movement. The LCWRI through its experience of providing legal aid to survivors of sex based discrimination, violence, abuse and crimes, has realised the need to analyse the working of the laws and investigate ground realities when it comes to implementing laws relating to women. At the LCWRI, our objective has always been to find out the efficacy and relevance of legislation and legal systems and recommend its better use, as well as to initiate and spearhead law reform processes, whenever required. Law reform recommendations are formulated by keeping in mind the lived realities of women. The recommendations put forth by the LCWRI are directed not only towards recognising equality rights of women but also towards creating an enabling environment in which such rights can be asserted. The LCWRI’s efforts in creating legal awareness are guided by the overall objective of empowering women.

The work of the LCWRI has in the past years have focused on a wide range of issues such as domestic violence, sexual harassment at the workplace, sexual assault, reproductive rights, trafficking / commercial sexual exploitation, violence faced by victims of religious intolerance etc. Our most successful campaign has been the enactment of the Protection of Women from Domestic Violence Act in 2005. The success of this campaign heralds in a new era of law making in which the demand for a law is articulated by the civil society and the content of the law is arrived at through a consultative process directed at consensus building. This successful experiment, at the initiative of the LCWRI, has demonstrated that the process of law making is no longer the sole preserve of the state but is participatory with civil society.

Rationale adopted by the LCWRI :

The LCWRI was set up with the mission of empowering women through law. It is based on the belief that law is an instrument of social change and can be used in different ways to further the constitutional rights of women.

Identifying areas of focus :

At the time of its initiation, the LCWRI received numerous requests from organisations across the country to pursue litigation on trafficking in women and children, prosecutions for rape against powerful politicians and implementation of laws relating to the ban on sex pre-selection. Each of these issues presented a grave violation of women’s rights. A policy decision was therefore taken to bifurcate the litigation load of the LCWRI into PIL’s to be filed to realise equality rights of women on broad based issues and to pursue routine cases on focus areas.

In the early stages violence against women was identified as one of the biggest stumbling blocks to the empowerment of women. Hence it was decided that area of focus while undertaking routine cases would be aspects concerning violence against women with particular emphasis on the issue of domestic violence. There was a twofold objective behind taking on cases on domestic violence. First, violence is in the private sphere, the family was not addressed by the law and remained hidden. It was identified as one of the major impediments to the development of women and their participation in the public sphere. Secondly, it trained young lawyers in court procedures and allowed for discerning trends in patterns of violence faced by women and decision-making by women in this context. The first hand information collected through this process informs any law reform proposals that the LCWRI has made in its years of existence. The impetus for our successful campaign for a civil law on domestic violence was gathered from our experience of providing legal aid to women facing domestic violence.

Viewing focus issues through the lens of substantive equality :

The LCWRI views all issues concerning women through the lens of anti-discrimination and equality. This allows us to contextualise wide-ranging issues within the lived realities of women and suggest a holistic approach in dealing with such issues.

Domestic Violence

Domestic violence is a manifestation of inequality within the home. It is therefore, not enough to advocate for the implementation of laws criminalising domestic violence. There is a need to create an enabling environment in which a woman is able to assert her rights and seek legal recourse. It is, therefore, essential to address the inequality within the home and recognise rights that counter such inequality to enable women to seek legal action. Given the lack of support a woman is provided with, it is unlikely that a woman will ever resort to legal remedies unless she is assured, at a minimum, of a right to reside in her home. This has a bearing on property and matrimonial rights of women that are currently within the realm of separate personal laws of religious communities. The right to reside that has been recognised through our campaign for a civil law on domestic violence is applicable only in circumstances of violence. In order to recognise women as equal stakeholders within the family, it is essential to review personal laws governing property and matrimonial rights.

Personal laws

The Indian Constitution separately recognises the right to religion. The right to religion, as provided in the Constitution, is not an absolute right but subject to limitations based on public order and morality as well as non-derogation of other rights guaranteed under the Constitution. It is under the auspices of protecting the right to religion that discriminatory personal laws have been upheld by the Supreme Court. As women’s lives are mostly confined to their homes, the continuance of such discriminatory laws is a major impediment in pursuing the goal of substantive equality. The LCWRI has, persistently engaged with the regime of personal laws, through litigation and advocacy initiatives, in order to achieve the goal substantive equality of women. The position taken in this regard is that while religious rights of communities have to be respected, it cannot be to the detriment of women’s equality rights.

Sexual harassment at the workplace

Equality rights of women have to be recognised not only within the home but also in her interactions with the outside world. A woman’s right to a safe working environment is an essential pre-requisite for her engaging with economic processes that are not confined to the home. Hence, the LCWRI has engaged in providing legal aid to women facing sexual harassment at the workplace. Lessons learnt from this aspect of our work have been translated into the creation of legal literacy materials and drafting of a comprehensive law on sexual harassment.

Sex selection and sex selective abortions

Another example of using an equalities framework in addressing violation of women’s rights is our position on the issue of female feticide. Sex selection and sex selective abortions are one of the reasons for declining sex ratios. The law seeks to address the issue by criminalising the disclosure of the sex of the fetus detected during the provision of pre-natal diagnostic care and sex selective abortions . The process of implementation of the laws is fraught as women face the possibility of prosecution under the existing provisions of the law. A woman’s right to abortion is not recognised under Indian law; instead, there are liberal grounds under which women can seek an abortion. The quandary is to provide a theoretical basis for recognising a woman’s right to abortion while simultaneously restricting this right to prevent sex selective abortions. A right to abortion recognised as being part of a woman’s right to privacy does not have any answers for preventing sex selective abortions. After all, if a right to abortion is part of the privacy rights of women then there can be no restrictions placed on such rights. However, if the right to abortion is articulated within an equalities framework, keeping in mind the disproportionate biological and sociological burdens placed on women both during child bearing and child rearing, then restrictions can be placed if the right is used to negate the equality rights of women. Hence it is our position that, right to abortion is primarily an aspect of the right of a woman to control her own destiny and autonomy in deciding when she wants children and how many. It cannot be used to decide that she wants only male and not female children. Hence restrictions can be placed on the right to abortion in larger public interest. Declining numbers of women in the population impacts on the women as a social class. This is the aspect of public interest that requires protection while considering restrictions to the right to abortion.

Even so, the LCWRI has consistently advocated against the criminalisation of women seeking sex selective abortions under the existing legal regime on the issue and in its implementation. There must be recognition of the fact that decisions made by women are made within a patriarchal context. In our experience of providing legal aid, we have come across many instances in which domestic violence has exacerbated due to the failure of the woman to bear a male child. In these circumstances, the role of the law should only be towards the limited purpose of regulating the practice of medical professionals who are complicit in the commission of the offence.

The equality framework in relation to reproductive rights and issues of sexuality

In the equality framework adopted by the LCWRI, a special emphasis is placed on the aspect of reproductive rights and issues of sexuality. This requires an examination of the concept of equality and its interplay with the notion of reproductive rights.

Men and women are not the same because of biological differences. Despite this fact, an adherence to the “similarly situated” doctrine would mean that women would have to be like men to ensure the applicability of the guarantee of equality. Therefore, this doctrine is not reflective of the lived realities of women, particularly in their reproductive functions of child bearing, which is biologically defined and their related roles in child rearing, which is socially defined. Procreation and women’s role in it greatly contribute to the subordinate status of women in society. The right of a woman to reproductive control and access to an enabling environment to exercise this control is a crucial aspect in women’s struggle for empowerment and gaining equal opportunities. The context, therefore, compels the need for the recognition of “reproductive rights” not only to be separately articulated for women but also based on the theory of equality that does not attempt to place men as a reference for women. A recognisable and enforceable legal framework on reproductive rights is a prerequisite to the end goal of women’s empowerment.

A woman’s experience of gender inequality is based in a large part on the formulation of sexuality and the ascription of sexual roles in society. In the words of Catharine Mackinnon “sexuality is to feminism what work is to Marxism” . Defining sexual roles is, as in the case of reproduction, done with reference to a male standard and puts in place relations of dominance and subordination to the detriment of women. To work within this framework would only be to respond to standards set by men. The attempt is, again, in the words of Catharine Mackinnon, not to make legal categories that trace and trap the status quo, but confront by law the inequalities in women’s condition in order to change them .

Women’s conditions are determined in the context of concrete realities. Experiences of economic deprivation, adherence to cultural traditions and socially defined roles, gender based violence, of being the bearers of identity, have to be accounted for and reflected in the formulation of gender specific legislation and the application of “gender neutral” laws. Focus issues of the LCWRI are, therefore, contextualised in the lived realities of women. For instance, the issue of violence cannot be examined in isolation but in the context of women’s overall status in society, the nature of property ownership, traditional, cultural and religious influences that have a bearing on the nature of support she might access and the decisions that she makes.

Similarly, equality rights of women in the workplace have to be considered in the context of available livelihood options, existence of safe working environments, negotiating powers within mainstream structures, social security options and the availability of a supportive work environment.

The LCWRI’s contribution is focussed within the realm of law. However, it acknowledges the need for other forms of advocacy and its own need to forge links with other social movements to transform legal equality to social equality.

Proven Strengths :

LCWRI is based on its proven strength in the following areas

• Its proven track record of committed cause lawyering over the past 2 decades

• Its existing legal expertise and availability of trained legal personnel.

• Its interface with the judiciary, the law enforcement authorities, the police, the legal community, statutory authorities and the government.

• Its networking with partner NGO’s and experience in building national level coalitions and broad-basing the ‘ownership-stake’ of an issue to make it a community concern.

• Its accessibility to the affected community /persons who can directly approach the LCWRI, either individually or collectively.

These proven strengths of the LCWRI have been acquired over the years through the practice of the Lawyers Collective as a whole and by the LCWRI as one of its unit. The following section takes a brief look at the history of the Lawyers Collective.
The three main activity cells of the WRI are :

1. Legal Aid Component

The Cell provides quality legal services inclusive of legal advice and opinions. It also undertakes public interest litigation on behalf of different groups in an attempt to bring about progressive changes in the law. The LAC drafts complaints on behalf of the clients in civil law disputes and also prepares clients for recording statements at the Police Stations and in the court in criminal cases under Sec 498A, Sec 376, Sec 304B and other legal cases. It also initiates proceedings in higher courts for the purpose of establishing precedents, which advances women’s rights. The Cell works in close coordination with NGO’s, service providers or state agencies such as the National Commission for Women (NCW) to facilitate the client’s access to legal services.

Objectives :

1.To provide legal assistance to women facing domestic violence, sexual harassment at the workplace, victims of sexual assault, child sexual abuse, and discrimination faced in matrimonial matters.

2.To file PIL’s in order to enforce human rights standards.

3.To organise and participate in alternative dispute mechanisms, such as conducting Lok Adalats in collaboration with statutory bodies.

4.To document experiences gathered in providing legal aid

5.To facilitate a survivor’s group to support women litigants while accessing legal remedies, generating livelihood options and providing a support base for campaigns

Public interest litigation/ social action interventions :

Since 1978 there has been a substantial amount of public interest litigation undertaken on behalf of women, children and bonded labour. Public interest litigation has been an essential component of the LCWRI project from its very inception, focused as it is on legal change. Some of the major PIL’s and social action litigation filed by the LAC are Geeta Hariharan v Reserve Bank of India, Daniel Latifi v Union of India, CEHAT, MASUM and Dr Sabu George v Union of India and other, Anweshi Women’s Counselling Centre v State of Kerala, Air India and Bar Girls cases.

Survivor’s group :

In recognition of the fact that survivors of violence are in an ideal position to understand and empathise with other survivors, the LCWRI has facilitated the formation of a “Survivors group” in Mumbai. The objective of this initiative is to make this group self sustaining with limited support from the LCWRI and to draw support from this group in future to sustain legal advocacy efforts.

Participation in alternate dispute mechanisms :

The LCWRI has successfully organised and participated in 2 Lok Adalats in collaboration with the Delhi State Commission for Women and Delhi Legal Services Authority. With a little over a 50% settlement rate the results of these Lok Adalats have been a tremendous success in providing expeditious settlement and relief to the parties.

Victims of religious intolerance :

Articles 25 and 26 of the Indian Constitution recognise the fundamental right to freedom of religion. Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Despite these Constitutional guarantees, the nation’s secular fabric is frequently torn asunder. The anti-Sikh riots of 1984 and the Gujarat anti-Muslim pogrom of 2002 are glaring instances of communal violence aided and abetted by the state’s acts of commission and omission. As is well acknowledged, women bear the brunt of such violence, both as it occurs and in its aftermath. The physical and sexual offences committed against Muslim women in Gujarat reflect how women, as bearers of community identity and honour, are specifically targeted for violence. Needless to say, such extraordinary gender specific violence occurs in addition to the more routinised gender-specific discrimination that women experience within their own religious or ethnic communities.

The 2002 Gujarat pogrom prompted several organisations working on human rights to mount a co-ordinated effort to aid the victims. Immediately after the riots, the year 2002, the LCWRI sent teams of lawyers to Gujarat to provide legal assistance to victims. Since then the LCWRI has been working consistently towards seeking justice by holding the State Government of Gujarat and its functionaries accountable for their acts of omission and commission.

The LCWRI has also taken on the following activities in this regard:

• Monitoring legal proceedings in different fora

• Facilitating the setting up of networks of para-legals and lawyers to represent victims in legal proceedings.

• Training para-legals for the abovementioned purpose.

• Creating a resource base of materials and evidence collected on the Gujarat carnage and legal proceedings.

 

2. Research and Documentation Component

LCWRI is an interface between academic inquiry and social action. The research division of LCWRI is motivated by the belief that the pursuit of knowledge should be a socially relevant activity. The Research and Documentation Cell supports litigation, aids skill building and feeds advocacy by researching into issues being pursued in court. The Cell documents and collates national and international laws and practices pertaining to women’s rights and human rights. It works in close collaboration with other organizations working on similar issues and disseminates legal information in easy and readable forms. The Cell has an in-house capacity building documentation center generating publications and formulating legal manuals on gender specific laws that can be used by forums working on women’s rights and human rights issues. Our research projects and surveys have been appreciated for their scientific rigor, policy-level recommendations and action-oriented insights.

Objectives :

1.Undertaking action oriented research into human rights issues with a view to strengthen existing laws and propose new laws towards achieving the constitutional goal of equality.

2.Promoting multi-disciplinary approaches for researching on issues pertaining to human rights generally and women’s rights particularly.

3.To undertake legal research on and document and collate national and international laws and practices concerning women’s and human rights.

4.To document and collate literature, such as research papers, parliamentary proceedings, Law Commission reports, to name a few, on laws relating to women, and other marginalised groups.

5.To conduct empirical research on the implementation of laws and their impact on women’s lives.

6.Conduct investigative and fact-finding missions for supporting proceedings in court.

7.To prepare position papers, fact sheets and backgrounders on various facets of the law vis-à-vis discrimination against women.

8.To maintain a documentation centre consisting of legislation, studies, reports and cases on issues of human rights, women’s rights, constitutional law, labour rights, environmental rights, international law, and all other issues concerning social justice.

9.To collate the legal experiences of the LAC to discern trends in violence and to document the work carried out by the LCWRI on a regular basis.

10. To support the work of the LAC by undertaking research on issues that is pending before the court.

11. To support the work of advocacy and capacity building by generating resource materials for use in advocacy strategies.

12. To provide a research base to argue for law reform towards achieving constitutional goals of equality.

13. Encourage a holistic approach to the towards understanding of women’s rights from a human rights perspective by documenting influences of sociological, developmental, legal, economic, and other developments.

14. Regularly updating information on current events and press releases, etc.

 

3. Advocacy and Training Component

The organization carries out several legal literacy workshops and training programs in schools, colleges, law enforcement agencies, policy makers and local communities to senstitise women about their rights. Initiatives have been taken to create awareness for the need of law reform or create new laws in order to safeguard the needs of women in general. This is done in consultation with various NGOs and organization that are working in the same field. Over the years, the Cell has conducted workshops/consultations, participated in expert committees on empowerment of women and conducted workshops/seminars for gender awareness in laws.

Objectives :

1.Consensus building at the regional, national and international levels.

2.Forging a national and international network of organisations and individuals to advocate for the realisation of human rights in India and supporting cause lawyering efforts at the national level.

3.Spearheading national campaigns for the promulgation and implementation of human rights based laws.

4.Liasing with state/ statutory authorities for proposing new legislation

5.Forging collectives with members of the civil society to strengthen access to justice.

6.Monitoring legal developments and the implementation of specific legislation such as the Protection of Women from Domestic Violence Act, the draft law on sexual harassment at the work place, proposed amendments to sexual assault laws, laws impacting on the reproductive rights of women, trafficking etc.

7.Advocating for the incorporation of a gender perspective in the implementation of laws.

8.Providing technical support to other human rights movements and campaigns.

9.Encouraging the use of law as an instrument of empowerment.

10. Legal trainings to law enforcement agencies, NGO’s, policy makers and others to use the law with a human rights perspective.

11. Advocating for the incorporation of human rights training in the curriculum of other disciplines such as medicine, economics, etc.

II. Methodology :

In keeping with the overall objective of empowering women and realising the goal of substantive equality, the focus of LCWRI is on critically examining the effectiveness of laws and recommending its better use. In order to achieve this objective, the work of the Lawyers Collective is informed by the experience of pursuing litigation in court and is supported by action oriented legal and empirical research. The advocacy efforts of the LCWRI are primarily directed towards spreading legal awareness, consensus building and linking with other organisations to inject a multi-disciplinary approach in the implementation of laws.

The LCWRI approaches issues at the micro and macro levels. The micro-level intervention includes supporting victims of violence by providing legal counselling, legal representation and facilitating access to other service providers. At the macro-level, the efforts are directed at consensus building, pursuing social action litigation with a view to precedent setting, liasing with state authorities in advocating for the adoption of best practices that is collated from international standards, our own experience in providing legal aid at the micro level and successful practices in other countries around the world.

In all of this the LCWRI does not attempt to supplant state agencies in their role of upholding and implementing laws. Instead, its efforts are directed towards holding state authorities to their statutory and constitutional roles and recommending strategies that are most effective in realising goals of gender justice.

Accordingly, the work of the LCWRI is divided into three components. The components work seamlessly to constitute an organic whole with each unit complimenting and inputting into the work of the other. The three components of the unit focus on legal intervention, advocacy and capacity building, and documentation as defined below.

The experience of the Legal Aid Cell in providing legal assistance to women facing domestic violence and other forms of discrimination provides the base from which the LCWRI initiates advocacy and research activities by identifying goals and strategies. At the High Court and Supreme Court levels, it focuses on judicial activism to bring about changes in the law. In order to do so in the most compelling manner, the Legal Aid Cell relies on research information (through the conduct of empirical research, case analysis, literature reviews and exhaustive documentation of laws, reports, publications, etc.) generated from the research and documentation component. The advocacy and capacity building component supports the Legal Aid Cell by focusing on law reform and disseminating information to relevant stakeholders through trainings and legal awareness workshops. The overall goal is to create an environment where activism and research, fieldwork and theory inform each other in order to bring about systemic legal change for a more just society. The methodology adopted by the LCWRI is based on the belief that, in order to be most effective, the women’s movement must operate at different levels simultaneously, targeting varied stakeholders and issues.

Download       Network of Lawyers (NOL) 1st Training Programme Report

Download       Agenda for the NOL Training

Download       List of Lawyers participating in 1st LC Training

Download      Consolidated timeline for changes in ipc, 1860

Constitutional Background

The Indian Constitution guarantees equality as ‘Fundamental Rights’ in Articles 14, 15 and 16 under Part III. Article 14 guarantees equality before law and the equal protection of laws. Article 15 prohibits discrimination ‘only’ on the basis of religion, race, caste, sex, place of birth, or any of them. Article 15 also allows for special provisions to be made for women, children, socially and educationally backward classes of citizens as well as the Schedule Castes and the Scheduled Tribes (SCs and STs) – such special provisions shall not be considered discriminatory. Article 16 provides for equality of opportunity in matters of public employment. It also allows the state to make reservations in favour of the SC, ST and Other Backward Classes. While the Constitution does not specifically mention reservation for women, the Constitutional (74thAmendment) Act, 1992, brought in provisions mandating one-third reservations for women in local governance bodies. These guarantees apply to state and public institutions. The only provision that binds both the public and the private sector is Article 17 which outlaws untouchabilityand forbids its practice in any form.

