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[675] Rights of HIV positive prisoners in India

Suman Saha, India
- Rights of HIV positive prisoners in India

Respected madam/sir,

I am a 2nd year student at the WB National University of Juridical Sciences, Calcutta. Prof. NR Madhava Menon, founder director of National Law School, Bangalore, is our Vice Chancellor.

I request your valuable assistance in my Constitutional Law project Rights of prisoners and Right to life. Iím exploring violations of constitutional rights of a special class of prisoners, the ones affected by HIV/AIDS.

India, unlike the US and some western countries doesnít seem to have a clear policy in handling HIV/AIDS prisoners. For example, prisoners have right to medical treatment guaranteed both under prison rules and also Art. 21of the Constitution. But to what extent and other specific info is unclear [how much expense the state would bear, access to medicine, the level of care etc.]. Other issues like confidentiality, testing, segregation, confinement, release etc. are also vague.

Paucity of data at least in Calcutta has crippled my project badly. The Net hasnít been really helpful, especially with regards to data on Indian situation. Some of the books widely used by researchers etc. working in this field in the West is unavailable in all the best known libraries of Calcutta USIS, BCL & National Library.

The chapters in the project on prisoners are: - [the headings might undergo a change in name]

- Confidentiality [disclosure, right to know vs. universal precaution of correctional officers, classification/labelling, conflict with non-affected inmate s right to know, health etc.]

- Segregation [includes screening and testing, right of other inmates/correctional officers against exposure to AIDS]

- Medical treatment [right to medicare (including preventive steps like access to condoms, bleach etc.), continuation of the medical treatment the prisoner was under going before he/she was put behind bars level of care, extent to which state is to bear expenses (?)]

- Release on compassionate grounds [includes expedited trial, sentencing, bail, early release]

West Bengal doesnít seem to have any AIDS prisoners. But newspaper reports indicate their presence in Tihar jail and in the prisons of Tamil Nadu, Andhra Pradesh and Mumbai. TN seems to be much better placed in the containment of AIDS and awareness. While NACO has recently come out with recommendations on testing etc. and is evolving policies on the containment on AIDS, not much is known about how we are tackling AIDS in prisons and whether in doing so there are any human rights violations. Any help in this regard would be much appreciated. I m citing US cases [have access till 1996]. Relevant cases from other countries also welcome.

My criminal law project Offences against public health is focusing on sections 268, 269 and 270 of Indian Penal Code vis-ŗ-vis HIV/AIDS transmission. One area, on which I wish to devote considerable ink, is the transmission of virus through blood transfusion due to poor safety standards in the blood banks and/or negligence of doctors. There have been news reports to this effect, but till date I haven t heard the erring blood bank or doc being pulled up. Any Indian cases in this regard?

 Under mentioned are the chapters.

- Code Red: Virus transmission through blood transfusion. Liability of blood banks, hospitals, doctors and even government. Do you have any document [which can be emailed /mailed fast] to show the governments policy/standards on blood safety? Any statistics available as to the numbers. affected through this route? I think the official figure stands at 5.5%. But an AIIMS study reported that of the affected children in Delhi [?], 44% got affected through this route.
- Disclosure: This discusses right to know under 2 headings: -
- Duty of sexual partners to disclose
- Doctor s dilemma [medical confidentiality etc.]
- Prosecution difficulties: In applying any criminal sanction judges would be attempting to determine, beyond reasonable doubt, criminal liability based on complex private communication often consisting of both verbal and non-verbal elements [also without third party witnesses in most cases]. Inputs needed.

Iím citing US [have access till 1996] and Canadian cases. Relevant cases from other countries also welcome.

A quick response would be deeply appreciated.

Thanking in anticipation
Yours faithfully
Suman Saha

I62/B/359, Lake Gardens,
Calcutta 700045
West Bengal, India

Ph: 91-033-4038766, 91-033-4170268
Fax: 91-033-4240330
Email: sumansaha_81@hotmail.com

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