Anand Grover & Tripti Tandon Lawyers Collective HIV/AIDS Unit, India

1. Legal Framework in the region:Findings from a legal & policy review of IDU harm reduction in SAARC Anand Grover & Tripti Tandon Lawyers Collective HIV/AIDS Unit, India ‘Inter-country Consultation on Preventing HIV among IDUs: From Evidence to Action’ 10 –13 April, 2007 Kolkata, India

2. About the Review • CommissionedbyUNODC for “Prevention of Transmission of HIV among Drug Users in SAARC Countries” TD/RAS/2003/H13 • Objectives: (i) Review existing laws & policies on drugs & HIV against risks & responses (ii) Suggest way forward; with rights at the core • Methodology: • Desk research(International drug conventions, National penal & drug statutes, policies & program reviews on drugs & HIV) • Site visits(Bangladesh, India, Maldives, Nepal, Pakistan & Sri Lanka) • Interaction with experts(Officials in drug & HIV depts, Police & Law Officers, NGOs working with IDUs & key pop, UN reps) • Peer review(Country chapters & draft findings at a Regional Tripartite Review, Mar’06) • Time Frame: • Research & Writing 2004-05 • Peer Review 2005-06 • Finalised 2006

3. Gaps & Limitations • Limited access to legal documents i.e statutes/ rules/regulations; no access to judicial decisions ---- Difficult to ascertain trends in application & interpretation of laws, including use of treatment provisions • Limited interaction with legal persons; no interaction with lawyers in the field of drugs & HIV ---- (i)Inability to comment authoritatively on legal system (ii)Indicates minimal involvement of legal fraternity in this sector, LC being exception

4. The Harm Reduction Approach Basis of the report • Harm Reduction limits negative consequences of certain behaviours w/o necessarily eliminating them • Offers unconditional services w/o judgment • Avert immediate harm & pave way out of drug dependence in the long run • HIV epidemic brought strategy to the forefront • Applied to other vulnerable groups like MSM, Sex Workers • Proven efficacy • Components:NSEP, Drug Substitution & Maintenance, IEC, VCTC, Condoms, STI treatment, HIV/AIDS related treatment, Basic medical treatment, Treatment for drug dependence & Outreach Peer Support • Founded on individual’s right to health & the integrationist public health approach • Recognized in international law (ICESCR) & enforceable nationally (Constitutions)

5. Interventions Needle/Syringe exchange Oral Substitution Information on safer sex & drug use Condoms Peer outreach & support Treatment for drug dependence Law Penal provisions Abetment Criminal Conspiracy Common Intention Attempt Drug law provisions Possession Distribution & Supply Use/consumption Allowing premises to be used for offence Scope of Enquiry: Harm Reduction & the Law

6. Findings Transition in substance & mode of use – linked to law enforcement ?? • 1990s saw a switch from heroin chasing to pharmaceutical injecting across cities in Bangladesh, India, Nepal & Pakistan • Transition coincided with legal developments; Eg: In India, supply reduction under the NDPS Act created ‘heroin droughts’, hiking street price. Faced with agonizing withdrawal, heroin users sought treatment that included administration of injectable pharmaceuticals. Continued shortage/availability of poor quality heroin led to injecting; a cost effective way of getting ‘high’. Mixing of IDUs with non-injecting users ‘popularised’ injecting • Studies attribute phenomenon of injecting pharmaceuticals to non-availability of heroin; however links b/w narcotic law enforcement & drug consumption patterns not clearly understood • Yet, trends indicate that punitive controls do not result in cessation of drug use; on the contrary, have led to riskier patterns of use

7. Findings Law, policy & practice – evolution & impact Across the region: • Narcotic laws mirror international drug conventions; penalize inter aliapossession, use/consumption & supply • Despite criminalization of consumption, drug use & dependence seen in every country; IDU & associated HIVreported in four countries • Narcotic laws contain traditional model of treatment, I.e. detoxification emphasizing abstinence • In contrast, programs on IDU & HIV have evolved in response to community needs & risks; bringing drug dependent persons in contact with treatment, health & recovery • HIV policies & to a limited extent, drug policies have come to positively articulate these practices; endorse harm reduction as a public health strategy • Drug substitution or maintenance may be contemplated in the rubric of treatment of the conventions but not so NSEP or NSP

8. Findings I. Needle Syringe Exchange Program (NSEP) • Possession of injection paraphernalia not illegal, except in Sri Lanka • Provision of needle/syringe illegal; construed as ‘abetment’ of drug consumption, punishable in all jurisdictions • Programs existwhere drug users congregate, which, in turn, are sites for furtive drug activity. Eg: In Lahore, the mobile NSEP is parked at a ‘hot spot’ for peddling, exposing intervention to enforcement action • Services using Drop In Centres hit by provisions that make “use of premises for illegal purposes” punishable