Part IV of the Indian Constitution enlists socio-economic and cultural rights under the title of ‘Directive Principles of State Policies’ (DPSP). While the DPSP, unlike the fundamental rights, are not enforceable, these rights are meant to guide the state while legislating and policy making.

The Supreme Court and the High Courts under Article 32 and 226 respectively, have the power to enforce constitutional guarantees of fundamental rights. This Right to Constitutional Remedies is itself a fundamental right.

For the enforcement of fundamental rights, the Supreme Court has expanded the locus standiwhich has resulted in ‘public interest litigation’ on behalf of socially deprived categories. The expansion of locus standi was justified by Justice Bhagwati in S. P. Gupta v. President of India & Others1as follows:

It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”2

Status of Women in India

Against this scenario, it would appear that women are guaranteed equality, equal protection of laws, equality of status and opportunity, thus redeeming the preambulatory promise of Justice: social, economic and political. The mainstream Indian society continues to fall short in the realization of full equality for the marginalized groups, particularly women. According to 2001 census report, the sex ratio stands at 933 females per 1000 males.3Out of the total population, 120 million are women who live in abject poverty. The maternal mortality rate in rural areas is among the highest in the world. India accounts for 19% of all live births and 27% of all maternal deaths. The post neonatal mortality rate (number of deaths of children age 1-11 months per 1000 live births) for females is 21, compared with only 15 for boys.4The total female labor force participation rate is estimated to be only 28% in 2008, and this data does not take into account the hours spent by women on household activities.5In urban areas, female labor force participation rate is estimated to be at only 7.8% in 2005-06.6Only 36% of the female populations in the age group 15-64 years are participating in the labor force.7These statistics present a dismal picture of women’s lives across both, public as well as private spheres. Even when women engage in paid work, their daily income is only 53 paisa per rupee earned by men in rural areas and 68 paisa in urban areas. Women’s economic vulnerability is compounded by their social vulnerability.8

Existing Legislative Framework

There is no comprehensive anti-discrimination code in India although there are laws that address specific aspects related to equality. For instance, laws like the Maternity Benefits Act, 1961, Equal Remuneration Act, 1976 and the National Rural Employment Guarantee Act, 2005 attempt to address the existent systemic discrimination towards women in employment. Based on the guarantee of equality, laws have been enacted to address violence against women under civil and criminal laws. The Protection of Domestic Violence Act, 2005 is an example of the civil law to address violence within the home. On the other hand, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is an example of criminal law to counter acts of violence against SC/ST women. In the absence of an anti-discrimination code, there is no comprehensive statutory definition of discrimination that takes into account different manifestations of discrimination and its impact.

Other than mechanisms provided under these laws, India has instituted statutory commissions to protect human rights such as the National Human Rights Commission and the National Commission for Women. These commissions have been vested with the function of inter aliamonitoring and reviewing state action and making recommendations for better enforcement of human rights and women’s rights. However, theyhave their limitations. Their recommendations are not binding upon the government and they have no power to redress individual grievances and grant relief.

Proposed Law

The Sachar Committee Report in 2006 first put forth the idea of setting up a new legal framework for tackling grievances of the minority population. Following up on that, the Menon Committee Report in 2008 proposed a new framework in the form of Equal Opportunity Commission (EOC). The EOC has been visualized as one with extensive authority to investigate, gather data, conduct audits, advocate and render advice. However, the proposed legislation does not visualize an authority which can redress grievances and grant relief to individuals and/or groups. Amongst other things, the consultation will look at this proposed legal framework in a critical light.

To secure the constitutional promise of equality and achieve full equality of opportunity for vulnerable groups, particularly women, India needs an equality legislation that protects multiple characteristics, extends beyond the private and public divide and addresses manifest discrimination in society. Thus, a consultation titled ‘Towards an Anti-Discrimination Law in India’ was organized on December 11-12, 2010 at India Habitat Center, New Delhi to deliberate and brainstorm over the need for an anti-discrimination legislation whose objectives and framework respond to the need of the hour.

1AIR 1982 SC 149

2Ibid; para 17.

4Data Source: National Family Health Survey 2005-2006

5Data Source: World Bank Database (http://data.worldbank.org/data-catalog)

6Data Source: NSSO Estimate 2005-2006

7Ibid. 3

Lawyers Collective Women’s Rights Initiative had studied the amendments made in 2005 to the Hindu Succession Act, 1956 whereby the daughter was formally added as a coparcener. This report aimed to map the development in inheritance and property rights under the Hindu Succession Act, 1956.

FULL REPORT HERE

Violence against women (VAW) in India is an issue rooted in cultural history, economic dependence and social norms. Discriminatory practices are underlined by skewed laws. Further, inadequate policing and judicial practices deny women proper protection and just ice. Although participation in public life for women is on the rise and some laws have been amended, unequal treatment and crime against women continues. Indeed, India has a long way to go to make women equal citizens.

The Lawyers Collective Women’s Rights Initiative (LCWRI) views all issues concerning women through the lens of anti-discrimination and equality. This allows us to contextualise wide-ranging issues within the lived realities of women and suggest a holistic approach in dealing with such issues.

In this section, you will find a plethora of information regarding Domestic violence statistics, judgments, as well as some of our research and work on VAW. You will also find some of our activities, events and submissions on law and policy. Please contact us on wri.delhi@lawyerscollective.org for specific queries. We will try our best to get back to you soon.

– Team LCWRI

Domestic Violence

Domestic violence is a manifestation of inequality within the home. It is therefore, not enough to advocate for the implementation of laws criminalising domestic violence. There is a need to create an enabling environment in which a woman is able to assert her rights and seek legal recourse. It is, therefore, essential to address the inequality within the home and recognise rights that counter such inequality to enable women to seek legal action. Given the lack of support a woman is provided with, it is unlikely that a woman will ever resort to legal remedies unless she is assured, at a minimum, of a right to reside in her home. This has a bearing on property and matrimonial rights of women that are currently within the realm of separate personal laws of religious communities. The right to reside that has been recognised through our campaign for a civil law on domestic violence is applicable only in circumstances of violence. In order to recognise women as equal stakeholders within the family, it is essential to review personal laws governing property and matrimonial rights.

Campaigning For the Law

The Lawyers Collective (Women’s Rights Initiative) began its campaign for a civil law on domestic violence in the early 1990s. The need for a specific law on domestic violence was obvious, given the fact that the Indian legal and political systems have denied adequate legal redress to women facing violence within homes and intimate relationships for long.

With the coming into force of the PWDVA 2005, this campaign achieved a landmark victory. However, we believe that our task is only half done. We have to take our campaign to the next level i.e. working and advocating for the effective implementation of the law through public awareness, sensitization & trainings and ensuring that the mechanisms provided in the law are in reality put in place and made accessible to women. It is only when women are empowered to negotiate from a position of equality, will our campaign reach its logical conclusion.

The Need for a law on Domestic Violence

For women in India facing domestic violence, the remedies available prior to 2005 were under the civil law for divorce and under the criminal law provision of Section 498A of the IPC.

Under the civil law, a woman can initiate proceedings for divorce and judicial separation on the ground of cruelty. But this fails to provide any kind of immediate relief to the woman, besides leading to problems of costs and delays in litigation.

Further, the breakdown of a marriage in our society with its attendant discrimination means a virtual civil death for a woman. In the absence of any adequate recourse under civil law for emergency relief and immediate protection from violence, Section 498A IPC therefore, provided women with the only means for such protection prior to this Act. But the reluctance of women to approach the criminal justice system and the inadequacy of the criminal remedy itself are important realities of our social context.

Again, in India, a prominent manifestation of domestic violence is first for the woman to be made a prisoner of the house and then to be thrown out of it. Therefore, there was an urgent need for a law, which could address this phenomenon of depriving women of their Right to Reside in the shared household.

Hence, a more concerted legal strategy to combat domestic violence consisting of a judicious mix of both civil and criminal law remedies, which is sensitive to the experiences of women facing violence at home, the reasons and nature of the violence, the immediate requirements of the woman, and which addresses existing inequalities in domestic relationships was urgently required.

The Constitution of India guarantees substantive equality to women. Such guarantees of substantive equality include not just declaration of rights, but also facilitate access to justice to realize these rights. Therefore, a legislation that combined protection of women from domestic violence with mechanisms, which ensure access to justice in case of violation of this protection, was necessary.

At the start of the Lawyers Collective campaign, it was decided that the law should be primarily civil in nature, with important crossover elements of criminal law. However, the foundation of this effort was and still remains the recognition of the agency of the woman.

The Passage of the Law

Following the inclusion of the domestic violence bill as a priority within the CMP, we were invited to a series of discussions on the proposed bill with the Secretary and members of the Department of Women and Child in the months of May – July. Based on these discussions, it was decided that the LCWRI Bill would be taken as the basis for any future law on domestic violence.

This was followed and complemented by state, regional and national level consultations. The introduction of the Bill in the Parliament was preceded by presentations made by LCWRI along with several prominent women’s groups and a full-fledged campaign to create awareness on the need for this law.

Advocacy and Training:

Our advocacy work on domestic violence continues, and in fact, has assumed a new significance in light of the issues raised with regard to implementation of the Act at state levels as well as the need to ensure that the law is understood and interpreted in its true spirit.

The LCWRI has been actively engaged in advocating for putting in place the implementing agencies and structures under the Act with nodal departments of various state governments, National Commission for women, State women’s commissions.

At the same time, we continue in our endeavor to create awareness on the law by conducting and facilitating training workshops for lawyers, members of the judiciary, NGOs, community workers, women’s support groups and students in various parts of the country.

Publications:

The PWDVA was designed and passed to address the gap between the guarantee of the Constitution of equal rights and the problems faced in existing laws. The true spirit of any legislation, however, is recognised only through its effective implementation. The Lawyers Collective Women’s Rights Initiative which was instrumental in the enactment of the PWDVA, has taken a step further through the annual monitoring and evaluation (“M&E”) of the implementation of the Act since 2007.

The M & E reports are based on three sources of data:

(1) Infrastructure data received from the various State government departments on the implementation of the PWDVA;

(2) State visits conducted by the Lawyers Collective Women’s Rights Initiative;

(3) Analysis of Orders on PWDVA delivered by the Courts.

The data received from all three sources is examined together in order to present an emerging picture of the implementation of the PWDVA.

Sukrit Verma and Anr. V. State of Raj. and Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 5th May 2011

Issues dealt —

  1. Women – an easy pray to male ego
  2. Need for PWDVA
  3. Section 20- a powerful tool for ensuring gender equality in economic terms
  4. “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”– Delhi High Court. Such an observation -clearly contrary to the provisions of law. Hence, this Court respectfully disagrees.
  5. Sensitivity of the Judges and recognition of moral and legal duty of husband to maintain the wife.

Relevant Excerpts are as follows:

1) Women – an easy pray to male ego

6.      Women have been subjected to violence, domestic or otherwise, throughout the pages of history-whether they be Helen of Troy, or Sita of Ramayana, whether they be Casandra of Troy, or Dropadi of Mahabharata. Women have been easy pray to the male ego, and dominance. Much as the Indian Civilization pays obedience to the feminine divine, but the harsh reality remains that throughout the length and breath of this country, women are assaulted, tortured, and burnt in their daily lives. The phenomenal growth of crime against women, has attracted the attention of the international community. The International organisations took a serious look at the epidemic called “domestic violence”. The Vienna Accord of 1994, and the Beijing Declaration and the Platform for Action (1995) felt the necessity for a proper law on this burning issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) asked the member nations to enact a proper law for dealing with the mischief of domestic violence.

2) Need for PWDVA

7. In India, although the criminal law deals with domestic violence in the form of Section 498-A IPC, but there was no provision in the Civil Law to deal with the said problem. In order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. The Act is a social beneficial piece of legislation, which should be given as wide and as liberal an interpretation as possible.

3) Section 20- a powerful tool for ensuring gender equality in economic terms

Thus, Section 20 of the Act is meant to ameliorate the financial condition of the aggrieved person, who may suddenly find herself to be without a hearth and home. Financially, the aggrieved person may exist in a suspended animation, if she is neither supported by the husband, nor by her parents. In order to protect women from such a pergutory, Section 20 bestows a right to seek monetary relief in the form of compensation and maintenance. Section 20, thus, is a powerful tool for ensuring gender equality in economic terms. Section 20, does not contain any exception in favour of the husband. In fact, it recognises the moral and legal duty of the husband to maintain the wife.

4) “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”– Delhi High Court. Such an  observation -clearly contrary to the provisions of law. Hence, this Court respectfully disagrees.

In an era of human rights, of gender equality, the dignity of women is unquestionable. Articles 14 and 15 of the Constitution of India recognise the dignity of women. The Constitution empowers the Parliament to enact laws in favour of women. Flowing from the constitutional ranges, Section 125 Code of Criminal Procedure, Section 24 Hindu Marriage Act, Section 20 Domestic Violence Act, ensure that women are paid maintenance by the husband. Section 26 of the Act further lays down that the maintenance paid under the Act, would be in addition to maintenance paid under any other law being in force for the time being. Therefore, the provisions of the Act are supplementary to provisions of other law in force, which guarantee the right of maintenance to the women. Hence, the observations made by Their Lordship of Delhi High Court, in the case of Sanjay Bhardwaj, that “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”. Such an observation is clearly contrary to the provisions of law. Hence, this Court respectfully disagrees with the opinion of Their Lordship of the Delhi High Court.

5) Sensitivity of the Judges and recognition of moral and legal duty of husband to maintain the wife.

19. The Law has always stood to favour of the women. For the Law recognises their vulnerability for survival in the cruel world. Women, being a keeper of hearth in home, need to be protected as they are the foundation of any society. If women are exposed to physical abuses, to sexual exploitation, the very foundation of the society would begin to weaken. It is only after recognising their importance, sociologically, that the ancient Indian Seers had opined that “Gods dwell only in those houses, where women are respected”. Thus, both the law and society recognise a moral and legal duty of the husband to maintain the wife

VIEW FULL TEXT HERE

Gajendra Singh Vs.  Smt. Minakshi Yadav and Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 5th May 2011

Issues dealt —

  1. Reference to International Conventions and Salient features of PWDVA
  2. Continuing acts of violence/ Retrospective operation

Relevant Excerpts are as follows:

1) Reference to International Conventions and Salient features of PWDVA

The Act is a beneficial piece of legislation, which is an outcome of the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). It is also a result of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Undoubtedly domestic violence is being committed in India on an epidemic scale. Although the criminal law deals with domestic violence in the form of Section 498-A IPC, it was felt that there is no remedy under the civil law. Therefore, in order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. Undoubtedly the Act is meant to protect the women from domestic violence committed against them by the husband and his family members. The Act has recognised the fact that domestic violence is limited not only to physical and mental cruelty, but can also extend to verbal and emotional abuse, and even to economic abuse. The Act has recognised the fact that mental cruelty can take the form of verbal and emotional abuse, such an abuse would include threat to causing physical abuse to any person in whom the aggrieved person is 14 interested. Moreover, the Act has recognised that aggrieved person has a right to economic resources of the husband and his family members, has a right to “stridhan”, and has a right to be maintained. In case her economic rights are violated by the husband or his family members, then according to Section 3 of the Act, domestic violence is committed. Since the Act is a social beneficial piece of legislation, Section 3 of the Act must be given a liberal interpretation.

2) Continuing acts of violence/ Retrospective operation

Moreover, she has been denied her stridhan, she has been denied maintenance, she had been denied access to shared household even after October 26, 2006. Hence, civil wrongs are continuing even after the date when the Act has come into force. Therefore the question of retrospective application of the Act does not arise in the present case. After all as long as the civil wrongs are continued to be committed after 2006, the Act will control such acts of domestic violence.

VIEW FULL TEXT HERE

Kaniz Fatima Vs. State of Rajasthan & Anr.

Rajasthan High Court, Jaipur Bench

Date of the Judgment — 13th May 2011

Issues dealt —

  1. Women as Respondents

Relevant excerpts are as follows :

1) Women as Respondents:

8. Recently, the Hon’ble Apex Court in Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, reported in (2011) 3 SCC 650, considered the definition of “Respondent” defined under Section 2(q) of

the Act of 2005, and held that “although section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. Hon’ble Apex Court further held that legislature never intended to exclude female relatives of the husband or

male partner from the ambit of complaint that can be made under the provisions of 2005 Act. It is true that expression “female” has not

been used in the proviso to Section 2(q) also, but, no restrictive meaning can be given to expression “relative” nor has said {6} expression been defined to make it specific to males only.

VIEW FULL TEXT HERE

Om Prakash Vs. State of Rajasthan & Anr.

Rajasthan High Court, Jaipur Bench

Date of Order :- April 29, 2011

Issue dealt : Continuing acts of violence/ Retrospective operation

The relevant Excerpt is as follows :

“A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband. In case the said right is violated as a civil wrong the Act provides a remedy to the aggrieved person. Admittedly, even after coming into force of the Act on October 26, 2006, the respondent-wife is notbeing maintained by the petitioner-husband. Therefore, she is being subjected to economic abuse. Since a civil wrong is continuously being committed after October 26, 2006, obviously the Act would apply to the petitioner. Therefore, the question of retrospective application of the Act does not even arise in the present case. ”

On the Respondents contention that he is unable to pay, the court said

“The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Therefore, the contention that merely because the petitioner-husband happens to be a physically challenged person, the Act is inapplicable to him, the said contention is unsustainable. Moreover, poverty is not a defence against the right of a woman. Therefore, the petitioner is both legally and morally bound to pay maintenance of Rs.800/- per month to the respondent-wife. Furthermore, the Act does not require that the aggrieved person must stay with the offending husband. Hence, merely because the respondent-wife is not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act.

VIEW FULL TEXT HERE

A.Sreenivasa Rao And Others vs The State Of A.P.,

Andhra Pradesh High court,

Date of the order : 1st April 2011

Issues dealt : 1) DV is quasi criminal proceeding

2) No jural relationship; the case under DV not maintainable.

Relevant excerpt :

1) DV is a quasi criminal proceeding

“It may be noticed that D.V.A.No.18 of 2007 itself was filed after the 1st petitioner obtained divorce from the 2nd respondent. Sri Ashish Samanth, learned Counsel for the petitioners contended that laying of D.V.C.No.18 of 2007 is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. I do not agree with this contention of the learned Counsel for the petitioner for the reason that the protection envisaged by the Article 20(2) of the Indian Constitution as well as by Section 300 Cr.P.C., which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in D.V.A.No.18 of 2007 cannot be considered to be criminal proceedings. Like proceedings

under Section 125 Cr.P.C., perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of

the Indian Constitution or under Section 300 Cr.P.C.”

2) No Jural relationship; the case not maintainable.

“At the same time, by the time the D.V.A.No.18 of 2007 was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of D.V.A.No.18 of 2007, the case in D.V.A.No.18 of 2007 prima-facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not

entitled to proceed against the petitioner under the provisions of the Domestic Violence Act.”

VIEW FULL TEXT HERE

Labhubhai Babubhai Desaid V/s State of Gujrat

Gujrat High Court

Date of Judgment : 6th April 2011

Issues dealt : Interim custody of the children

Facts: Appeal against the order of interim custody of teh twin daughters in the favour of the wife .

Appeal was allowed on the ground that,” Normally, custody of the minor children should be kept with the mother as it is the mother who can take best care of the children. However, in the present case, this Court could see that the children do not have slightest love and affection towards their mother and hence, it will take much time for the children to get adjusted with mother and get proper care and attention. However, as the children are already with the father and have been taking much care and caution by the father to the utmost satisfaction of children and in the best interest of the children almost in all respects, this Court is of the view that if the custody of the children is left with the father, the children would be more happier.”

