The Forgotten Epidemic: HIV/AIDS in Prisons

The Forgotten Epidemic: HIV/AIDS in Prisons Bridging session: Incarcerated with HIV Author: Shehzad Mansuri Co-Author: Veena Johari Lawyers Collective HIV/AIDS Unit – India 16 August 2006

Asian Context

Vulnerability to HIV in the Developing world • No provision of clean needles and condoms – State denial that these activities happen in jails (e.g. Tihar Jail condom distribution programme was stopped) • (Sexual)Violence in prisons (male and female prisons) • Inadequate nutrition and health facilities (TB infection is a major concern) (e.g. In Arthur Road Jail there is an HIV barrack which houses all HIV-positive prisoners with various opportunistic infections, including TB, making others also vulnerable to TB infection. There is one Chief Medical Officer attending to about 300 prisoners) • No proper hygiene or sanitation (e.g. Arthur Road Jail - in some barracks the prisoners are made to stand in a line and bathe with a pipe. One soap is distributed. Latrines are few and not clean)

Vulnerability to HIV in the Developing world • Overcrowding in prisons (e.g. Tihar Prisons capacity is 6250. Current population is 14248 • Long trial period – No free legal aid (e.g. Arthur Road Prison, Mumbai, has about 134 under-trials of which 26 have been in jail for the last 10 years • Lack of guards to escort under trials to Court and sick prisoners to Hospitals outside the prison • No access to information, education or knowledge on HIV prevention methods

Existing laws exacerbate the problem… Drug use, including injecting drug use, and sex between men is common in prisons. However, due to existing laws, providing safe injecting and sex practice tools cannot be made available in jails: • The Narcotics and Psychotropic Substances Act (NDPS) prohibits & penalizes possession, use and consumption of drugs • Section 377 of the Indian Penal Code penalizes homosexual sex – India’s anti-sodomy law

Right to health of prisoners • Right of a prisoner to protect himself from HIV infection • Right of an HIV positive prisoner to treatment and avoid infecting other prisoners • Right of a prisoner to continue treatment after release What are the obligations of the State to provide treatment to persons in these situations?

Case of an HIV positive undertrial LX v Union of India and Ors • While in Tihar Jail Delhi as under-trial he was found to be HIV-positive • April 2000: the jail authorities put him on ARV regimen • May 2000: he was released on bail. Informed that once released he would not be provided with ARVs • LX approached the Delhi High Court • January 2001: Interim order directing the Jail Hospital to continue providing treatment • January 2002: Interim order directing the All India Institute of Medical Sciences to provide him ARVs • June 2004: Final order directing the AIIMS to continue LX’s treatment as per the ARV combination he required

Case of an HIV positive convict PNM v State of Maharashtra • PNM was HIV-positive and on ARVs • December 2005: PNM was convicted under Sections 8 & 22 (c) of the NDPS Act and sentenced to 10 years rigorous imprisonment • In prison ARVs were not provided to him by the jail authorities • In an appeal filed in the High Court, praying for urgent orders from the Court to direct the State to provide him ARV treatment • However, when PNM became seriously ill, his treatment was restarted after a gap of two months

Need for legal aid… Laws such as the NDPS, Section 377 IPC and the Immoral Traffic Prevention Act: • make certain actions cognizable offences In 1985 after NDPS was enacted prison population went up from 2500 to 4000 • the poorest section of society, people living on streets and those who ‘look dirty’ are easy targets for police to arrest to fill in their diaries • no legal aid for them, they mostly plead guilty • Vicious cycle: vulnerability  arrest  plead guilty since no legal aid  imprisonment  increased vulnerability  release  arrest again  plead guilty again…. Legal aid is an important link to break this vicious cycle of repeated arrests and therefore vulnerability

The Civil Rights Initiative (CRI) – Arthur Road Jail Project Background: • Project started in January 2005 in partnership and on request from the Sankalp Rehabilitation Trust • Free Legal Aid to Drug Users - part of the larger rehabilitation programme run by Sankalp • Sankalp is given a separate barrack with drug users who opt to undergo their rehabilitation programme. Sankalp provides users with counseling, medicines, treatment etc. • To avoid accused persons opting to undergo rehabilitation only because of free legal aid, only those indicated by the counselors of Sankalp are taken as clients by the CRI

Some interesting facts…. • Most of them are living on the streets in extremely poor conditionsearning petty amounts on daily basis through odd jobs • Most of them are not first time offenders, booked under section 27, NDPS Act (i.e. for consumption). • Most of them were arbitrarily picked up by the police, while sleeping or rag picking (e.g. one client taken to the police station was told to clean the police station for remuneration, after which he was arrested) • Clients have reported that the police plant drugs on their person or force them to consume drugs at the police station and then take them for a medical check up • None of the 96 clients have reported being informed about their rights on arrest by the police

Impediments/issues • Pleading guilty • 8 out of about 28 whose cases were taken up in the Courts pleaded guilty • Police force them to plead guilty • Long trial periods tempt them to plead guilty • Pleading guilty stamps them as drug usersleading to the vicious cycle of repeated arrests

Impediments/issues • Clients unable to produce surety in court • Personal bonds in most cases rejected for lack of any identity documents • Most of them cannot pay bail amount even if it is granted (e.g. J got bail for Rs. 500 ($10) but cannot arrange this sum and is still in jail as an under-trial)

Recommendations • Address overcrowding, better nutrition, hygiene and health facilities • Information, education and access to clean needles and condoms in prisons • HIV-positive prisoners to be provided with treatment • Address long trial period – Implement the recent amendment in the Code of Criminal Procedure • Free and effective legal aid to all under-trials • Law reform – Prisons Act, NDPS and 377 • Systematic data collection from prisons is essential to identify, understand and resolve problems • Sensitization of police and jail staff

The Forgotten Epidemic: HIV/AIDS in Prisons