9. Findings II. Oral Substitution Treatment (OST) • Historically, the region saw the practice of supplying opium to registered addicts (in absence of treatment for dependence; akin to present day maintenance therapy) • Presently, all countries prohibitpossession, consumption & supply of drugs except when: • Medically indicated (eg: In Bangladesh, certain drugs can be purchased & consumed for medical use) • Administered for detoxification (eg: Psychotropic drugs used for de-addiction at govt run/recognised centres in India) • Necessary to prevent debility or death of user (eg: In Pakistan, law based on Shariat tolerates intoxicants to save life) • Consumed by a category of persons (eg: Pharmacists in India may dispense drugs to a Foreigner carrying prescription) Subject to varying degrees of control & supervision. Egs: • Physicians cannot prescribe narcotics w/o written approval from DNC in Bangladesh • Only government or licensed institutions can supply to patients in Nepal Medical prescription is essential; w/o which possession & use is punishable

10. Findings II. Oral Substitution Treatment (OST) cont… • Methadone & Buprenorphine(most commonly used agents) differentially classified Eg: Methadone is a medical drug in Maldives while Buprenorphine is illegal, but classification under Bangladeshi law is quite the opposite • Treatment options limited; guided not by clinical outcomesbut legal controls Eg: OST in India reliant on locally manufactured licit Buprenorphine. Methadone not approved & therefore not available. Import of ‘prohibited’ drugs subject to complex licensing & approval. Sublingual Buprenorphine import awaiting clearance in Bangladesh & Pakistan. • Provision for substitution open to scrutiny as ‘medical &/or drug treatment’ construed narrowly • Regulatory mechanisms including licensing, prescription & supervision not in place; policy makers expressed fear of divergence • Seen as IDU-HIV prevention measure but not as treatment for opiod dependence Eg: Sri Lanka cites low IDU-HIV prevalence for non-provision of OST; overlooking high burden of drug dependence

11. Findings III. Treatment for drug dependence • Provided in all country laws except Sri Lanka where offered in prison;outside of law • Inconsistent approach evident in some countries; Eg: Hadd order in Pakistan ordains punishment for users, while CNSA mandates registration & treatment • Available to ‘addicts’ & not first time users • Routed through penal system e.g: In India, treatment is offered in lieu of prosecution/conviction & not at the first instance • Conditions attached are unrealistic; failure to comply results in enhanced penalties. E.g: In Maldives, addicts do not enroll in rehabilitation, as unsuccessful treatment results in sentencing

12. Findings IV. Condoms • Drug users engaging in unprotected sex with regular & paid partners • Though accepted as a prevention strategy, provision & use conditioned by social/ legal factors • Supply in prisons not permitted on a/c of anti-sodomy laws V. Information on drug/injection safety • Identified by outreach teams as necessary to influence drug practices & avoid overdose • Materials describing ‘how to inject safely’ construed as aiding/instigating drug use; Eg: Maldives specifically prohibits publications, drawings, posters etc. that generate interest in drugs

13. Potential ways forward…. To harmonise harm reduction with law, National Governments may: • Include harm reduction measures within the rubric of medical treatment Eg: Govts can exercise rule making powers to notify OST as medical treatment &/or treatment for drug dependence • Expand scope of Good faith exception Eg: Legislature can extend statutory immunity to service providers i.e physicians, outreach workers/NGO staff acting bona fide & in good faith • Safeguard interventions by Non-obstante clause Eg: Legislature can enact overriding clause that protects officially endorsed programs that prevent individual harm & promote public health from criminal & civil liability • Conduit treatment outside the criminal justice system Eg: Legislature can relax rules for diversion; institute provisions that allow users to seek treatment at the first instance rather than during or post trial

14. Protecting rights of drug users • In India, street users are ’soft targets’ for Police. Eg in Mumbai enforcement action against users has witnessed an increasing trend: Year No. of users arrested 2005 172 2006 1002 2007(Jan-Mar) 921 • In prison, drug users experience precarious health conditions.10 drug users reportedly died in Maharashtra jails b/w Jan & Mar this year alone. Deaths attributable to: • inappropriate management of withdrawal • lack of treatment for drug dependence • Inadequate care & follow up • HIV related illness • Since 2005, LC has been providing legal aid to drug users in Arthur Road Jail in association with Sankalp (Rehabilitation) Trust. Till date, 136 clients accessed legal services. • Like in disability law, it is not necessary to reform the drug user/addict but make the environment enabling and reform the law

15. Penalty & Prison – who benefits? Among street users, arrest & imprisonment is a pattern: • Arbitrarily picked upeven when not using or in possession of drugs • Placed in lock-up; investigation influenced with to ‘prove’ consumption • Charged u/s 27 NDPS Act for unlawful consumption punishable with imprisonment extending to 6months or 1yr • Not released despite bail for terms, sometimes, longer than the sentence if convitcted; inability to produce surety/personal bond or pay bail amount • During trial, most plead guilty: • No legal representation • Trial period longer than period of sentence • Have been in jail for period more than sentence • Incarcerated; Magistrates do not invoke Sec 39 to divert convicted addicts to detoxification & treatment • Back on streets w/o social or medical assistance, only to be re-arrested Vulnerability  arrest  plead guilty since no legal aid  imprisonment  increased vulnerability  release  arrest again  plead guilty again REVOLVING DOOR with ‘no benefit’ to user or community