VIEW FULL TEXT HERE

Eveneet Singh vs Prashant Chaudhri And Ors.

Delhi High court

Date of the Judgment :29 April, 2011

Said : Right to reside in the shared household ceases when option of Alternate accommodation becomes available as said in the judgment

Relevant excerpt :

“This Court is conscious of the further events which took place by way of an order of the Division Bench dated 11.02.2011, when Eveneet was given yet another option to move into premises leased by Prashant. Apparently, that option is still open even though she has chosen not to exercise it. Having regard to the overall circumstances, the Court clarifies that the judgment and order necessarily implied that in the event of alternative accommodation being offered “made available” to Eveneet before the concerned Court, her right to continue in the premises would cease.

9. In the light of the above clarification, the parties are relegated to the concerned Magistrate Ms. Priya Mahindra, learned MM (Saket), who is dealing with the Complaint No. 98/1. The said Court shall consider the option furnished by Prashant to Eveneet in line with this Court’s order, and make suitable orders as to whether Eveneet accepts the same or not. In the event of the Court’s determination of any premises to be appropriate or suitable, Eveneet shall be given reasonable time of two weeks to shift to the same. In the event of her failing to do so, it is open to the Defendant No. 2 to take appropriate proceedings for the implementation of the order of Court. The parties are directed to be present before the concerned Magistrate on 02.05.2011.”

VIEW FULL TEXT HERE

SUPREME COURT GIVES A CLEARER MEANING TO THE TERM RESPONDENT UNDER THE PWDVA, 2005

The Supreme Court of India in a recent judgment interpreted the term ‘ respondent’ under the Protection of Women from Domestic Violence Act, 2005.

VIEW FULL TEXT HERE

  WIFE CAN STOP ERRANT HUSBAND FROM ENTERING HOME 

A wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house, the Bombay high court ruled on Wednesday. The court said that every woman has right to live peacefully in her matrimonial home. “The right to reside contains within itself the right to reside peaceably and to the exclusion of the violator (husband),” observed Justice Roshan Dalvi while upholding a family court ruling restraining a Lokhandwala Complex, Andheri, resident from entering his own flat.

Acting on a plea filed by his wife, the Bandra family court had earlier this year issued an interim direction to the man to move out of the family home in Beverly Hills building, and had also restrained him from creating nuisance by attempting to enter the flat.

The interim arrangement had been made to protect the woman and her children from the violent behaviour of the husband, an alcoholic, who would lose his temper and become aggressive under the influence of alcohol.

The Andheri resident had approached the high court challenging the eviction order. His counsel Uday Warunjikar primarily contended that the wife and her mother-in-law jointly owned the flat, and as the husband had ownership right over the flat, the court could not have ordered his eviction.

Justice Dalvi, however, dismissed the contention, observing that the Domestic Violence (DV) Act puts the woman’s personal rights over proprietary interest.

VIEW FULL TEXT HERE

DELHI HIGH COURT RULES ON RIGHT TO RESIDENCE

The recent judgment by Hon’ble  Justice R.  Bhat of the Delhi High Court, very effectively put the Batra v Batra judgment in the context of facts and circumstance of each case. The judgment  examines the Protection of Women from Domestic Violence Act 2005 and the right to residence succinctly yet very effectively thereby possibly ending any controversy that could arise due to the aforementioned Batra Judgment.

VIEW FULL TEXT OF THE JUDGMENT

TRAINING OF POLICE AT Nagpur on The Protection of Women from Domestic Violence Act, 2005  (PWDVA) – 23 rd APRIL 2011

Lawyers Collective WRI organized their fourth police training on PWDVA in collaboration with Maharashtra Police in Nagpur on 23rd April   2011.   It was held at the Conference Hall of the Police Gymkhana and was attended by 66 participants from 23 police stations. For almost all the participants this was their first legal training of the PWDVA.

The first session was taken by Dr. Sudhir Bhave, Psychiatrist on the impact of violence on women. Commencing with the magnitude of the issue Dr Bhave   stressed upon looking at domestic violence as a social problem rather than a private affair.  Dr Bhave also elaborated upon its consequences particularly   the health impact on women including psychosomatic illnesses. He also shared its impact on children and how it affects generation after generation.  Finally he drew upon his experiences to explain why women need not stay in violent relationships for the sake of their children.

Thereafter “BOL” spots of real life experiences of women was screened followed by a discussion and session on the rationale and overview of PWDVA conducted by Ms Pouruchsiti Wadia, the Senior Research and Advocacy Officer at LCWI.  She also covered the salient features of the Act, concluding her session with the need for a multi- agency response system

Post lunch there was a discussion following the screening of the documentary Babul. Ms. Najmussahar Asadi , the Legal Officer at LCWRI conducted a session on the  role of the Police in  the various stages of the litigation, the different options that the women had for approaching the court and some procedural issues like jurisdiction, forum  etc. Short clippings on the Bell Bajao campaign were also shown post this session. Very practical questions were asked at the end of this session demonstrating that the police were  in fact implementing the Act to some extent.

The local Protection Officer Ms Sangita Domne and Service Provider Ms Deepali Deshmukh covered the concluding session on the role of different stakeholders. They expressed that they got very good cooperation from the police but due to lack of facilities they were unable to perform their duties to the  best of their abilities.

In the last session the participants held group discussions on case studies provided and presented them, demonstrating that they now had quite a good understanding of the Act. Some of the Participants expressed that the training should have extended for one more day. The post training questionnaires revealed that the training was appreciated and found to be extremely useful.

Photographs from the training can be viewed HERE

TRAINING OF POLICE AT Bhandara on the Protection of Women from Domestic Violence Act, 2005   (PWDVA) – 21st APRIL 2011

On 21stApril 2011 the Mumbai unit of the Lawyers Collective conducted the third Police training in collaboration with the Maharashtra Police at the Police training Hall, Bhandara.  79 participants representing police stations from all over Bhandara attended the said training.

The training was inaugurated by the Additional S.P Mr. Vasant Jadhao who briefly spoke about the recently published depleting sex ratio particularly in Maharashtra and also shared some data on analysis done by his department. As per his records, in Bhandara only 3% of the cases had been disposed off under the PWDVA.

The first session on Gender based violence was conducted by Mr. Harish Sadani( Founder member -MAVA). This session gave a good background and set the stage for the days training.  The root causes of violence were covered by him after discussing gender constructs through an interactive exercise.  This was followed by screening of “Babul” and a session on the overview and rationale of the PWDVA taken by Pouruchisti Wadia (Senior Research and Advocacy Officer at LCRWRI). This session was extremely interactive and concluded with the need for a multi- agency response system to enable women live a life free from violence.

Advocate Najmussahar Asadi (Legal Officer at LCWRI) took the post lunch session on role of the police, which was preceded by screening of “Bol” spots and discussion. Advocate Manjusha Gaidhane then covered the local scenario and her positive experiences under the PWDVA. Mrunal Muneshwar the Protection Officer from Special Cell to Help Women then spoke about the role of the PO and SP and her experiences with the police in dealing with cases. This session also brought in to the open the issues of coordination between their cell and the police women’s cell and thus proved fruitful.

Case studies were circulated at the end to judge how much of the training had been absorbed and helped them to apply what they had learnt in practical life situations. The SP of Bhandara Mr. B.G Gaikar also attended the training through out the day and constantly gave his inputs. At the end of the day some of the participants came and expressed their appreciation for the training.  The post training questionnaires also revealed that they had found the training extremely useful. Though all sessions were appreciated, the session on gender based violence was commended the most.

Photographs from the training can be viewed HERE

TRAINING OF POLICE AT SANGLI ON THE PWDVA 2005 –  1ST APRIL  2011

Lawyers Collective WRI (Bombay Unit) organized their first police training on PWDVA in collaboration with Maharashtra Police in Sangli on 1st April   2011.   It was held at the Conference Hall of the Krishna Police Guest House and was attended by 93 participants from 27 police stations. For almost all the participants this was their first legal training of the PWDVA.

The first session was taken by Dr. Samir Gupte, Psychiatrist on the impact of violence. Apart from the health impact on women including psychosomatic illnesses etc, Dr Gupte also included the concept of counselling and the impact of violence on children drawing upon his experience to explain why women need not stay in violent relationships for the sake of their children.

This session was followed by the screening of the animated film titled “The impossible dream” which was followed by a discussion and session on the rationale and overview of PWDVA conducted by Pouruchsiti Wadia, the Senior Research and Advocacy Officer at LCWRi.  A lot of time was given to interact on gender issues before covering the salient features of the Act.  Some of the male participants were resistant to some of the issues and were in a denial mode but the women participants agreed wholeheartedly with what was being said and countered some of the arguments their colleagues presented. This session concluded with the need for a multi- agency response system to enable women live a life free from violence.

Post lunch after a recap of the morning session and the screening and discussion on the film “Babul”,  Najmussahar Asadi  the Legal Officer at LCWRI conducted a  session on the  role of the Police in  the various stages of the litigation, the different options that the women had for approaching the court and some procedural issues like jurisdiction, forum  etc.

The concluding session was the role of different stakeholders was covered by the local Protection Officer (Sandeep Devmore), Service Provider (Santosh Sutar) and Advocate S.M Pakhali (Legal Services Authority) and each of them talked briefly  about their role and their experiences.   This session also enabled them to clear some issues that they had with each other as regards their roles and reinforced our belief that as compared to other districts in Maharashtra which we covered, Sangli seemed to have a better referral system between the different stakeholders and they did attempt to provide an aggrieved woman with a multi-agency response. In this training the participants once again requested for a   detail list of POs which had  been circulated in the past.

Before concluding for the day case studies were read out to the participants and they responded to the questions raised. This helped us to conclude that they had indeed absorbed the inputs provided in the training.  As per our standard practice Pre training and Post training questionnaires had been distributed and in their feedback, the participants conveyed that they found the training useful. Some participants shared that according to them   the time allotted of one day was inadequate and they would have liked to have a more comprehensive training.

Lawyers Collective has planned six more Police trainings in different parts of Maharashtra and we plan to complete them in the months of April and May 2011.

Photographs from the said training can be viewed HERE

TRAINING OF POLICE ON THE PWDVA 2005 New Delhi.- 9TH APRIL 2011

Lawyers collective had organized their third police (Range) training on PWDVA in collaboration with Special Police Unit for Women and Children, Nanakpura on 9th April 2011 at NCUI Auditorium, Siri Fort Institutional Area, Khel Gaon Marg. Approximately 80 participants comprising of inspectors and sub inspectors from south, west, south-west and south-east districts had attended this training. A representative from the SPUWC (Special Police Unit for Women and Children, Nanakpura) was also present for the training.

Paroma Ray, programme officer in Lawyers Collective briefly introduced the concept of the training and gave a brief background of Lawyers Collective. This was followed by a session on the Impact of domestic Violence presided over by Khadijah, a senior member of Jagori whereshe briefly spoke about the treatment meted out to women, at this time and age in India.She laid emphasis on the need for social institutions to safeguard the interest of every individual, particularly where equal rights of women were concerned.The discussion was followed by the screening of an animated film titled “The impossible dream”.The second session was on the rationale and overview of PWDVA conducted byLiyi Marli Noshi and Supriya Yadav ofLawyers Collective. In this session we screened a music video “Babul” wherein the members of the audience were asked to identify the different forms of violence faced by the women in the video. They spoke about the Act in great detail which was followed by a quick explanation of the overview of the PWDVA. Subsequently, a session on the role of police and procedure under the PWDVA was taken by Adv.Jawahar Raja, a Delhi High Court advocate.In the first half of the session, we had screened advertisements from the Bell Bajao Campaign and briefly explained the significance and the use of the forms (Form I and II) attached to the PWDVA.A lot of queries raised by the police were answered in the second half of the session.

In the concluding session, the participants were broken into six groups and were given 6 different cases to study. They were given time to discuss the case and at the end of their allotted time; one person from each group came and gave a presentation on the assigned case.

Pre training questionnaires and Post training questionnaires were administered in the beginning and the end of the training.

TRAINING OF POLICE ON THE PWDVA 2005 New Delhi.- 26TH MARCH 2011

The Lawyers Collective Women’s Rights Initiative (WRI), in collaboration with Special Police Unit for Women and Children, had organized their second Police training on 26 March 2011 (Saturday) for the Central Range of the Delhi Police. The training was held at ISI, Lodhi Road and attended by approximately 70 participants from three districts of Delhi (New Delhi, North East and East). A lot of young officers and new recruits attended this training. Several women police officers had also come for this training. All the participants said that this was their first legal training of the PWDVA. A representative from the Nanakpura Police station also attended this training and actively took part in all the sessions. The first session was conducted by two resource persons from the Center of Social Research (Niharika and Amitabh). They screened the “Impossible Dream” and kept their session very interactive. Amitabh reached out participants and managed to make the session very interactive. The participants also seemed to be more comfortable with a male resource person for this session. Niharika spoke about the inequality inherent in our society and mindsets. We had a very positive feedback from the participants about their session who were very impressed that young people were involved in such work. Over all, it was felt that the participants were not resistant to gender sessions anymore. They were aware of existing inequalities, gender stereotyping, need for laws for women and the high rate of crime against women in the city. This was followed by a session on Overview and Rationale, taken by Paroma Ray, the programme officer at LCWRI. The participants were aware of the reason behind the enactment of this law and they showed an interest in speaking about why this law should be in implemented effectively in our country. Since all the participants were being trained for the first time under the PWDVA, Paroma spoke about the Act in great detail and clarified their doubts using examples etc. Furthermore she elucidated the need for multi-agency coordination and the role of various stakeholders under the Act.

The third session was on the Role of Police and Procedure conducted by Nandita Rao. Nandita explained the role of police in great detail and her session was very well appreciated by all the participants. She clarified all the procedural doubts that the Police had regarding PWDVA, 498A IPC, 125 Cr.P.C. and other related legal provisions. Our final session was case studies where we formed 6 groups with participants and gave them 6 different case studies. One person from each group came forward to make a presentation after discussion. They identified the different types of violence, nature of relief, role of the POs and the police quite well.

Just as in the first training, pre-training questionnaires and post-training questionnaires weregiven out to all participantsin the beginning and the end to find out their existing knowledge about the Act and for assessing the impact of the sessions.

Photographs from the 2nd Training can be viewed HERE

TRAINING OF POLICE ON THE PWDVA 2005.- 19TH MARCH 2011

Lawyers Collective had organized their first police (Range) training on PWDVA in collaboration with Special Police Unit for Women and Children, Nanakpura on 19th March 2011 at Vishwa Yuvak Kendra .The training covered the Northern Range of the Delhi Police and about 65 representatives comprising of inspectors and sub inspectors from the Central district, North district, North West district and Outer district attended the said training.

To flag off the training, representatives from the SPUWC (Special Police Unit for Women and Children, Nanakpura)-ACP Laxmi and CP Sharma addressed the participants and thanked Lawyers collective for initiating the awareness programme. The training comprised of a session on the Impact of domestic Violence where an animated film titled “The impossible dream” was screened. The screening was followed by a discussion initiated by our resource person Niharika Puri from CSR.  The second session was on the rationale and overview of PWDVA conducted by Paroma Ray, the programme officer at LCWRI. In this session, we screened an advertisement from the Bell Bajao Campaign before the presentation. This was followed by a session on the role of police and procedure under the PWDVA by Adv. Pragya Raut along with our legal officer Adv. Liyi Marli Noshi. A lot of queries raised by the police were answered in this session.

In the concluding session, survivors Rashmi Anand, Farya and Priya from our Survivor Group Programme initiated by LCWRI, shared their experiences. Initially, their experiences were presented to the Police like a case study. The police were asked for their responses on the same, after which the survivors were invited to speak. The officers gave them a patient hearing and did not make any judgmental comments about the same.

Pre training questionnaires and Post training questionnaires were distributed among the participants in the beginning and the end for an assessment of the impact of the sessions. This also helped gauge existing knowledge about the Act.

In their feedback, the participants told us that they enjoyed the training and looked forward to more such sessions. They pointed out that listening to the survivors in a forum like this enabled them to think from the point of view of the victim. They also found the rationale and overview session very useful.

It must also be pointed out that Lawyers Collective shall further be conducting two more trainings for the police on the 26th of March 2011 and the 9th of April 2011.

Photographs from the Training can be viewed HERE

[catlist name="Sexual Violence"]

 Affordable Medicines and Treatment Campaign

 “[L]ife in good health and free from disease is the foremost human right and is a constitutional fundamental. The humbler the Indian human, the higher the State’s duty to protect the person.”

—Mr. Justice V.R. Krishna Iyer, Former Judge, Supreme Court of India

 “My idea of a better ordered world is one in which medical discoveries would be free of patents and there would be no profiteering from life or death.”  

Mrs. Indira Gandhi, Prime Minister of India, World Health Assembly, 1981

 Can private actors be allowed to determine whether or not a person ought to live or die? For this, is precisely what patents, which allow the patent holder to exclude other competitors for a certain period and set monopolistic prices, do. By setting exorbitant prices on medicines, the patent holder basically tells a patient, “If you want to get well, be prepared to pay me the price I demand.” This was brought vividly to the fore in the late 1990s in Africa in the context of access to medicines to treat HIV.

Against a backdrop of the glaring inequity in access to lifesaving anti-HIV medicines and the impending change to the Indian patent lawwith respect to medicines, described below,the Lawyers Collective HIV/AIDS Unit, along with other Indian civil society actors, launched the Affordable Medicines and Treatment Campaign.

When HIV was first detected in the 1980s, there was no medicine available to treat HIV itself, no medicine that would halt or reverse HIV progression.  HIV progression rendered people living with HIV susceptible to opportunistic infections. These opportunistic infections could be treated. But, further HIV progression and the accompanying decline of the immune system, would render the medicines to treat opportunistic infections ineffective. HIV progression, absent any treatment, then meant inevitable certain death on account of opportunistic infections and other conditions. In the mid-1990s, it was discovered that certain antiretrovirals (ARVs), when taken in combination, could be used to treat HIV, to halt HIV progression and even reverse it. This transformed HIV from a death sentence to a manageable chronic condition.

But, this transformation came with a price tag attached. Pharmaceutical companies in the West, who manufactured these medicines, priced the medicines at over USD 10,000 per patient per year. This meant that the transformation could be realised primarily by persons living with HIV in the developed world, who were able to buy the medicines themselves or through insurance cover or government-sponsored social security schemes. For millions of persons living with HIV in the developing countries, HIV continued to remain a death sentence. Thousands of people lost their lives, despite treatment being available. This was brought home to the Lawyers Collective HIV/AIDS Unit when some of its clients died due to HIV-related complications without access to antiretrovirals. In a moving speech—the Jonathan Mann Memorial Lecture—delivered at the International AIDS Conference in Durban in 2000, Justice Edwin Cameron, a judge living with HIV, described himself as the “living embodiment of the inequity of drug availability and access in Africa” and said, “I am here because I can afford to pay for life itself.”

In 2001, Indian pharmaceutical companies were able to offer a fixed dosed combination of ARVs at a price of USD 350 and lower per patient per year as against a price of USD 10,000 per patient per year charged by multinational pharmaceutical companies.  The absence of product patent protection for medicines in India was what enabled Indian pharmaceutical companies to make generic versions of these medicines and fixed dose combinations thereof.  The availability of ARVs at low prices made it possible to upscale access to treatment for persons living with HIV in the developing world.

How were Indian companies able to offer the same medicines at such low prices—at a fraction of the cost charged by multinational pharmaceutical companies from the West? This was possible primarily due to the fact that India did not recognise product patent protection for medicines. Until 1972, India provided product and process patent protection for medicines. The consequent import dependence and exorbitant prices of medicines—amongst the highest in the world—led India to change its law. In the 1970s, India changed its patent law to exclude product patent protection for medicines in the Patents Act, 1970.  It did, however, continue to provide protection for process patents on medicines. The absence of product patents allowed generic competition, which led to low prices of medicines. Indian generic companies became, and remain today, the largest supplier of low-cost generic medicines throughout the developing world. With the conclusion of the Marrakesh Agreement establishing the World Trade Organization (WTO), of which India was a founding member, however, all this was set to change.

The Marrakesh Agreement included the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). The TRIPS Agreement was pushed for by the developed countries at the behest of vested private interests of pharmaceutical companies. Developing countries, under the threat of sanctions, were constrained to consent to the inclusion of intellectual property in the trade agreement. Under the TRIPS Agreement, it would be mandatory for WTO-member countries to provide product and process patent protection for inventions in all fields of technology, including medicines. Yet, the TRIPS Agreement reflected a compromise between developed and developing countries. For instance, developing countries fought to ensure that it contained certain flexibilities that allow them to take measures to protect public health.

As a developing country which, in 1995, did not provide product patent protection for medicines and agrochemicals, India had until 2005 to change its patent law. Nonetheless, a change in India’s patent law to provide product patent protection for medicines was imminent.

Against this backdrop, Lawyers Collective HIV/AIDS Unit organised a national consultation with civil society actors in August 2001 in Mumbai. Subsequently, the Affordable Medicines and Treatment Campaign was launched on World AIDS Day that year—on 1 December 2001. The objective of the Campaign is to demand and create an environment that will ensure sustained accessibility and affordability of all medicines and treatment for every individual in India, including access to affordable medicines for people living with HIV.  The Campaign envisions a democratic and participatory involvement of civil society and key stakeholders in all the initiatives taken to ensure access to affordable medicines and treatment.

Post 2001, through the campaign, Lawyers Collective HIV/AIDS Unit started working on intellectual property issues affecting access to medicines.  It engaged in litigation to challenge the grant of exclusive marketing rights—a monopoly right that could be granted to pharmaceutical companies in the interregnum transition period allowing them to prevent others from marketing the medicine for which it had applied for a patent in India post-1995. This litigation marked the beginning of a case, now known as the Novartis case, which would influence subsequent legislative developments and which is also likely to set the way public health safeguards in India’s patent law will be interpreted.

Simultaneously, the Lawyers Collective HIV/AIDS Unit engaged in advocacy to challenge the lack of transparency and consultation with civil society stakeholders by the Government on the impending amendment. It underscored the likely adverse impact of the product patent regime on prices of medicines and also the importance of ensuring that the patent law contained public health safeguards.

Given that the impact of the impending change in India’s patent law would affect patients in other developing countries too, Lawyers Collective HIV/AIDS Unit also started engaging with treatment activists and civil society actors from the Global South. In March 2005, it organised the first Global South Dialogue on HIV/AIDS and Access to Medicines at Mumbai. The opening of this conference coincided with the tabling of the Patents Amendment Bill, 2005 in Parliament—a bill to make India’s law TRIPS-compliant by reintroducing product patents for medicines in India.

Extensive advocacy—both national and international—by civil society actors ultimately resulted in the retention and inclusion of key public health safeguards in the Patents Act, 1970, when Parliament finally amended by patent law in 2005 to make India’s patent law TRIPS-compliant. One such public health safeguard in the patent law is the establishment of stricter patentability criteria. In a bid to prevent evergreening—a practice of pharmaceutical companies to obtain multiple follow-on patents on the same medicine in a bid to extend their monopolistic period—Indian Parliament excluded patenting of new forms of already known substances unless there was a significant enhancement in efficacy [section 3(d), Patents Act, 1970]. Other public health safeguards include retention of pre-grant opposition proceedings, inclusion of post-grant opposition proceedings and amendment of provisions relating to compulsory licensing.

Presently, India is the primary source of generic medicines for patients in the developing world.  How the product patent regime on medicines affects this remains to be seen.

New threats continue to emerge. Developed countries are now attempting to push through their unfinished agenda at WTO through regional and bilateral trade and economic partnership agreements. These agreements generally push for greater levels of intellectual property protection and enforcement, which are beyond countries’ present obligations under the TRIPS Agreement and which are not compatible with the needs of developing countries.  There are also efforts to restrict the use of flexibilities available to countries under the TRIPS Agreement. Of particular concern to India are the multi-pronged efforts to dilute public health safeguards in the Indian patent law.

After the introduction of the product patent regime for medicines in India, Lawyers Collective HIV/AIDS Unit has been engaged in litigation to use the public health safeguards and also oppose attempts to introduce TRIPS-plus provisions in the Indian law. As a component of this, it provides free legal and technical aid to patients’ groups to file patent oppositions against key life-saving medicines. It also provides free legal aid to patients’ groups in other cases, where issues pertaining to intellectual property are likely to have an impact on availability of and accessibility to medicines.

The Lawyers Collective HIV/AIDS Unit also engages in research and advocacy on various issues pertaining to intellectual property rights and other issues that affect pricing, availability of and accessibility to medicines to counter any legislative or regulatory moves that would adversely affect access to medicines.

EU-India FTA Global Week of Action: Updates

India: Sign-on Letter to European Commission handed over

10 February 2012, New Delhi: As part of the Global Week of Action on the EU-India FTA, activists in India today intervened at a public lecture by Mr Van Rompuy, the European Council President, and handed over the sign-on letter to the European Commission signed by several international and national civil society organisations and individuals. The letter highlights the deleterious impact of EU-India FTA on access to medicines and calls upon the European Commission to demonstrate that its commitments to human rights are not mere protestations. The public lecture on ‘The European Union in a Changing World’ was jointly organised by India International Centre and the Delegation of the European Union to India. During the Q and A session, Anandi Yuvaraj, from the International Community of Women living with HIV/AIDS – Asia Pacific (ICW Asia-Pacific), made an intervention and handed over the letter to the European Council President. You can read a detailed description of the intervention and Anandi’s statement here.

Updates from other countries

Several letters were also sent to the Government of India and the European Commission as part of the Global Week of Action. Some of these letters are available below.

Argentina

Chile

Guatemala

  • Letter dated 8 February 2012 from AMUGEN to Indian ambassador
  • Letter dated 8 February 2012 from ITPC-LATCA to Indian ambassador

GLOBAL WEEK OF ACTION: EU-INDIA FTA

6-10 February 2012

In 2001, India’s generics brought prices down from $15000 per person per year to $350 for first line AIDS medicines.

80% of people living with HIV in developing countries are on Indian generic ARVs

Over 90% of pediatric AIDS medicines are supplied by Indian generics.

BUT ALL THIS COULD CHANGE IF INDIA DOES NOT SAY NO TO IP IN THE EU-INDIA FTA

This January, another round of negotiations on intellectual property was held between Indian and EU negotiators as part of the EU-India Free Trade Agreement (FTA) talks. News reports in India quote the EU Ambassador as stating that discussions on Pharmaceuticals have progressed significantly.

On the 10th of February 2012, at the EU-India Summit to be held in Delhi, the EU & India will agree on and finalize the political framework for the FTA. Groups in India are worried – how have the IP negotiations progressed?

Are the EC and India progressing towards an agreement with includes provisions that will seriously hamper India’s ability to manufacture safe, effective and affordable generic medicines and export these to other developing countries?

WHY THE CALL FOR ACTION?

6th – 10th FEBRUARY 2012!!

Since 2007, people living with HIV in India and across the world have been resisting the pressure of the EC on India to sign an FTA with provisions on intellectual property that will endanger access to generic medicines from India. We must once more show the EC and the Indian government that our lives cannot be traded away!

This is a Call for a week of Action across the globe from 6th – 10th February 2012 on the EU-INDIA FTA.

The week of action is a run up to the EU-India Summit that will be held in Delhi on 10th February 2012.

OUR DEMANDS

REMOVE:

  • Investment Rules, as they enable foreign companies to take the Indian government to private courts over domestic health policies like measures to reduce prices of medicines.
  • Border Measures, as they will deny medicines to patients in other developing countries with custom officials seizing generic medicines in transit.
  • Injunctions, as they undermine the independence of the Indian judiciary to protect right to health of patients over the profits of drug companies.
  • Other Intellectual Property Enforcement Measures, as they put third parties like treatment providers at risk of police actions and court cases.

DON’T BRING BACK:

  • Data Exclusivity, as it delays the registration of generic medicines and will not permit the placing of affordable versions of pediatric doses and combinations of “off-patent” medicines on the market. IT’S NOT REQUIRED UNDER THE TRIPS AGREEMENT!
  • Patent Term Extension, as it will extend patent life beyond 20 years.

The EC states that these two provisions are off the table. It must keep its word!

PLEASE JOIN US -YOUR COMRADES- IN INDIA!

In the coming days, groups from around the world and in India will demonstrate against the EU-India FTA. We ask you to join us in sending a clear message to the European Commission: our lives cannot be traded away.

1. Organise your own rally: You can organize rallies or demonstrations in front of European Commission offices in your countries to voice your opposition to their aggressive negotiations on intellectual property in FTAs. Don’t forget that the EU is also negotiating FTAs with many other developing countries and making the same demands.

2. Raise awareness/media action: Even though you might not be able to support our rally financially or physically you can help us by spreading the word about our concerns. Write an editorial in your local paper. Hold a press conference. Issue a press release or press statement.

3. Write to the Indian Government: You can also write to the Indian Government asking it to stay strong and not give in to the demands of the European Commission. India, as the pharmacy of the developing world, has an obligation to its citizens as well as patients across the world. Please try and meet the Indian ambassadors in your countries and convey to them how important it is that India reject ALL the demands of the EU. Millions of lives depend on this.

4. Write to your own government: Public health programmes around the world depend on generic medicines from India. Ask your government to tell the EU and the Indian government to keep IP out of the FTA negotiations.

5. Share your actions: PLEASE send us photos, articles, videos of all your actions immediately and FOLLOW the actions of other groups here: http://www.facebook.com/pages/Stop-the-EU-India-Free-Trade-Agreement/144687138908841 and here http://donttradeourlivesaway.wordpress.com/

6. Donate: In order to organize these protests, we rely on funding. Any financial support is welcome. No amount is too small – or too big! If you know organizations, which are interested in funding, if you want donate to our protest, please contact us.

We plan to meet the aggressiveness of the European Commission with our peaceful protests. There is too much at stake. Join us NOW!

In Solidarity

Delhi Network of Positive People & Lawyers Collective HIV/AIDS Unit

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SUPPORT US IN OUR ACTION AGAINST THE EU-INDIA FTA

4 February 2012, New Delhi.

India and the European Union (EU) are gearing up for the EU-India summit scheduled to be held in New Delhi on 9–10 February 2012. The two sides are expected to make some major announcements about the framework of the free trade agreement (FTA) they are presently negotiating and which they hope to conclude by the end of 2012.

Civil society groups in India and across the world are concerned about how the FTA between EU and India would affect access to medicines. Concerned about the developments, civil society groups in India have called for a Global Week of Action 2012.

You can support us by (1) sending a letter to the Prime Minister of India AND (2) by signing onto a global sign-on letter to the European Commission.

1. Write to the Government of India

Your voices must be heard by the Government of India. In the past, your letters have made a difference. A template letter to the Prime Minister of India, which you may use, can be downloaded HERE.

For those of you who are in India, you can directly send the letter via fax or email to the Prime Minister’s Office.

2. Sign-on to the letter to the European Commission

You can also support us by signing on to the letter to the European Commission, which can be viewed HERE.

To sign on, email us at ramya.sheshadri@lawyerscollective.org and aidslaw@lawyerscollective.org

Deadline: 8 February 2012

Novartis AG v. Union of India and Others, SLP (Civil) Nos. 20539–20549 of 2009

In this case, which is presently before the Supreme Court of India, Novartis AG (Novartis) challenges the order of the Intellectual Property Appellate Board (IPAB) rejecting its patent application for Gleevec (beta crystalline form of imatinib mesylate), an anti-cancer drug used to treat chronic myeloid leukemia.

The outcome of this case will affect not only the patenting of this particular anti-cancer drug, but will also determine the position in India on patenting of new forms of already known substances. Novartis has challenged the IPAB’s interpretation of section 3(d) of India’s patent law and its application to Novartis’ patent application for the beta-crystalline form of an already known substance, imatinib mesylate.

Section 3(d) of the Indian Patents Act, 1970 is the public health safeguard in the Indian patent law that, amongst others, disallows patenting of new forms of known substances, unless the new form exhibits a significant enhancement in efficacy. It is one of the safeguards introduced by Parliament of India in 2005 to prevent evergreening. Evergreening is the practice of pharmaceutical companies to obtain patents on frivolous or minor changes to known drugs and thereby establish or extend their monopoly over a drug.

Background Note

In 1997, Novartis AG, a pharmaceutical company based in Switzerland, filed a patent application in the Chennai (Madras) Patent Controller’s office for the beta-crystalline of imatinib mesylate, brand name Gleevec (Glivec) claiming that it invented the beta-crystalline form of imatinib mesylate, a salt of the free base, imatinib.

Novartis’ patent application was kept in the mail-box and not examined until 2005 as the TRIPS Agreement permitted developing countries such as India that did not provide product patent protection to pharmaceuticals and agrochemicals to introduce such product patent protection from 1 January 2005.

In the meantime, Novartis obtained Exclusive Marketing Rights (EMR) for marketing Gleevec in India. On the basis of this, it obtained orders from the Madras High Court preventing some of the Indian generic manufacturers from manufacturing and selling generic versions of the medicine. At that time, Novartis was selling Gleevec in India at USD 2666 per patient per month. Generic companies were selling their generic versions in India at USD 177 to 266 per patient per month.

In 2005, India amended its patent law to comply with its obligations under the TRIPS Agreement to provide process and product patent protection in all fields of technology, including pharmaceuticals and agrochemicals. Cognisant of patenting practices, Parliament introduced a significant and important provision to prevent evergreening— section 3(d).

After the 2005 amendment to the patent law, Cancer Patients Aid Association (CPAA) and several generic companies filed pre-grant oppositions against Novartis’ patent application for imatinib mesylate, claiming, among other things, that Novartis’ alleged “invention” lacked novelty, was obvious to a person skilled in the art, and that it was merely a “new form” of a “known substance” that did not enhance the substance’s efficacy, and was thus not patentable under section 3(d). These arguments were based on the fact that Novartis had already been granted a patent in 1993 in the United States and other jurisdictions for the active molecule, imatinib, and that the present application only concerned a specific crystalline form of the salt form of that compound.

CPAA and the generic companies contended that the 1993 patent effectively disclosed both the free base, imatinib, and the acid-addition salt, imatinib mesylate. Further, CPAA and generic companies argued that different crystalline forms of imatinib mesylate did not differ in properties with respect to efficacy, and thus the various forms of imatinib mesylate must be considered the “same substance” under section 3(d).

[Downloads: Novartis’ Patent SpecificationCPAA’s pre-grant oppositionNovartis’ reply statement and CPAA’s rejoinder.]

Novartis’ patent application rejected by Patent Controller [January 2006]

In January 2006, the Patent Controller in Chennai, in a series of landmark orders, refused to grant Novartis a patent, agreeing, amongst others, with the contentions of the CPAA and generic companies that the subject of the application lacked novelty, was obvious, and was not patentable under section 3(d).

[Downloads: Order of the Patent Controller in the oppositions filed by CPAACipla LtdHetero Drugs LtdNatco Pharma Ltd and Ranbaxy Laboratories Ltd]

The patent rejection meant that generic companies could manufacture and market their generic versions of the drug, both in India and abroad, and make available the generic imatinib mesylate priced at less than one-tenth of Novartis’ price.

In June 2006, Novartis AG and its Indian subsidiary, Novartis India, filed a series of writ petitions against the Government of India, CPAA, and four Indian generic manufacturers (Natco, Cipla, Hetero, and Ranbaxy), before the Madras High Court. These writ petitions challenged the decision of the Patent Controller to refuse to grant Novartis a patent for the beta-crystalline form of its anticancer drug, imatinib mesylate, as well as the validity of section 3(d) that provided one of several grounds for rejecting its patent application.

[Downloads: Writ Petition Nos. 24759 of 2006 and 24760 of 2006 were filed by Novartis AG and Novartis India respectively challenging the validity of section 3(d). Writ Petition No. 24754 of 2006 was filed by Novartis AG against CPAA and Union of India, challenging the decision of the Patent Controller on merits in CPAA’s pre-grant opposition. Writ Petition Nos. 24755 of 2006 to 24758 of 2006 were filed by Novartis AG challenging the decisions of the Patent Controller in the other pre-grant oppositions.]

Over a period of time, the writ petitions challenging the decision of the Patent Controller were converted into statutory appeals. In April 2007, the Government of India notified the IPAB as the body to hear appeals relating to patents. Consequently, Novartis’ appeals were transferred to the IPAB, a specialist tribunal on matters relating to intellectual property.

Constitutional validity of section 3(d) upheld by Madras High Court [August 2007]

Meanwhile, in August 2007, the Madras High Court issued its judgment rejecting Novartis’ writ petitions challenging the validity of section 3(d). The Madras High Court refused to examine whether section 3(d) was in compliance with the TRIPS Agreement.

Novartis’ primary contention in its challenge to the constitutional validity of section 3(d) was that the use of the term “efficacy” in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Constitution of India.

During the arguments, while conceding that the meaning of the term “efficacy” is known, Novartis contended that because there was no clarity as to what constituted “enhancement of efficacy” and “significant enhancement of efficacy” as required by section 3(d), the law was vague and lent itself to arbitrary decisions by the Patent Controller. The Government of India, CPAA and generic companies argued that section 3(d) is not in violation of the equality provision of the Constitution of India as the concept of efficacy is well-known to persons in the pharmaceutical industry and it is impossible to lay down a “one size fits all” standard to determine what constitutes a significant enhancement of efficacy. Dismissing the petition, the Madras High Court held that section 3(d) was not vague or arbitrary and therefore did not violate the Indian Constitution. It held that the term “efficacy” was known in the pharmaceutical field to mean “therapeutic efficacy”.

While dismissing Novartis’ writ petitions, the Madras High Court held: “We have borne in mind the object which the Amending Act wanted to achieve namely, to prevent evergreening; to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to it’s citizens.”

Neither Novartis AG nor Novartis India challenged the judgment of the Madras High Court upholding the constitutional validity of section 3(d).

Appeal on merits rejected on the ground of section 3(d) alone [June 2009]

The next round of litigation then commenced before the IPAB

After a series of litigation in which Novartis contested the constitution of the IPAB, Novartis’ appeals challenging the Patent Controller’s orders were finally heard by a specially constituted Bench of the IPAB, comprising Justice Negi (Chairperson) and Dr PC Chakraborty (Technical Member) in November and December 2008.

In its order issued in June 2009, the IPAB overturned the Patent Controller’s findings on novelty and inventive step and held that the beta-crystalline form of imatinib mesylate was new and involved an inventive step.

However, the IPAB held that Novartis’ alleged invention did not satisfy the test of section 3(d) in as much as Novartis did not provide data to show that the beta-crystalline form of imatinib mesylate exhibited significantly enhanced therapeutic efficacy over imatinib mesylate, the known substance.

Primarily on the basis of this finding, the IPAB rejected Novartis’ appeal and refused to grant it a patent for the beta-crystalline form of imatinib mesylate.

Proceedings before the Supreme Court

Challenging the IPAB’s order, Novartis approached the Supreme Court directly by filing a special leave petition challenging the IPAB’s interpretation and application of section 3(d) to its patent application. Subsequently, Natco Pharma and CPAA filed cross-petitionschallenging the IPAB’s findings on other issues including novelty and inventive step.

Hearing Updates

Due to the keen interest, both domestically and internationally on this case, Lawyers Collective HIV/AIDS Unit, representing CPAA in these matters, will provide daily updates on the progress of the case. The reports will be factual updates and will not contain any comments as it is impermissible under the Indian law relating to contempt of court.

 "Closing Plenary Speech on Human Health Rights and Drug Policy" By Anand Grover at the Drug Policy Week conference in Cape Town, 3 August 2017.

 

Intervention Application filed and admitted before the Supreme Court in the NDPS Section 64 A Matter

 

Press Release Towards a Health and Human Rights Approach to Drugs, 30th June, 2011.

 

National Policy on Narcotic Drugs and Psychotropic Substances

 

Lawyers Collective’s  SUBMISSION  on removal of Narcotics Control Bureau’s Exemption from the Right to Information Act, 2005 to the Ministry of Personnel, Public Grievances and Pensions, April 2011

 

Lawyers Collective’s SUBMISSION on the Draft National Policy on Narcotic Drugs and Psychotropic Substances to the Department of Revenue, Ministry of Finance, Government of India, March 2011

 

Press Release: Drug users demand dignity, participation and evidence based policies, June 26 2009

The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 is the central law on control, regulation and prohibition of narcotic and psychotropic drugs in India.  The Act was last amended in 2001, to rationalize punishment and adopt a sentencing structure based on the quantity of drugs involved. The stringent penal structure and rigid implementation of the NDPS Act created many problems including non-availability of opioid medication and lack of access to drug dependence treatment.

On 8th September, 2011, the Government introduced the NDPS (Amendment) Bill, 2011 in the Lok Sabha. The Bill was referred to the Parliamentary Standing Committee on Finance on 13th September, 2011 for further consideration.

The Bill seeks to amend a number of provisions of the NDPS Act including:

•Modification of the definitions of ‘small’ and ‘commercial’ quantity to include the entire amount of drugs involved and not only the pure drug content  [Section 2(xxiiia) and Section 2(viia)]

•Standardisation of punishment for consumption of drugs to a maximum of 6 months or fine [Section 27]

•Transfer of power to regulate “poppy straw concentrate” from the State to the Central Government  [Sections 9 and 10]

•Widening provisions for forfeiture of illegally acquired property, wherein any property of a person who is alleged to be involved in illicit traffic whose source cannot be proved is termed as ‘illegally acquired property’ and liable to be seized [Sections 68-B, 68H and 68-O]

•Addition of the term ‘management’ to provisions on treatment for drug dependence [Section 71]

Concerns over the Bill

The proposed quantity definitions would have far reaching implications on sentencing for NDPS offences and may expose low-level drug offenders, including people who use drugs to stringent punishment. Despite standardisation of punishment for consumption of drugs, the policy of criminalisation of drug use remains unchanged. The overbroad scope of the forfeiture provision makes it susceptible to misuse and subject to constitutional challenges. Further still, the Bill fails to address key issues and contradictions that have arisen such as, death penalty for repeat offenders, immunity for treatment seeking, regulation of treatment centres, support for harm reduction measures and access to opioid medicines. Read more.

The Lawyers Collective expressed these and other concerns to the Standing Committee on Finance through written and oral submissions on the NDPS (Amendment) Bill, 2011

Some of these concerns are reflected in the Committee’s Report, which was presented to the Parliament on 21st March 2012. Read Standing Committee’s Report here.

Civil Society organizations have rejected some of the recommendations of the Standing Committee, including the suggestion to enhance penalties for the use and possession of drugs. Read civil society letter to the Ministry of Finance here.

Bombay High Court overturns mandatory death penalty for drug offences; first in the world to do so-

16 June 2011, Mumbai: In an unprecedented decision, the Bombay High Court struck down the mandatory death penalty for drug offences, becoming the first Court in the world to do so. Announcing the order via video conferencing, a division bench of Justices A.M Khanwilkar and A.P Bhangale declared Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that imposes a mandatory death sentence for a subsequent conviction for drug trafficking ‘unconstitutional’.

The Court however, refrained from striking down the law, preferring to read it down instead. Consequently, the sentencing Court will have the option and not obligation, to impose capital punishment on a person convicted a second time for drugs in quantities specified under Section 31A.

The decision brings some reprieve to Ghulam Mohammed Malik, a Kashmiri man sentenced to death by the Special NDPS Court in Mumbai in February 2008 for a repeat offence of smuggling charas [cannabis resin]. Because of the mandatory nature of the punishment under Section 31A as it stood then, Malik was sentenced to death, without consideration of individual circumstances or mitigating factors. The High Court’s verdict came in response to a petition filed by the Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies, who assailed mandatory capital punishment as arbitrary, excessive and disproportionate to the crime of dealing in drugs.

Reacting to the order, Director of the Lawyers Collective, Anand Grover, who led the case for IHRN, said – “the order marks an important advance in drug policy and anti-death penalty campaigns. We will examine the decision fully to assess whether striking down the death penalty, as was done by the Supreme Court for Section 303 of the Indian Penal Code[1]would have been more appropriate”

Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 13 countries (including India until today) prescribe mandatory death sentences for drug crimes. In countries like Iran and China that actually carry out executions, drug offenders constitute the vast majority of those executed. In May last year, the Court of Appeal in Singapore upheld the mandatory death sentence imposed upon a young Malaysian for possession of heroin. “This is a positive development, which signals that Courts have also started to recognize principles of harm reduction and human rights in relation to drugs. It is not utopian, but it is a giant step” remarked Luke Samson, President, IHRN.

Welcoming the decision, Rick Lines, Executive Director of Harm Reduction International, a UK based agency that specializes in drug control and human rights and the author of ‘The Death Penalty for Drug Offences: A violation of International Human Rights Law’ (2007), said ““The Court has upheld at the domestic level what has been emphasised for years by international human rights bodies – capital drug laws that take away judicial discretion are a violation of the rule of law. India’s justice system has affirmed that it is entirely unacceptable for such a penalty to be mandatory. This will set a positive precedent for judicial authorities in the region, which is rife with draconian drug laws.” 

FOR COMPLETE SET OF PLEADINGS CLICK HERE

FOR FULL TEXT OF THE JUDGMENT CLICK HERE

Over the last two decades, South Asia has witnessed a significant increase in HIV prevalence among drug using populations, particularly those injecting drugs. To stem the twin epidemics of HIV and drug injecting, several countries in the region have introduced needle-syringe and oral substitution programmes among injecting drug users (IDUs). Besides reducing HIV transmission, these interventions bring IDUs in contact with drug treatment and recovery to eventually overcome dependence.

The positive outcomes of such ‘harm reduction’ measures have been endorsed by the World Health Organisation (WHO) and the Joint United Nations Programme on HIV i.e UNAIDS. However, these interventions are not exactly within the bounds of narcotics and/or penal laws. South Asian governments can exercise several legal and policy options to initiate and scale up IDU harm reduction to reduce individual risk and promote public health.

These are among the findings of the report, title“Legal and Policy concerns related to IDU Harm Reduction in SAARC Countries”.Commissioned by the United Nations Office on Drugs and Crime (UNODC), Regional Office for South Asia, to the Lawyers Collective HIV/AIDS Unit, a non-government organisation (NGO) working on Public Health, HIV and Law in India, the report examines the interface between law, policy and IDU harm reduction practices in Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It also suggests potential measures to harmonise IDU harm reduction with law.

The report relies on primary and secondary sources of information. It combines a review of international and regional drug conventions and country-specific laws, policies and programmes on drug use and HIV with site visits and stakeholder interviewsincluding with health and narcotics law officials, NGOs, lawyers and representatives fromconcerned ministries, U.N and international agencies. Preliminary findings from the report were peer reviewed individually by country experts and jointly at a Regional Tripartite Review Meeting organised by UNODC from 30-31 March 2006 at Colombo, Sri Lanka.

Across South Asia, narcotic laws proscribe inter alia possession, use/consumption and supply of prohibited drugs. Notwithstanding stringent penalties, no country has seen a diminution in drug use. On the contrary, drug consumption is reportedly on the rise; in some countries, legislative and enforcement action have coincided with a shift towards riskier use, particularly injecting pharmaceuticals with the attendant threat of HIV and blood borne infections. The report cites studies that attribute the phenomenon of injecting pharmaceuticals to non-availability of heroin but finds no conclusive links between narcotic law enforcement & drug consumption patterns in South Asia.

According to the report, interventions to reduce risk of HIV transmission among drug injecting populations through provision of sterile needle and syringes, Methadone and/or Buprenorphine oral substitution, treatment for drug dependence, outreach and peer support, drug safety education and condoms have been initiated by NGOs in Bangladesh, India, Nepal and Pakistan. Though critical to prevent HIV among IDUs and their sexual partners, these programmes have not been implemented at scale and found only partial acceptance in national drug policies.

The report documents statutory hurdles to IDU harm reduction in all countries. Provision of sterile syringes to IDUs is open to prosecution under penal and/or narcotics law as abetment of drug consumption. Though punishable, most country laws allow consumption of prohibited drugs strictly for medical reasons. Oral substitution is; however; not considered treatment as in most jurisdictions; treatment requires ‘giving up drugs’. The report finds varying legal controls on Methadone and Buprenorphine that impact affect availability and access. Furthermore, absence of protocols for prescription and supervision has hindered policy on oral Methadone and Buprenorphine therapy. Across South Asia, treatment for drug dependence is offered through complex penal and civil arrangements leaving a vast majority of drug users without medical and/or social assistance. Information on safe injecting and drug use is scant, and, if offered, would be in contravention of law. Though available, condoms are not supplied in prisons in any country on account of anti-sodomy laws.

The report outlines types of legal interventions that national governments may adopt to bring IDU harm reduction in conformity with law. One such way is to read harm reduction within the rubric of medical treatment. Another option is to offer immunity to heath and harm reduction staff under the good faith exception, ordinarily available to the prosecution. Protecting harm reduction interventionists from penal and civil liability by an overriding ‘non obstante’ clause is yet another strategy. The report recognises that the choice to make amendments vests with individual countries given their particular legal regimes and interpretation of laws by judicial bodies.

Court admits plea for scientific and human rights standards for drug dependence treatment  

22nd April 2009, Chandigarh: SHARAN, an NGO working with people who use drugs, approached the Punjab and Haryana High Court for protection of rights of persons dependent on drugs. Intervening in Talwinder Pal Singh v. State of Punjab, Crl. Misc. No.  M- 26374   of 2008, SHARAN, sought the observance of clinical and human rights standards in the delivery of drug dependence treatment. Admitting SHARAN as a party to the proceedings, a single bench of Justice Rajiv Bhalla issued notices to the Ministries of Health and Family Welfare and Social Justice and Empowerment – the two agencies in charge of drug related treatment.

Facts leading up to the case date back to August 2008, when the District Magistrate, Mohali, Chandigarh directed centres providing treatment for drug dependence to ensure adequate accommodation, food, sanitation and medical care, documentation and record keeping and allow family visits. The said order was passed in response to a report of a death of a drug user due to alleged beating at a “de-addiction centre” near Mohali. At that time, SHARAN and Lawyers Collective HIV/AIDS Unit had written to the Ministries of Health and Social Justice to clean up drug dependence treatment facilities. Read More

In October 2008, the petitioners, who claim to provide counseling and rehabilitation to “drug addicts”, objected to the magisterial order, which, they alleged, was causing harassment. Expressing concern over drug addiction and the neglect of treatment services, Justice Bhalla sought replies from officials from the states of Punjab, Haryana and the Union Territory of Chandigarh.

In its application, SHARAN highlights incidents of drug users being held against their will and tortured in the name of treatment. It complains of the Government’s failure to uphold its constitutional and statutory responsibility to provide safe and evidence based treatment to drug dependent persons.

Appearing on behalf of SHARAN, Advocate Anand Grover drew the Court’s attention to “treatment obligations” under the Narcotic Drugs and Psychotropic Substances Act, 1985. Grover pointed out that the government had not framed statutory rules for establishment, maintenance and superintendence of treatment centres. The only guidance available is the Scheme for Prevention of Alcoholism and Substance (drug) Abuse and Manual on Minimum Standards of Care in Addiction Treatment Centres, which are deficient and lack legal force. Grover also alluded to denial of medicines including for relief from withdrawal despite the legal obligation to supply drugs at treatment facilities. Such practices, he argued, contravene the right to life and health of people who use drugs.

SHARAN has sought the Court to instruct the government to enact and implement rules for setting up, management and monitoring of treatment facilities in accordance with:

  • Evidence-based good practice and accumulated scientific knowledge
  • Fundamental rights and freedoms including dignity,  autonomy and bodily integrity
  • Consultation with community and civil society

SHARAN has also sought provision of pharmacotherapy including Methadone and Buprenorphine substitution for opioid dependence.

 

 View Intervention Application Here

 

 View Written Submissions Here

Fact sheet on the NDPS Act- Read Here 

 

 “The most important public health lesson emerging from the HIV epidemic is that respecting and protecting the rights of those already exposed to HIV and those most at risk is the most effective way to curb the rapid spread of the epidemic.”

        Justice Michael Kirby, Australia

 The HIV epidemic has significant social, economic, legal and human rights dimensions. It has highlighted the inequalities, widespread stigma and discrimination and denial of fundamental human rights that exist in all societies. The link between HIV, law and human rights is twofold. First, HIV has become a ground for denying people their rights. People living with HIV frequently face denial, discrimination and rights violations in public and private institutions – health care settings, employment, educational institutions, family and community, on the sole ground of their HIV status. Secondly, it is the denial of human rights that makes certain populations more vulnerable to HIV than others. Specifically, groups and sub-populations that experience disempowerment and marginalisation because they are dispossessed of rights or are unable to exercise them are vulnerable to contracting HIV.

The public health lesson that has emerged from the HIV epidemic is that protecting rights of those affected by HIV is the best way of preventing the spread of HIV. This lesson translates into programmes and services that are voluntaryconfidential and non-discriminatory in nature, in other words, a programme which respects the rights of people. The rationale behind the approach is that HIV prevention, care and treatment will be accessed only if the individual is assured of the right to autonomy and consent, privacy and confidentiality, equality and non-discrimination.

The Lawyers Collective has dealt with the law relating to HIV/AIDS since the late 1980`s when it handled the first HIV litigation (Lucy D`Souza v. State of Goa, AIR 1990 Bom 355)in India. This case saw the incarceration of the celebrated HIV positive activist Dominic D`Souza under the Goa Public Health (Amendment) Act, 1986. It also saw, for the first time, arguments that espoused the need for a human rights based approach to deal with HIV/AIDS and people living with HIV/AIDS.

In 1998, the Lawyers Collective HIV/AIDS Unit was formally set up, based on a realization that law, policy and judicial action, that upheld the human rights framework, had a central role to play in effectively dealing with the spread of the HIV epidemic. The Unit’s aim of crafting a just, rational and non-discriminatory response toHIV is sought to be furthered by policy level advocacy and research, legal-aid services to people living with HIV and public interest litigation on issues pertaining to HIV. 

SinceLucy D’Sousa’s Case, the Lawyers Collective has made significant contributions to the development of law on HIV, especially in areas of non-discrimination in employment (MX v. ZY, AIR 1997 Bom 406), right to marry (Mr. X v. Hospital Z, (1998) 8 SCC 296; Mr. X v Hospital Z,(2003) 1 SCC 500), negligence in blood transfusion (P v Union of India, W.P 11591 of 1995) and access to health care (SankalpRehabilitation Trust v. Union of India, W.P. 512 of 1999)

The Team

Project Director: Anand Grover

Shivangi Rai (Delhi) 

Raman Chawla (including Draft Legislation on HIV) (Delhi)

Nitu Sanadhya (Mumbai)

Riddhi Jasani (Mumbai)

Surekha N (including Draft Legislation on HIV) (Bangalore)

Mihir Samson (Delhi)

Isolation of Persons Diagnosed with Drug Resistant Tuberculosis

In December 2011, 15 persons in Maharashtra were diagnosed with a form of TB which was unresponsive to all first line and second line drugs. In the days thereafter, there was major concern about the treatment of these persons and also concern to ensure that this resistant form of TB does not spread. One of the responses considered by the Government was placing these persons in isolation facilities. The Lawyers Collective wrote to the Head of the TB Control Programme (RNTCP), submitting that such an approach would violate the fundamental rights to liberty, autonomy and the freedom of movement of persons sought to be isolated, and highlighting evidence of the success of community-based, ambulatory models of treating drug resistant TB. Read the full text of the letter HERE.

Read the Reply of the State T.B. Office of Maharashtra, stating that the government would not follow a policy of isolation in the case of Drug Resistent T.B. HERE

 

 

Joint Civil Society Campaign on NACP-IV

In early 2011, the Government initiated the process of developing the fourth phase of the National AIDS Control Programme (NACP-IV) that will define the national response to HIV over the next five years. Early indications suggested no evident plans for consultation and involvement of civil society in the formulation of NACP-IV. This led a group of civil society organsations, including the Lawyers Collective, to issue a memorandum to NACO, calling for the inclusion of civil society as an equal partner in the process of developing NACP-IV. Read the full text of the memorandum HERE.

 

The concern about the lack of transparency in the process led to a larger meeting being organised on 12th May 2011 in New Delhi. The meeting saw the participation of over 90 representatives from civil society and networks of people living with HIV and most-at-risk populations. A resolution was issued, expressing concern about the non-inclusion of civil society and calling on NACO to ensure wider consultation in the process of the formulation of NACP-IV. At the meeting, a caucus was nominated to negotiate with NACO and keep a monitoring and oversight role over the formulation of NACP-IV. Read the full text of the resolution HERE.

 

In response to the pressure, NACO agreed to partner with civil society and hold five regional consultations jointly in the North, Noth-East, South, West and East of India. As a part of the process, the Lawyers Collective developed a briefing document outlining the right to health framework on which the NACPIV ought to be premised.

Read the report of the regional consultations HERE.

Read the briefing document on the rights based approach HERE.

 

Consultation on the National ARV Rollout Programme, Bhubaneshwar

Since its launch in April 2004, the Government has, through the National ARV Programme, been providing care, support and treatment services to people living with HIV. Over the years a number of problems, relating to access of people living with HIV to the Programme, have sought to be addressed both through advocacy as well as litigation, however many issues still remain. With an objective of identifying strategies to address these issues faced by people living with HIV with regard to the Rollout Programme, the Lawyers Collective organised a National Consultation on the ARV Rollout Programme in Bhubaneswar in June 2011. Read the full report of the consultation HERE

 

 

Submissions on National Policy for Children, 2010

In January 2011, the Ministry of Women and Child Development, sought to revise the National Policy for Children, 1974 and held national consultations on its proposed National Policy for Children, 2010 with government officials, civil society and other ministries of the government. The Lawyers Collective participated in the consultation for northern states in Lucknow and subsequently made written submissions to the Ministry regarding the draft policy.

Read the Draft National Policy for Children, 2010 HERE

Read the full text of the submissions HERE

 

Mandatory Testing of Foreign Students for HIV

The Lawyers Collective, in May 2011, wrote to the Jamia Millia Islamia University, New Delhi objecting to their policy requiring all foreign students enrolling in the University to undergo HIV testing and asked them to remove the requirement with immediate effect as such a policy requiring mandatory testing of persons violated a person’s fundamental rights and was contrary to established law and policy.

Lawyers Collective received a reply dated 30th September 2013 from NITK, Surathkal informing us that they have modified the Section on medical examination and uploaded new brouchers on 30th July 2013. The new /modified section states that: “The candidates, in their own interest, are advised to ensure that they are medically fit to pursue the prescribed course of study. The candidates would be required to submit the Medical Certificate from an Authorised Medical Practitioner in their home country or India for General Fitness. Alternatively the candidate would be required to undergo a Medical Fitness test at the time of reporting at concerned Institute. Please note that if the candidate is not medically fit, his/ her admission is likely to be rejected.”

Director NIT’s, Ministry of Human Resource Development Department of Higher Education sent a letter dated 5th November 2013 to NIKT, Surathkal, Karnataka instructing them that they need to strictly adhere to instructions regarding HIV testing given by Ministry of Home affairs and Ministry of Health and Family Welfare under DASA Scheme.

Lawyers Collective also received a letter dated 6th December 2013, written by the Director NIT’s, Ministry of Human Resource Development Department of Higher Education informing the Assistant Director General (ME),  Ministry of health and family that they have issued directions to NIKT Surathkal.

Read the full text of the letter HERE

 

Read the 3 replies from Jamia University agreeing to remove the policy –

REPLY 1;

REPLY 2;

REPLY 3. .

 

Pre-marital Mandatory Testing for HIV

An often recurring debate in the country has been whether an HIV test should be made mandatory prior to marriage. The Lawyers Collective has made submissions to various state governments arguing that pre-marital mandatory testing would not be successful in preventing transmission of HIV at an individual level and instead would adversely impact and damage the National AIDS Control Programme at a public health level.  The policy focus must instead be on addressing gender biased social and cultural norms and reducing gender inequities both outside and within marriages. Ensuring economic and social autonomy of women will increase their ability to negotiate safe sexual activities. The submissions have been published in the form of a newsletter which can be read HERE.

 

Summary of Important Cases on HIV

The widespread discrimination, stigmatisation and violation of rights that people living with HIV face have necessitated a judicial response. At the same time, the urgency of tackling HIV has opened an opportunity to correct shortcomings of the system. Both these have led to a string of judgments. The Lawyers Collective has compiled some of the significant cases in the context of HIV/AIDS, both Indian and international, some of which lay down principles of common law that are applicable in the context of HIV and some which deal with HIV and AIDS directly. Click HERE for the compilation of judgments.

Sankalp Rehabilitation Trust v. Union of India – Supreme Court of India

In 1999, the Lawyers Collective through the Sankalp Rehabilitation Trust, Mumbai, filed public interest litigation (PIL) in the Supreme Court seeking to address barriers that prevented the access of people living with HIV (PLHIV) to health care services, especially discrimination faced by people living with HIV in hospitals. As the National AIDS Control Programme progressed with the introduction of anti-retroviral therapy in 2004, this PIL has been sought to be used as an oversight mechanism for the National ARV Rollout Programme and a number of issues affecting access to treatment have been addressed. To date, significant progress has been made through three major orders passed by the Court.

In 2008, Sankalp Rehabilitation Trust, at the request of the Court, filed the directions that it sought from the Court with the justifications for the same. After a series of meetings between the National AIDS Control Organisation (NACO), people living with HIV, the Office of the Solicitor General of India and the Lawyers Collective, fourteen points were agreed upon and then endorsed by the Supreme Court in the first major order that was achieved in the case. The Supreme Court order included:

  • rapid upscale of ART centres and Link ART centres;
  • increasing the number of CD4 machines and ensuring their maintenance in a timely and efficient manner;
  • ensuring adequate infrastructure in ART centres – adequate seating space, clean toilets and safe drinking water;
  • creation of a grievance redressal mechanism by the institution of a complaint box in every ART Centre and appointment of Nodal Officers to review the complains as well as through the creation of a State Level Grievance Redressal Mechanism.
  • provision of free treatment for opportunistic infections;
  • ensuring the non-discrimination of people with HIV in heath care settings;
  • ensuring availability of universal precautions and post exposure prophylaxis for health care providers in public hospitals

Read the directions with justifications sought from the Court HERE.

Read the full text of the Order HERE

Read the status report filed by NACO in 2009 HERE.

The next major order came in 2010, in response to the plea raised by NACO that private doctors were not following its protocol regarding the prescription of ARVs, often leading to irrational prescription of ARVs. The Court endorsed NACO’s Office Memorandum as an order, requiring all private doctors to follow NACO’s protocol while prescribing ARVs. All private doctors and hospitals were further asked to submit information regarding the number of persons that were on first line treat, second line treatment and those who were on an irrational prescription.

Read the full text of the order HERE.

An application was then filed challenging NACO guidelines which limited the provision of second line ARV treatment to four categories of persons – widows, children, those below the poverty line and those who had been on first line ARVs in the Government Programme for two years previously. The Guidelines where challenged as being in violation of Article 14 (right to equality) and Article 21 (right to life including the right to health). After clear indication from the Court that such a scheme was impermissible in our constitutional scheme of things and a series of discussions, NACO agreed that second line would be provided to all those PLHIV who need it, irrespective of other criteria marking a major breakthrough in the provision of universal access to treatment.

Read the full text of the order HERE.

Read the status report on the availability of second line drugs filed by NACO HERE.

Karnataka Network for People living with HIV/AIDS (KNP+) v. Mr. Balachandra K Pagali Nayak and Others – Karnataka High Court (WP NO.8852/2006(GM)RES)

This Public Interest Litigation was filed by the Lawyers Collective through the Karnataka Network of People Living with HIV/AIDS (KNP+), against four individuals claiming to have a cure for HIV/AIDS. Through advertisements, web sites and pamphlets, these individuals were advertising and selling medicines that allegedly cured HIV/AIDS and thereby misleading and inducing people living with HIV. KNP+ argued that such claims violate the fundamental rights of the PLHIVs guaranteed under Article 21(the right to life including the right to health) of the Constitution,

On 27th March 2007, the Karnataka High Court granted an interim order:

  • Restraining the four individuals from issuing or publishing any advertisements, broachers, pamphlets, press releases or any other information or material including putting up of a web site or any other information on the internet, claiming to have a cure or treatment for HIV/AIDS.
  • Further restraining the four individuals from manufacturing, selling, distributing, marketing drugs claiming to provide treatment or cure HIV/AIDS.
  • The Department of Health of the State of Karnataka and the Drug Controller, Bangalore were directed to keep vigil against false propaganda or publication regarding the treatment or cure for HIV/AIDS.
  • The Drug Controller General of India to pursue and proceed with criminal proceedings or actions already initiated against the four individuals.

Read the full text of the Interim Order of the Court HERE.

The President, National Anti-Corruption and Crime Preventive Council, Mumbai v. The Superintendent, Children’s Observation Home, Dongri, Bombay and Ors. (PIL 152 of 2004) – Bombay High Court

In 2004 the President of National Anti-Corruption and Crime Preventive Council, Mumbai wrote a letter to the Chief Justice of the Bombay High Court highlighting the plight of children in Homes for Children run by the State with the Children’s Aid Society (CAS). This letter was converted into public interest litigation by the then Chief Justice.

The CAS, as managed and governed by the State Government, was established, amongst other things, to carry out activities relating to child welfare and child development, to maintain observation homes and other institutions for children. The CAS has 9 institutions under its control and management. In 7 of these homes, approximately 2,500 disadvantaged children are housed through out the year.

The Bombay High Court by its order dated 4th July 2007, directed the Assistant General Pleader and the Counsel for the Petitioner, that is, Senior Advocate Mr. Anand Grover, to visit the 7 Homes of the CAS including its Accounts Office and submit a joint report. The said detailed joint report was then filed in August 2009.

Read the full text of the order HERE

Read the full text of the report submitted HERE

Recently, the matter was heard by the Chief Justice of the Bombay High Court, who noted the absence of compliance and/or Action Taken Report. The Petitioners also pointed out the vacancy in the post of the Chairman and the Governing Council. Under these circumstances the High Court directed the Government, i.e. officer not below the rank of Joint Secretary of the Government of Maharashtra, Women and Children Welfare Department to file “Action Taken Report” by 31st December 2011. Additionally, the Court directed the State Government to address the question of vacancies in the Office of the Chairman and other committee members of the Children Aid Society by 31st August 2011.

Read the full text of the order HERE

 Judgments

The Lawyers Collective has fought a number of landmark cases for people living for HIV pertaining to discrimination on the ground of a persons HIV status, breach of confidentiality, negligence in blood transfusion and the implementation of the National AIDS Control Programme, amongst others, Below are the judgments in some the significant cases fought by the Unit.

 

  1. Public Health
    1. Lucy R. D’Souza v. State of Goa  (AIR 1990 Bom 355)
    2. LX v. Union of India, Delhi High Court (Order dated 5 May 2004)
    3. Shri Subodh Sarma & Anr. v. State of Assam & ors. (2000) – Guwahati High Court
  1. Confidentiality
    1. Mr. X v. Hospital Z (1998) – Supreme Court of India
    2. A, C & Ors. v. Union of India & Ors (1999) – Bombay High Court
    3. Mr. X v. Hospital Z (2002) – Supreme Court of India
  1. Discrimination
    1. MX v. ZY AIR 1997 Bom 406, AIR1997Bom406, 1997(3)BomCR354, (1997)2BOMLR504 — Bombay High Court
    2. Mr. Badan Singh v. Union of India & Anr. (2002) — Delhi High Court
    3. X v. State Bank of India (2002) – Bombay High Court
    4. G v. New India Assurance Co. Ltd. (2004) Bombay High Court
    5. X v The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82
    6. RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal]
    7. S. Indian Inhabitant of Mumbai v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999]
    8. A v Union of India [Unreported (28 November 2000) In the High Court at Bombay, WP No. 1623 of 2000 and Review Petition No. 3 of 2000]
  1. Quacks
    1. India Network of Positive People v T.A. Majeed & Ors
  1. Blood Safety
    1. P v. Union of India (2001) — Kolkata High Court (Negligence in blood transfusion)
    2. M Chinnaiyan v. Sri Gokulam Hospital (2006) – National Consumer Disputes Redressal Commission

 

Public Health

Lucy R. D’Souza v. State of Goa [Bombay High Court (AIR 1990 Bom 355)]

The late Dominic D’Souza had gone to donate blood where he was found to be HIV positive and as a result was quarantined in a TB hospital. The Goa, Daman and Diu Public Health Act, 1985 authorised the State of Goa to mandatorily test any person for HIV and isolate persons found to be HIV positive and on such conditions for such period as may be prescribed. The provision was challenged before the Goa Bench of the Bombay High Court by Dominic’s mother, Lucy D’Souza, on the ground that it violated the fundamental rights of her son, guaranteed under Articles 14 (right to equality),19(1)(d) (right to move freely throughout the country) and 21 (right to life) of the Constitution.

The Court held that the matter essentially fell in the realm of policy and this decision was taken by those who were in charge of advancing public health and who were equipped with the requisite know-how. Further, while recognizing the harmful effects of isolation of people living with HIV, the Court held that held that in case of a conflict between individual liberty and public health, considerations of public health would prevail. However after the judgment had been passed, the Government has not to implement the impugned Act. Read the full judgment HERE

LX v. Union of India [Delhi High Court (CWP – 7330/2004, 5 May 2004)]

LX, an undertrial, tested HIV-positive and required antiretroviral therapy (ART) during the time he was incarcerated. He was initiated on an ART regimen by the jail hospital and Safdarjung Hospital. Subsequently, he was released on bail, but the authorities informed him that his treatment would be discontinued once he was released. The drugs were priced such that he could not afford to purchase them once he was released. LX filed a petition praying that the Government continue to provide him ART despite his release.

In a series of interim orders, the Delhi High Court directed the Government to continue to provide ART to LX. Later, LX was directed to present himself at the All India Institute of Medical Sciences (AIIMS) with his past records for the continuation of his treatment. Pursuant to the commencement of the ARV roll-out by the Government of India in April 2004, the High Court directed the government provide ART to LX under the ARV roll-out programme and to reimburse AIIMS for the costs incurred by them. Read the full order HERE.

Shri Subodh Sarma & Anr. v. State of Assam & Ors. – Guwahati High Court (2000)

This public interest litigation was filed praying for the proper utilisation of funds allocated by the Central Government to Assam for the HIV programme. Grievances of the Petitioners included, a lack of systemised data, general awareness among the public and proper documentation, blood banks operating without licenses and control, misallocation of funds, discrimination against people living with HIV, amongst others.

The Court directed the Respondents to:

  • Properly implement guidelines and strategies formulated by NACO in letter and spirit.
  • Not divert funds released by the Union Government to any other heads of account except for the implementation of the programme as per guidelines and strategies formulated by NACO. Enquire as to the irregularities in funding affairs, and take appropriate remedial measures.
  • Close Blood Banks without valid licenses and establish a State Transfusion Council to regulate Blood Banks in the State ensuring that all tests mandatorily required to be done as prescribed by the WHO before transfusion of blood.
  • Open AIDS Counselling Centres at different State Hospitals and ensure their effective functioning, and appoint trained and qualified persons
  • Provide adequate equipment and other facilities in the three state Medical Colleges.
  • Evolve monitoring system to supervise the implementation of the Programme
  • Ensure persons suspected to be living with HIV/AIDS are not refused treatment in the hospitals.

Ram @ Ramdas R. Ubale v. State of Maharashtra – Bombay High Court (Criminal Application 371 of 2008 in Appeal No. 706 of 2006)

In September 2008, an HIV positive prisoner from Yerwada Prison, Pune appealed for bail on the grounds that medical facilities in the prison were insufficient to manage his medical condition. He provided data to show that 32 prisoners in Yerwada prison had died between 2001 and 2005 due to non-availability of medical facilities. The Court however, based on expert opinion, dismissed the appeal, concluding that the applicant’s CD4 count did not indicate the needs for initiation of ART treatment. While the application was pending, the prisoner died.

Broadening the scope of the case, the High Court ordered NACO through MSACS to provide counselling and testing facilities in prisons in Maharashtra. Mr. Anand Grover and Mr. Yug Choudary were appointed amicus curiae (friend of the court) to help and guide the Court. Two pilot projects were started at Yerwada and Amravathi prisons, providing counselling and testing services and later at Nasik and Thane. Anand Grover submitted a note on national protocols prescribed by NACO which stipulate voluntarycounselling, testing and treatment. An expert Committee was setup to examine the note and propose their suggestions in addition to inspecting the prisons.

Read the order dated 09.01.2009 HERE

Read the full text of the amicus noteHERE

On 15th September 2009, the Court directed the Secretary (Health), Secretary (Home) and Secretary (Finance) to meet and pass a final order to protect the health of prisoners. The State Government was directed to issue an advertisement for the recruitment of the doctors and provide the details of infrastructure in the jails with regard to establishment of hospitals and dispensaries. In the interim period doctors from civil hospitals and NGOs were to be accepted in the jails. Read the order dated 15.09.2009 HERE.

On 12th January 2010, the minutes of the meeting, held as per the direction of the court, on 4th January 2010 were filed in Court setting out a tentative schedule for establishing  laboratories, organising sensitisation camps and starting of full fledged ICTCs in four prisons i.e. Nashik, Yerawada (Pune), Nagpur and Thane.  The Court ordered the State Government to complete the process of recruitment of medical officers at every prison, by 20th February 2010. They were also directed to follow the tentative schedule and set up full fledged ICTCs latest by 15th February 2010 in the aforesaid four Jails. Till full fledged ICTCs were set up and were in prisons where no ICTCs were available, the State was directed that the patients/prisoners be regularly taken at the civil hospital under the Police escort. Read the order dated 12.1.2010 HERE.

On 2nd March, 2010, the Court was informed that the Government had sanctioned necessary funds for purchase of material and equipments for setting up laboratory and counseling centres at four Central prisons i.e. Thane, Nashik, Nagpur and Pune. The State Government was directed to give particulars as to whether the centres had started functioning which was filed subsequently. Read the order dated 2.3.2010 HERE.

In view of the orders passed the matter was disposed off with a number of directions, some of which are highlighted below:

  1. ICTC personnel may visit the prisons in the State where regular ICTC facilities are not available at least once in a week;
  2. The State may try to increase the strength of sanctioned posts of Medical Officers in order to see that every person may have medical officers whose services can be utilised at the prisons. Till such time, the State was directed and see that a medical officer who is in charge of a local dispensary may visit such centre where there are no medical facilities regularly and at lease thrice a week;
  3. One post of Laboratory Technician be filled latest by 31st July, 2010; So far as the remaining 11 posts of compounders were concerned, the State Government was directed to expedite the appointment procedure within a period of one month from today;
  4. The State was directed to educate the prisoners by way of advertisement or by showing documentary films about the risk factors involved with HIV, with a view to curb its spread in the jails,
  5. Where a prisoner was suffering from serious disease, the procedure prescribed in Rule 27 of the Maharashtra Prisons (Review of Sentences) Rules, 1972 is required to be followed. This should be brought to the notice of the officers in charge of the various prisons in the State of Maharashtra as well as to the medical officers so that these Rules can be properly followed in a given case.

Magistrate’s were also directed to inspect the concerned prison periodically at least once in a month in order to monitor whether the appropriate facilities are available and whether the patients are properly getting medical treatment at various prisons.

Read the order dated 8.3.2010 HERE.

CONFIDENTIALITY

Mr. X v. Hospital Z (1998) 8 SCC 296, AIR 1998 SCW 3662 — Supreme Court of India

Mr. X, was directed by the Government to accompany his uncle, who was a minister in the State Government, to Z Hospital in the south of India for treatment. The minister was posted for surgery, however, it was cancelled due to shortage of blood. Later, Mr. X and his driver were asked to donate blood for the operation. Their blood samples were taken and test results showed that Mr. X’s blood group was A(+ve). However, Mr. X was not disclosed the result of his tests at all.

A bit later, Mr. X proposed marriage to one Ms. Y which was accepted. In the meantime, the Hospital informed the minister that Mr. X had tested positive for HIV. When he came to know of this, Mr. X himself called off the marriage. He went again to the Hospital Z where several tests were conducted and he was confirmed to be HIV positive. Since the marriage had been settled but was subsequently called off, several people including the members of the Mr. X’s family and persons belonging to his community became aware of the appellant’s HIV positive status. This resulted in severe criticism of Mr. X and he was ostracized by the community, forcing him to leave his State.

Mr. X then approached the National Consumer Disputes Redressal Commission for damages against the Hospital Z, on the ground that the information which was required to be kept confidential at common law and under medical ethics was disclosed illegally. The Commission dismissed the Petition summarily by its order dated 3rd July 1998 on the ground that Mr. X could seek his remedy in the civil court.

Mr. X therefore approached the Supreme Court. The question of law before the court was whether the National Consumer Forum had the jurisdiction to entertain a case in which the plaintiff was HIV positive and whose status was disclosed by the hospital to 3rd parties. The Supreme Court, however, chose to pass a judgment on merits and held that:

  1. Patients suffering from ‘AIDS’ deserve full sympathy and are entitled to all respect as human beings. Jobs cannot be denied to them.
  2. Although the doctor-patient confidentiality is an important and part of the medical ethics incorporated by the then Medical Council Act, a patient’s right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse.
  3. Since HIV is fatal and the life of the spouse has to be saved, the right to privacy of the patient is not absolute in this situation and may be restricted. There was nothing wrong, therefore, in Hospital informing the prospective spouse of Mr. X’s HIV status.
  4. Since acts likely to spread communicable diseases are
  5.  a crime, the failure of the hospital to inform the spouse of the disease would make them participant criminals
  6. Since Indian matrimonial laws provide venereal disease as a ground for divorce, a person suffering from a VD had no right to get married till s/he is fully cured and such a right must be treated as a ‘suspended right’.

Against this Judgment an application was filed before the Supreme Court to review and clarify to judgment.  

Read the full judgment HERE.

A, C & Ors. v. Union of India & Ors. (1999) – Bombay High Court

A, a female and C, a male, both of whom had been diagnosed as HIV positive. They desired to get married to each other. They filed this Writ Petition in the Bombay High Court, seeking clarifications in the light of the Supreme Court judgment, in Mr. X v. Hospital Z(1998) 8 SCC 296 which had held that the person’s right to get married was suspended, during the period when a person is HIV positive and if a person living with HIV were to marry, he or she may be guilty of an offence under the Indian Penal Code.

The Bombay High Court held that as a person living with HIV had moved the Supreme Court, on the same issues raised in the Petition, contending that his fiancée had no objection to living with him in wedlock, and had sought clarifications from the Supreme Court, as to whether a person suffering from a communicable disease has a right to marry and even if such a marriage is solemnised by mutual consent, whether it attracts criminal action, A and C therefore, ought to approach the Supreme Court and all the more when the Supreme Court itself was seized of the matter. Read the full order HERE.

Mr. X v Hospital Z (AIR 2003 SC 664, (2003) 1 SCC 500) – Supreme Court of India

This case was filed by the Lawyers Collective HIV/AIDS Unit on behalf of its client Mr. X, seeking clarifications and challenging the judgment of the Supreme Court in the case of Mr.X v. Hospital Z (1998) 8 SCC 296, where it had suspended the right of PLHAs to marry although it was never an issue before it.

The Court held that all observations relating to marriage in Mr. X v Hospital Z 1998 were not warranted as they were not issues before the court. However, the Supreme Court’s pronouncements regarding the role of hospitals to make disclosure of HIV status in Mr. X’s judgment remain as they were made regarding an issue before it in the case

Therefore, it held that the Supreme Court’s judgment in Mr. X v Hospital Z to the extent that it suspended the right of people living with HIV/AIDS to marry is no longer good law and restored the right of an HIV + person to marry. However, it further held that this does not take away from the duty of those who know their HIV+ status to obtain informed consent from their prospective spouse prior to marriage. Read the full judgment HERE.

DISCRIMINATION

MX v. ZY AIR 1997 Bom 406 – Bombay High Court

MX was working as a casual labourer for a public sector corporation, ZY.  After working for sometime, MX was put on a selection panel of casual labourers for confirmation to a regular post, for which he was required to undergo medical examination. The examination revealed that he was HIV positive, but otherwise physically fit. After learning the results of his medical examination, the Respondent, ZY, deleted MX’s name from the selection panel of casual labourers, and terminated his contract. MX challenged his removal as well as the rules framed by his employer which required that all employees undergo mandatory testing for HIV and those testing positive would not be recruited, arguing that they violated Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life).

In a landmark judgment, the Bombay High Court held that no person could be deprived of his or her livelihood except by procedure established by law and that the procedure must be just, fair and reasonable. It held that:

  1. If a person is fit to perform his job functions;
  2. is otherwise qualified and
  3. does not pose a substantial risk to fellow workers;

Further, the Court held that a public sector employer cannot deny a person employment solely because he is HIV positive. Each determination of whether a person is incapable of performing the job must be made by conducting an individual enquiry taking into account the state of medical knowledge at the time. Accordingly, the High Court found that MX’s dismissal was arbitrary, unjust, and unlawful.

The court further held that in proper cases where a person can show that he or she would not be able to prosecute his or her if his status is disclosed and in the interests of the administration of justice, the Court will permit the party before it to suppress his or her identity and prosecute or defend the proceedings under an assumed name. Read the entire judgment HERE.

Mr. Badan Singh v. Union of India & Anr. Delhi High Court (2002)

Seven years after Mr. Singh was enrolled in the Border Security Force, it was discovered that he had contracted HIV Infection as well as tuberculosis of the lungs and abdomen with infective hepatitis. The Medical Board considered him unfit for further service. A Review Medical Board was also convened on his request but also arrived at the conclusion that he was unfit for further service. Mr. Singh was medically boarded out from service with seventy per cent (70%) disability though he asserted that on the date of the termination of his services, he was capable of performing the duties assigned to him but the Respondents made no effort to consider this aspect.

Pension rules of the BSF do not preclude a person from obtaining a pension if the infirmity which permanently incapacitates them results from the duties officially performed. It was held that one of the essential functions and duties of the Government and any other Authority directly sourced from Government funds is to extend medical benefits and support to the suffering. The Court observed that the grant of invalid pension is nothing more than a basic obligation. The Respondents were directed to pay the Petitioner an invalid pension and interest at the rate of 6% p.a. as well as costs of the petition, quantified at Rs. 5000. Read the full judgment HERE.

X v. State Bank of India (2002) – Bombay High Court

Mr. X had been working at State Bank of India as sweeper (casual labour) since 1987. In about 1997 the bank considered X for recruitment as hamal-cum-sweeper for which he was interviewed. He was thereafter asked to undergo a medical check-up which included an HIV test. He tested positive for HIV. He was orally informed by his supervisor at the bank that he was rejected on grounds of his HIV positive status. X kept visiting the bank but he was not asked to undergo further fitness test or given a letter rejecting his application.

X approached the Bombay High Court on the ground that he was being discriminated against because of his HIV status. The court relying on the decision in MX v. ZY (AIR 1997 Bombay 406), held that X could not be denied the opportunity of employment, however, due to the passage of time, he would have to undergo reasonably required tests for his physical fitness. The bank was to consider Mr. X for absorption on a priority basis, subject to his medical eligibility, and till then he would be considered a casual labourer. Read the full text of the judgment HERE.

G v. New India Assurance Co. Ltd. (2004) – Bombay High Court

G was a widow whose husband died while in employment of New India Assurance Co. Ltd. (the company). She had three minor children. She applied to the company for employment on compassionate grounds. On medical examination she was found HIV positive and the company’s doctor opined that her HIV positive status made her medically unfit. Thereafter, the company sought an expert opinion, who on the other hand opined that G was medically fit to join the company and could perform her daily routine work. Her application however was rejected

G approached the Bombay High Court which directed the Company to appoint G on compassionate grounds as a Class IV employee on temporary basis. The company was given liberty to seek further medical opinion about G. The Committee, so appointed, also recommended G for employment. The company was directed to appoint G on compassionate grounds to the post to which she was appointed for temporary period or another suitable post and give her all consequential benefits.

The Court held that a person who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive. The Court further held that a person’s HIV status cannot be a ground for rejection for employment as it would be discriminatory and would violate of the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution.Read the full judgment HERE.

X v. The Chairman, State Level Police Recruitment Board & Ors, 2006 ALT 82

X, a Reserve Police Constable, had applied for the post of Sub-Inspector of Police (Civil). Though he qualified both the physical and written tests and was provisionally selected as Sub-Inspector of Police, he was denied appointment on the ground that he had tested HIV positive. The Police Department relied on Order 70(3) of the A.P. Revised Police Manual which prohibited the appointment of, otherwise eligible, HIV positive candidates as Sub-Inspector of Police.

On being denied appointment, X first approached the Andhra Pradesh Administrative Tribunal which held that he was not entitled to any relief on the ground that the A.P. Revised Police Manual permitted the state to not employ persons living with HIV.  Against the order of the Tribunal, a writ petition in the Andhra Pradesh High Court was filed challenging Order 70(3) of the A.P. Revised Police Manual, arguing that denial of employment to a person only on the ground of being HIV positive infringes their right to life and livelihood.

The High Court struck down Order 70 (3) and relying on MX v ZY (AIR 1997 Bom 406) held that a person, who was fit, otherwise qualified and posed no substantial risk to others, cannot be denied employment in a public sector entity. Read the full judgment HERE.

The matter was appealed in the Supreme Court, but was dismissed.

RR v. Superintendent of Police & others [Unreported (2005) Karnataka Administrative Tribunal

In 1999, RR had applied for the post of police constable. He appeared for the interview and was provisionally selected. He was compelled to undergo a physical fitness test where he was found to be living with HIV and his appointment was cancelled due to his HIV status. RR approached the Karnataka Administrative Tribunal, challending a circular of the police that disqualifying applicants testing HIV positive from being inducted into the Karnataka Police force on the ground that it violated of Articles 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life).

The Tribunal relied upon MX v ZY AIR 1997 Bom 406 and Mr X v Hospital Z (Right to marry) 2002, SCCL.COM 701 and declared that a person, who was fit, otherwise qualified and posed no substantial risk to others, couldn’t be denied employment in a public sector entity. It further declared the circular to be unconstitutional under Articles 14 and 16 of the Constitution and directed the Government to ensure that no denial of employment on the grounds of a person’s HIV occur in the future. It further directed the Respondent-State to provide employment to the applicant as Police Constable (Civil) from the date he was entitled to. Read the full judgment HERE.

S v. Director General of Police, CISF and others [Unreported (2004) High Court at Bombay in WP No. 202 of 1999]

S (the petitioner) was a widow. Her husband was a Head Constable working with CISF. Her husband, the only earning member of the family, had died of HIV/AIDS related illness. S applied for compassionate employment to the CISF which was rejected without any reason and she had to vacate the residential quarters allotted to her husband while in service. S was in the asymptomatic stage and her immune system was good. She also had to incur additional expenses for medical treatment for her daughter and herself, both of whom were HIV+. The Respondents claimed that no vacancy existed.

S approached the Bombay High Court on being denied compassionate employment on the ground that the act of the CISF amounted to discrimination on the basis of her HIV status. The Court held that there should be no delay in appointment in all claims of compassionate employment. If there exists no suitable post, a supernumerary post must be created. The court directed the respondents to create a supernumerary post for the petitioner within 8 weeks, and consider her case for grant of service quarters on priority basis in accordance with the rules. Read the full judgment HERE.

A v Union of India [Unreported In the High Court at Bombay(28 November 2000)WP No. 1623 of 2000

The Petitioner (A) joined the Indian Navy and was posted in the Submarine branch. He was deputed in a crew to bring a submarine from Russia in 1997. At that time he had to undergo medical examination, wherein he tested HIV positive. A was placed in a low medical category and was continued in service, so as to enable him to complete 15 years of service, which will entitle him to full pensionary and other benefits.

Later, recommendations and requests from his Commanding Officer and the Staff Officer (Personnel) that A for reengagement for a further period of three years, the higher authorities in the Navy informed the Petitioner that his case was not recommended as he was HIV Positive. The Petitioner approached the Bombay High Court, arguing that the Respondents letter and Naval Order 26/93 violated Article 14 (right to equality), 16 (right to non-discrimination in government employment) and 21 (right to life) of the Constitution.

Holding that no person had a right to be re-engaged, the High Court did not find the letter and Navy order to be in violation of Article 14 and 21 and dismissed the Petition. Later on a Review Petition  was filed on the ground that the Hon’ble High Court had not expressed any opinion on whether the Petitioner may be given an onshore duty, instead of duty in the submarine. The High Court held that this matter had to be considered by the authorities, if such a request is made by the Petitioner. It was open to the Petitioner to make an appropriate representation to the authorities concerned. Read the full judgment HERE.

CSS v. State Of Gujarat (2001) [Unreported Special Civil Application No. 11766 of 2000 (Gujarat High Court) (17 February 2001)

CSS was selected for the post of unarmed police constable in the Gujarat State Police force. He appeared for the medical fitness test. The Civil Surgeon classified CSS as “not medically fit” as he was HIV-positive without conducting any further medical examination. After the Civil Surgeon communicated the letter of fitness to the police force, CSS’s name was deleted from the list of selected persons. Further, CSS also alleged that other HIV-positive candidates, whose parents were serving in the police force, were appointed. This allegation was not controverted by the Respondent.

The Court, following MX v ZY (AIR 1997 Bom 406), held that an HIV-positive person who is otherwise medically fit shall not be denied opportunity of employment solely on the ground of his HIV-positive status. Further, the deletion of CSS’s name in light of the specific instances of appointment of two other HIV-positive constables, which were not controverted by the Respondent, violates Articles 14 (right to equality) and 16 (right to non-discrimination in government employment) of the Constitution.

The Court therefore directed the Respondent to restore CSS to the list of selected persons and send him for further medical examination. The Respondent was further directed not to deny opportunity of employment to CSS solely on the ground of his HIV-positive status, if he is otherwise medically fit. Read the full judgment HERE.

Quacks

India Network of Positive People v T.A. Majeed & Ors. (Order of the Supreme Court in SLP (Civil) No(s). 5527/2004 dated 03/01/2007)

In 1993 the Drug Controller of Kerala issued a licence to one T.A. Majeed to manufacture ‘Immuno QR’ powder – an ayurvedic medicine claiming to increase the resistance of persons for certain ailments, like night sweats, fever, cough and skin problems. Contrary to the conditions of the licence, Majeed started selling Immuno QR as a “cure” for AIDS. Consequently, in September 1997 the Drug Controller cancelled Majeed’s licence. Majeed challenged this order before the Kerala High Court which stayed the Drug Controller’s order; which meant that Majeed could continue manufacturing and selling the drug till the final disposal of the case and as a result also as a “cure” for HIV/AIDS.

Between 2000 and 2001, petitions were filed in the Bombay and Kerala High Courts by the Maharashtra Network of Positive People (MNP+) and the Peoples Union for Civil Liberties (PUCL) respectively to prevent Majeed and others from advertising any cure for HIV/AIDS. Both Courts restrained Majeed from advertising Immuno QR as a cure for AIDS.

However, Majeed was allowed under a previous order of the Kerala High Court to continue the manufacture and sale of Immuno QR. It was in this case, originally filed by Majeed to challenge the Drug Controller’s order, that the Indian Network for People living with HIV/AIDS (INP+) filed an intervention application.

In December 2001, the Kerala High Court restrained Majeed from manufacturing any drug for which a licence was required. In response, Majeed filed a Special Leave Petition (SLP) in the Supreme Court, which sent the matter back to the Kerala High Court directing Majeed not to manufacture Immuno QR.

When the matter was taken up by the Kerala High Court in August 2003, it was informed by the government pleader that a committee consisting of experts in the field of ayurvedic medicine had been set up but had failed to meet. The government asked for three months. However, the High Court allowed Majeed to manufacture and sell Immuno-QR as long as he did not advertise it as a cure for AIDS until the committee gave its report. The High Court further directed the government to clinically test the drug and submit its report to the Court. Effectively Majeed continued to manufacture and sell the drug.

INP+ then filed an SLP in the Supreme Court against the order of the Kerala High Court.  On the 3rd of January 2007, the SLP filed by INP+ came up for hearing before the Supreme Court, the Court:

  1. Set aside the order of the Kerala High Court which had suspended the Drug Controller’s order of cancellation of the drug and substituted that order with its earlier order that directed Majeed not to manufacture Immuno QR till the final disposal of the case.
  2. Held that it was not a valid ground to stay the order of the Drug Controller that the committee had not been able to examine the drug and file its report.
  3. Directed the Kerala High Court to expedite the hearings and dispose of the Petitions pending before the court preferably within three months.
  4. Restrained Majeed from manufacturing and selling Immuno QR till the final disposal of the cases pending in the Kerala High Court.

Read the full judgment HERE.

Blood Safety

P v. Union of India (2001) — Kolkata High Court (Negligence in blood transfusion)

P, a pregnant lady was admitted for delivery of her child at a hospital under the administrative control of the Indian Navy. After delivery P required blood transfusion. A sailor donated blood to hospital, which did not come from the blood bank of the hospital as required under the provisions of the Drugs & Cosmetics Act. The sailor’s blood was not tested for HIV at the time of donation. He was later found to be HIV+. P also became HIV+ which was clearly on account of the negligent transfusion of blood to her.

The Court felt that since the hospital was under administrative control of the Indian Navy, it had a duty to compensate P. Pursuant to correspondence between the parties Indian Navy made an offer of compensation which included, a Government job at Kolkata or the place where she desired, accommodation on her appointment on the usual terms and conditions, a sum of Rs. 10 lakhs from the date of filing of the writ petition @ 18% interest and medical treatment at the cost of the Government. P agreed to the offer and the Court passed the judgement in terms of the compromise arrived at by the parties. Read the full judgment HERE.

M. Chinnaiyan v Sri Gokulam Hospital & Queen Mary’s Clinical Laboratory (National Consumer Dispute Redressal Commission, 2006)

 The Appellant’s wife underwent a hysterectomy operation, at the 1st Respondent hospital in 1990 where she was transfused 2 units of blood post her operation which was procured from the 2nd Respondent laboratory in 1990. In mid-1994 the Appellant’s wife developed recurrent loose motions, weight loss, respiratory infection and difficulty in swallowing etc. On being tested she was found to be HIV+ and showed symptoms of AIDS. In July 1995, she developed left-sided hemiparesis, oral candidiasis and TB. Later she was diagnosed with glioma of the brain and died in August 1995.

Her husband filed a complaint before the State Consumer Redressal Forum against the hospital and pathology laboratory for deficiency of services under the Consumer Protection Act. His Complaint was rejected. Aggrieved by this order he appealed to the National Consumer Dispute Redressal Commission (National Commission). The National Commission held:

The 1st Respondent gave blood transfusion without obtaining the consent of the patient and that the concerned doctor negligently transfused blood, as he did not inform the Petitioner’s wife about the benefits, risks or alternatives of blood transfusion, which amounted to deficiency of service under the Consumer Protection Act.

Furthermore, the Drugs and Cosmetics Rules, 1945, requires that every licensee of a blood bank get samples of every blood unit tested for freedom from HIV antibodies, which the 2nd Respondent had failed to do.

As compensation, the Commission awarded Rs. 4,00,000 (Rs. 4 lakh) with interest at the rate of 6% p.a. from the date of filing the complaint, which was to be paid jointly and severally by the Respondents and Rs 10,000 as costs.

An appeal by one of the Respondents to the Supreme Court was dismissed.

Read the full judgment HERE.

HIV/AIDS Bill, 2007

The process of drafting the HIV/AIDS Bill started with the International Policy Makers Conference on HIV/AIDS, held in May 2002 in New Delhi, where the need for a law on HIV was highlighted. An Advisory Working Group (AWG), chaired by the National AIDS Control Organisation (NACO), was set up to initiate this process, comprising members from civil society, people living with HIV and the government. The AWG approached the Lawyers Collective HIV/AIDS Unit to undertake the task of preparing a draft law on HIV.

The AWG held 12 meetings between June 2002 and August 2003 to discuss various issues related to the draft law including the process for devising the law, reviewing material and literature collected and collated as background research for the law, and guiding Lawyers Collective HIV/AIDS Unit as it proceeded to work on the law. In addition to the AWG meetings, a meeting was held with the then Health Secretary, Ministry of Health and Family Welfare, Government of India, in November 2003 for an appraisal of the draft and the process adopted.

Why a special law on HIV?

HIV has revealed the inadequacies of existing laws as well as of the health infrastructure in India in an unprecedented way. It has highlighted most particularly the tensions and conflicts between health, human rights, state power and wealth. For example, in a health care setting, the lack of adequate resources pits the rights of a person living with HIV to treatment, against the rights of doctors and healthcare workers to universal precautions, making everybody vulnerable and exacerbating discrimination. Existing laws and policies reveal deeply rooted biases and inherent contradictions, which make it difficult for people living with HIV and marginalized communities to access services. Prime examples are criminalisation of soliciting for sex work and drug use, resulting, in the isolation of these communities, and in the negation of their rights.

India has no existing anti-discrimination legislation which would cover discrimination on the grounds of HIV. Nor is there an adequate existing health legislation in India to address all the issues discussed above. Specifically, a law on HIV is required for the following reasons:

  • The vagaries of common law: Most legal issues that arise in the context of HIV/AIDS are governed by common law – where law is defined by principles set down in prior case law by judges. This allows for the personal predilections of judges to impact cases of HIV and AIDS, an approach that lends itself to inconsistency, and to rulings that are sometimes in opposition to the existing, well thought out policy of the government.
  • Addressing discrimination in the private sector: The guarantee of equality in the Indian Constitution is available only against state entities and there is no restriction on discriminatory practices in the private sector, be it in healthcare, employment, or education. Most countries have enacted anti-discrimination laws applicable to the private sector to ensure a universally applicable legal system.
  • Insufficiency of policies: the Indian Government has adopted a number of policies on HIV which mandate a rights-based approach; these policies however, do not have the force of law and are not binding or enforceable in court.
  • Law reform: There are various interventions amongst marginalised populations like sex workers, injecting drug users and men who have sex with men in India that effectively check the spread of HIV, notably, condom promotion and needle syringe and exchange programmes. Harsh legal regimes like the Immoral Traffic Prevention Act, 1956, the Narcotics Drugs and Psychotropic Substances Act, 1985 jeopardize these initiatives. Such interventions have to be legally protected to ensure that they continue providing services and information that empower persons to protect themselves and others from HIV/AIDS.
  • Fulfilling international obligations and commitments: In 2001, the United Nations General Assembly adopted the Declaration of Commitment on HIV/AIDS. India as a signatory to this Declaration is committed to general obligations such as the prohibition of discrimination and specific obligations such as ensuring that by 2005, at least 90% of young persons aged 15 to 24 have access to information, education, and services necessary to reduce their vulnerability to HIV. The Indian government is obligated therefore to enact legislation that will fulfill these and other obligations such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination Against Women

For all these reasons we need a specific statute to address HIV/AIDS – its prevention, its treatment, and the manner in which we respond to the people most affected by it. A nationally applicable rights-based statute would serve several purposes in this regard. It would provide holistic coverage, consistency, clarity and predictability in order for courts to effectively pass judgment in HIV/AIDS cases; it would provide certainty for people to seek remedy from a strong, reliable legal system; and it would enshrine ethical, equitable and just practices that become harbingers for change in the many other contexts and spheres in which people are continuously disempowered. It will ultimately reflect the ideals and principles for a more inclusive and humane society.  

Drafting Process

The Bill was prepared after extensive research and nationwide consultations with stake-holders including people living with HIV, high risk groups, women and children’s groups, healthcare service providers, trade unions, lawyers and civil society organisations.

Dates

Consultation

Venue

6-7 Sept, 2003

People living with HIV

Mumbai

13-14 Sept, 2003

Marginalized populations

(Sex Workers, IDUs & MSM)

New Delhi

22-23 Nov, 2003

Healthcare Workers

Mumbai

12-13 Dec, 2003

World of Work

New Delhi

28-29 Feb, 2004

Regional – Maharashtra, Gujarat, Madhya Pradesh, Dadra & Nagar Haveli, Daman & Diu

Mumbai MDACS

13-14 Mar, 2004

Regional – Karnataka, Goa, Lakshadweep & Kerala

Bangalore KSAPS

27-28 Mar, 2004

Regional – West Bengal, Orissa, Bihar, Chhattisgarh, Jharkhand, & Sikkim

Kolkata WBSACS

17-18 Apr, 2004

Women’s Groups

Agra

5-6 June, 2004

Regional – Manipur, Assam, Meghalaya, Mizoram, Nagaland, Tripura & Arunachal Pradesh

Imphal Manipur SACS

8 June, 2004

NGOs providing care, support & treatment

New Delhi

5-6 July, 2004

Regional – Delhi, Uttar Pradesh, Rajasthan, Himachal Pradesh, Punjab, Chandigarh, Haryana, Uttaranchal & Jammu & Kashmir

New Delhi DSACS

31 July – 1

Aug, 2004

Children’s Groups

Mumbai

7-8 Aug, 2004

Regional – Tamil Nadu, Andaman & Nicobar Islands, Pondicherry & Andhra Pradesh

Hyderabad APSACS

6 Nov, 2004

Lawyers

Mumbai

21 Nov, 2004

Children

Vijayawada

Key Provisions

The 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.

  • Prohibition of discrimination: The Bill provides protection against discrimination in employment, education, healthcare, travel, and insurance in both the public and private sectors.
  • Informed consent for HIV testing, treatment and research: The Bill mandates the provision of non-coerced, written consent after giving full details about the risks, benefits and alternatives.
  • Non-disclosure of HIV related information:The Bill recognizes a person’s right to privacy and confidentiality of HIV status with certain exceptions
  • Access to treatment: The Bill requires that the State provide free of cost access to comprehensive HIV related treatment including antiretroviral drugs, diagnostics and nutritional supplements.
  • Right to a safe working environmentfor doctors, healthcare workers and other persons whose occupation may put them at risk of exposure to HIV. The Bill imposes an obligation on healthcare institutions to provide necessary universal precautions and prophylaxis.
  • Promotion of risk reduction strategies for groups at higher risk of HIV infection: Targeted interventions like the promotion of condoms among sex workers and men who have sex with men and distribution of clean needles to people who inject drugs have proven to prevent HIV transmission. Certain criminal laws, however, impede these services by threatening providers and recipients with prosecution. The Bill provides legal immunity to risk reduction programmes, thus strengthening efforts to prevent HIV.
  • Information, education, and communication:The Bill obliges the government to make HIV related information accessible to all. It also mandates the government to create IEC material with community inputs, showing sensitivity across gender and age. These resources should be multilingual, easily understood and regularly updated.
  • Implementation mechanismsincluding institutional grievance redressal, Health Ombudsman and HIV/AIDS authorities. These will be supported by special procedures to be followed in courts, including suppression of identity and expeditious hearing to make justice accessible to HIV affected persons.
  • Special provisions for those who are disproportionately affected by the epidemic, particularly women, children, and persons in the care and custody of the State-. These set of provisions define specific rights for women, children and people in the care and custody of state in order to counter the wide-ranging societal discrimination faced by them

The HIV/AIDS Bill was submitted to NACO in August 2006 after taking feedback from State Governments, State AIDS Control Societies (SACS) and Central Government Ministries. The Bill is still to be tabled in Parliament.

Download the HIV/AIDS Bill, 2007

Read summaries of the main provisions of the Bill

Read our newsletter on the entire process and drafting of the HIV/AIDS Bill 2007. 

Read our Leaflet on the HIV/AIDS Bill for the Parliamentarians

Legislating an Epidemic – HIV/AIDS in India: Manual on HIV/AIDS law (2006)
The Unit has consolidated its experiences and perspectives on HIV/AIDS and Human Rights by preparing extensive background papers on legal, ethical and human rights issues raised over the course of the HIV/AIDS epidemic. These papers have been published in the form of a book titled “Legislating An Epidemic: HIV/AIDS in India” by Universal Law Publishing Co. Pvt. In 2006.
Please write to us for a copy of the book.

Positive Dialogue
Between 1999 and 2007, the Lawyers Collective published a series of newsletters on important developments pertaining to HIV/AIDS related law, policy and programme development.

  1. Mandatory Pre-Employment Testing in the Armed Forces (October 2007)
  2. The Duty to Disclose – Prospecting Middle Ground (November 2004)
  3. Social Security and HIV/AIDS (March 2003)
  4. Mandatory Pre-Marital Testing (December 2002)
  5. Vaccine Research and Ethical Concerns (September 2002)
  6. The National AIDS Prevention and Control Policy – A Comment (June 2002)
  7. Talking about HIV/AIDS – Sensitisation of the Judiciary and Law Makers (February 2002)
  8. Informed Consent and Mandatory Testing (December 2001)
  9. Women and HIV/AIDS – The Perpetual Battle of the “Better Half” (August-September 2001)
  10. The Juvenile Justice (Care and Protection of Children) Act, 2001 – Impact in the context of the HIV/AIDS Epidemic (May 2001)
  11. Disability Law and HIV/AIDS (February 2001)
  12. HIV/AIDS and the Workplace (May 2000)
  13. The Judicial Response to HIV/AIDS (January 2000)
  14. Health Care Discrimination and HIV/AIDS (November 1999)
  15. The Right to Marry Campaign (April 1999)

Know Your Rights
Leaflets in regional languages on Health and Employment Rights

1. Rights of People Living with HIV

Download the leaflet in EnglishHindiGujaratiBengaliKannadaMarathiTelugu

2. Employment Rights of People Living with HIV

Download the leaflet in EnglishHindiMalayalamKannadaMarathiTelugu

Lesbian, Gay, Bisexual and Transgender (LGBT) Rights

Background

The term LGBT is a loose acronym denoting lesbians, gays, bisexual and transgenders and is inclusive of all forms of diverse sexualities. The operation of Section 377, Indian Penal Code (1860) that criminalised all forms of non-peno vaginal sexual acts, till recently, remained the biggest impediment to the full expression of sexuality and personhood of LGBTs. In July, 2009, the Delhi High Court in the Naz Foundation v. Government of NCT, Delhi and Others (160 DLT 277) decriminalized adult consensual same sex relations in private, thereby paving the way for the recognition of constitutional rights of equality, liberty and dignity of LGBT persons.

Section 377, IPC was ostensibly applicable to both heterosexuals and homosexuals but it was mostly used as a tool by police to harass, extort and blackmail men having sex with men. It also prevented homosexual men from seeking legal protection; for fear that they would themselves be penalized for sodomy. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all non-peno vaginal sexual acts under the vague rubric of ‘unnatural offences’.

In 2001, the Lawyers Collective on behalf of Naz Foundation (India) Trust, an NGO working on male sexual health and sexual minorities, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violating right to equality, right to non-discrimination, right to freedom of expression, right to life and personal liberty that included right to privacy, dignity and health. In July 2009, the Delhi High Court held that “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. ” Read more

15 Special Leave Petitions (SLPs) have been filed against the High Court’s decision in the Supreme Court of India. The Government of India has, however not filed an appeal. A few interventions in support of the judgment have also been filed. On behalf of Naz, the Lawyers Collective has filed a comprehensive counter affidavit against the SLPs. The matter is scheduled to be heard on 19th April 2011.

In another case, the Lawyers Collective moved the Allahabad High Court to defend the right to equality and non-discrimination of a gay University Professor. Read more

Besides, the Unit provides legal aid and representation to lesbian and transgender persons, who predominantly complain of intimidation and violence by the family, gender discrimination including access to sex re-assignment and detention on charges of begging or causing public nuisance. The Unit also conducts sessions on law and rights of LGBT persons, on request

Page under construction 

Section 377, Indian Penal Code, 1860 (hereinafter ‘IPC’) was enacted by the British colonial regime to criminalise ‘carnal intercourse against the order of nature’. It was rooted in the Judeo-Christian religious morality that abhorred non-procreative sex.

Section 377, IPC reads as:

“377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Initially covering only anal sex, it later included oral sex and still later, read to cover penile penetration of other artificial orifices like between the thighs or folded palms. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all penile-non-vaginal sexual acts under the vague rubric of ‘unnatural offences’

Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity. Besides, the society too identified the proscribed acts with the homosexual men, and the criminalisation had a severe impact on their dignity and self-worth. Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces.

The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in the field of HIV prevention amongst homosexuals and other men having sex with men (MSM), realised that Section 377, IPC constituted one of the biggest impediments in access to health services for MSM. MSM remained a hidden population due to fear of prosecution under the law. Through its interactions with clients, Naz Foundation became acutely aware of the disproportionate and invidious impact of Section 377 on homosexuals.

Writ Petition in the High Court of Delhi

Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. [Writ Petition (Civil) No. 4755 of 2001]

In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. Notice was issued to Union of India in 2002 and the Attorney General was asked to appear. The Ministry of Home Affairs filed an affidavit opposing the petition in September, 2003. The petition was dismissed by the High Court on 02.09.2004 for lack of cause of action as no prosecution was pending against the petitioner.

The Petitioner filed a review petition (RP 384/2004) in the High Court against the order of dismissal but that too was dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed a Special Leave to Appeal (C.N. 7217-18/2005) in the Supreme Court of India in 2005. On 03.02.2006, the Supreme Court passed an order holding that “the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated”. Remitting the matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in July, 2006.

Thereafter, the final arguments in the matter ensued in November, 2008 before the division bench of Chief Justice of Delhi High Court A.P. Shah and Justice S. Muralidhar.

On 02.07.2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private. Read the judgment here

Appeal Proceedings in the Supreme Court of India

Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust & Ors.[Special Leave Petition (Civil) No. 15436 of 2009]

Following the High Court decision, 15 Special Leave Petitions (SLPs) were filed in the Supreme Court appealing against the said decision on behalf of mostly faith-based and religious groups from all parts of India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. Importantly, the Union of India did not appeal against the judgment and the Supreme Court too did not grant a stay on the operation of the same. In February, 2012, final arguments began in this matter before the division bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay and continued till the end of March, 2012. Mr. Anand Grover, Senior Advocate and Director, Lawyers Collective argued on behalf of Naz Foundation (India) Trust and defended the Delhi High Court decision. The judgment is currently awaited.

Please find the following documents below:

Written Submissions on behalf of Naz Foundation (India) Trust in the Supreme Court

Record of Proceedings in the Supreme Court of India

Allahabad High Court stays suspension of AMU Professor

1 April 2010, Allahabad: In a case that stands to test the promise of equality to homosexuals held out by the Delhi High Court last year, a division bench of the Allahabad High Court stayed the suspension of Prof. Shrinivas Ramchandra Siras, Reader and Chair of the Department of Modern Indian Languages at Aligarh Muslim University (AMU) on grounds of alleged immoral conduct.

64 year old Siras, who is gay and has not concealed his sexual orientation, has been teaching at AMU for 22 years. He is due to be designated Professor since 2006. On 8 February 2010, three persons claiming to be television reporters barged into Siras’s house at the AMU campus and photographed Siras with his male friend. Minutes later, senior AMU staff entered the house and took the camera and photographs. Siras was suspended the next day and directed to vacate his official residence. He was also asked not to leave Aligarh until completion of inquiry by the university. Suspension meant that he lost the position of Chair of the Department of Modern Languages and could not apply for professorship. Two weeks later, AMU sent an [article of charge] alleging that Siras “has committed act of misconduct in as much as he indulged himself into immoral sexual activity and in contravention of basic moral ethics while residing in …, A.M.U. Aligarh thereby undermined pious image of the teacher community and as a whole tarnished the image of the University”.

In his reply, Siras denied the allegations and instead, complained of breach of privacy and unauthorized invasion of his house. Siras also challenged his suspension and eviction from residence before the Allahabad High Court. Siras accused AMU of violating his fundamental rights to privacy, dignity and equality and subjecting him to discrimination on account of his homosexuality.

On 1st April 2010, the case was heard by Justices Sunil Ambwani and K.N Pandey of the Allahabad High Court. Siras’s lawyer Anand Grover, asserted that neither his sexual orientation nor sexual activity in the privacy of his home interfere with his duties as a teacher and therefore, do not constitute misconduct. Further, Grover contended that such private matters are entitled to protection, something which the AMU disregarded while orchestrating the incident of 8 February. Counsel for AMU objected to the petition and stated that the petitioner must exhaust remedies provided in the AMU Act, 1920 before claiming relief through a writ.

Granting an injunction to the petitioner, the Court stayed the suspension, the order to vacate premises and not to leave Aligarh. Importantly, the Court noted that “the right of privacy is a fundamental right, needs to be protected and that unless the conduct of a person, even if he is a teacher is going to affect and has substantial nexus with his employment, it may not be treated as misconduct.” The Court also held that Siras is entitled to apply for Professorship. It directed the respondent – AMU to complete the inquiry expeditiously, in accordance with law. The Court further restrained the media from publishing or commenting on the incident of 8 February.

AMU has three weeks to file its response.

View the Petition HERE

View the Order HERE.

Naz Foundation judgment of the Delhi High Court

Background

Historically, sex work was neither condemned nor criminalized in India. Sex workers were treated with respect and reverence in ancient times, tolerated in the medieval period and medically regulated during colonial rule. Presently, female, male and transgender sex workers are confronted with the punitive regime of the Immoral Traffic (Prevention) Act (ITPA), 1956. The ITPA was enacted following India’s ratification of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949). Previously known as the Suppression of Immoral Traffic in Women and Girls Act (SITA), the Act does not criminalise prostitution per se, but proscribes nearly every activity related to commercial sex.

Offences under ITPA include brothel keeping, living on earnings of sex work, procuring, inducing or detaining for prostitution, with or without consent, prostitution in areas notified by Police and near public places and soliciting. Penalties are higher for crimes involving children (<16 yrs) or minors (< 18 yrs). All offences are cognizable, that is, Police do not require a warrant to arrest or investigate.  ITPA also accords wide powers to search, remove detain and evict sex workers, under the purview of ‘rescue and rehabilitation’. Read More 

Studies have shown that instead of protecting women, ITPA has been used primarily against female sex workers on charges of soliciting. The embargo on brothel keeping has pushed sex workers onto the streets or other dangerous sites. Frequent raids disrupt HIV intervention services by creating fear amongst sex workers, resulting in their dislocation or involuntary detention in ‘protective’ homes. Sex workers are prevented from supporting their families, including children above the age of 18, who risk being arrested for living on sex work money.  There is an urgent need for sex work law reform, a demand that the Unit is raising together with sex workers’ organizations. Read more and view Press Release Here

In 2006, the Government of India proposed to amend the ITPA by introducing the Immoral Traffic (Prevention) Amendment Bill, 2006 in the Lok Sabha. Though purporting to decriminalize soliciting, it sought to criminalize clients of sex workers by making any person who visited or was found in a brothel liable to punishment. Modeled on the Swedish Law on Prohibition of Purchase of Sexual Services, 1999, the ITPA Amendment Bill was vigorously opposed by sex workers. Owing to its contentious provisions, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development and later, Group of Ministers. The Lawyers Collective intervened in the legislative process, submitting critiques and mobilizing community and civil society pressure against further criminalization of sex work. The stringent criticism on legal, political and public health grounds resulted in divergence of opinion within the government. Consequently, the ITPA Amendment Bill lapsed in February, 2009. Read more

Internationally, there are different legislative approaches to sex work. The Lawyers Collective sought to examine these models in terms of their impact on sex workers’ lives as well as HIV transmission in paid sex. Read more

The Lawyers Collective was on the Inter Ministerial Group (IMG) constituted by the Ministry of Women and Child Development in September 2012 to consider amendments to the Immoral Traffic (Prevention) Act, 1956. Read our submissions on the law and comments on the draft IMG Report here. Protecting Sex Workers’s Privacy Sex workers routinely experience harassment and abuse at the hands of media persons, especially during police raids and arrests. Their photographs are flashed in local newspapers and television channels, thereby revealing their identities and subjecting them and their families to stigma and ostracisation. In this regard, the Lawyers Collective, along with a delegation of sex workers, approached the Press Council of India (PCI)and made submissions seeking redress. ____________________________________________________________________________________________________________________
Anti- Rights Practices in HIV Prevention In recent times, HIV prevention interventions targeting sex workers, persons who inject drugs, men having sex with men and transgender persons have taken on coercive tactics, especially in HIV testing and sharing of clients’ personal information. The Lawyers Collective, together with representative community organizations criticized ‘target based testing’ and ‘line listing’ for violating autonomy and privacy and eroding trust in government programmes. Read more

In 2005, the then Department of Women and Child Development (WCD), Ministry of Human Resource Development, Government of India proposed changes to the ITPA. The WCD failed to consult sex workers and AIDS service organisations in the process. The National AIDS Control Organisation (NACO) and Health Ministry too, did not appear to have been consulted. Protesting their exclusion, sex workers from across the country, marched to the Parliament on 8th March 2006 and resisted amendments to the ITPA. The Lawyers Collective HIV/AIDS Unit tracked these legislative developments and opposed the proposed Bill.

Notwithstanding the protests, the Ministry of WCD introduced the Immoral Traffic Prevention Amendment Bill in Parliament on 22nd May 2006. The Bill included several contentious provisions, including a new Section 5C that penalises persons visiting brothels. Given lack of consensus, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development for scrutiny. Intervening in the legislative process, the Lawyers Collective HIV/AIDS Unit submitted both written and oral submissions critiquing the Bill. The Unit had also convened community consultations to update sex workers’ and facilitate collective action against the Bill.

On 23rd November 2006, the Parliamentary Standing Committee presented its findings as the 182nd Report on ITPA Amendment Bill, which the Unit critiqued.  The WCD revised the ITPA Bill, which came up for Cabinet approval on 6th September 2007.

On 5th November 2007, the Lawyers Collective HIV/AIDS Unit organized a National Consultation on Sex Work, HIV and the Law in New Delhi. The meeting brought together leading health and HIV agencies, community based organizations and experts from government, non-government and international development sectors to discuss how the changes proposed to the Immoral Traffic (Prevention) Act, 1956 would affect HIV prevention among sex workers and clients under the National AIDS Control Programme. A statement of concern from the national consultation was released.

Owing to a lack of consensus, the Union Cabinet referred the Immoral Traffic (Prevention) Amendment Bill, 2007 (“revised Bill”) to a Group of Ministers (GOM) for further consideration. The stringent criticism on legal, political and public health grounds resulted in divergence of opinion within the government. Consequently, the ITPA Amendment Bill lapsed in February, 2009.

Poster on Sex Work and Trafficking, 2010