Homosexuality and the Indian Physician

Just think from a doctor’s point of view: Suppose an HIV+ patient comes to him. The doctor is caught between the Professional Ethics of Secrecy, i.e. not to disclose his patient’s status to anybody but is also legally bounded to inform the police if his patient contacted HIV through homosexual practices. After receiving the information from doctor about homosexuality even with consent (pre-Delhi High Court Judgment) the police would register a criminal case under Section 377 IPC (Non-Bailable Offence) and arrest both the patient and his partner. So, in this scenario, the patient, instead of going to hospital, may land in prison if everyone involved perform their duties honestly.

This practical difficulty led to the decision of Hon’ble Delhi High Court to read down only consenting adults from the purview of Sec. 377, IPC, so that neither the doctor nor society faces any problem from spread of HIV through innocent and unknown HIV status by sexual contact whether homosexual and heterosexual and their would be kids.

Article 12 of the International Covenant on Economic, Social and Cultural Rights makes it obligatory on the "State to fulfil everyone’s right to the highest attainable standard of health." The Supreme Court of India interpreting Article 21 of the Indian Constitution in the light of Article 12 of the Covenant held that the right to health inhered in the fundamental right to life under Article 21. [Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37] [Page 50, Point 61]

It is submitted by NACO that Section 377 acts as a serious impediment to successful public health interventions. According to NACO, those in the High Risk Group are mostly reluctant to reveal same-sex behaviour due to fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them. The situation is aggravated by the strong tendencies created within the community who deny MSM behaviour itself. [Point 62]

Since many MSM are married or have sex with women, their female sexual partners are consequently also at risk for HIV/infection. The NACO views it imperative that the MSM and gay community have the ability to be safely visible through which HIV/AIDS prevention may be successfully conducted. Clearly, the main impediment is that the sexual practices of the MSM and gay community are hidden because they are subject to criminal sanction.

The affidavit of NACO categorically states that Section 377 IPC pushes gays and MSM underground, leaves them vulnerable to police harassment and renders them unable to access HIV/AIDS prevention material and treatment.

General Comment No.14 (2000) [E/C.12/2000/4; 11 August 2000] on Article 12 of the International Covenant on Economic, Social and Cultural Rights states that right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. [Page 51, Point 63]

The freedoms include the right to control one’s health and body, including sexual reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health, protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The 2001 UN General Assembly Special Session (UNGASS) Declaration of Commitment on HIV/AIDS, held on 25-27 June, 2001, adopted by all UN Member States emphasized the importance of "addressing the needs of those at the greatest risk of, and most vulnerable to, new infection as indicated by such factors as … sexual practices."

In 2005, 22 governments from different regions along with representatives of non-governmental organisations and people living with HIV as members of the UNAIDS governing board, called for the development of programmes targeted at key affected groups and populations, including men who have sex with men, describing this as "one of the essential policy actions for HIV prevention". [UNAIDS (2005) Intensifying HIV Prevention, Geneva, Joint United Nations Programme on HIV/AIDS].

Since then, country and regional consultations have confirmed that the stigma, discrimination and criminalisation faced by men who have sex with men are major barriers to the movement for universal access to HIV prevention, treatment, care and support. [United Nations A/60/737 Assessment by UNAIDS to the General Assembly on Scaling up HIV Prevention, Treatment, Care and Support, March 24, 2006].

At the 2006 High Level Meeting on AIDS, the Member States and civil society members reiterated the commitment underlining the need for "full and active participation of vulnerable groups … and to eliminate all forms of discrimination against them …. while respecting their privacy and confidentiality". [Paragraph 64 of 2001 Declaration of Commitment on HIV/AIDS and Paragraphs 20 and 29 of the 2006 Political Declaration on HIV/AIDS]. In this context UNAIDS, inter alia, recommended the following:

"Respect, protect and fulfill the rights of men who have sex with men and address stigma and discrimination in society and in the workplace by amending laws prohibiting sexual acts between consenting adults in private; enforcing anti-discrimination; providing legal aid services, and promoting campaigns that address homophobia." [HIV and Sex between Men: UNAIDS] [Page 53]

A report of the National Conference on Human Rights and HIV/AIDS, held on 24-25 November, 2000 in New Delhi and organised by the National Human Rights Commission, in collaboration with other organisations, concludes:

"Therefore, to more successfully prevent and manage HIV/AIDS among these marginalized populations, (intravenous drug users and MSA), a revision of the existing laws and processes is strongly recommended…….. In terms of preventing HIV/AIDS among men who have sex with men, it would be most useful to make section 377 IPC obsolete, and instead review the legislation and endeavour to define more clearly the age of sexual consent. [Point 65]

In nutshell, the protection of Human Rights and the empowerment of marginalized populations would, in the context of HIV/AIDS prevention, create an environment that would enable India to reach the most vulnerable with HIV/AIDS messages and supporting mechanisms." [Report of the National Conference on Human Rights and HIV/AIDS: http://nhrc.nic.in/Publications/report_hivaids.htm]

The "Delhi Declaration of Collaboration, 2006" issued pursuant to International Consultation on Male Sexual Health and HIV, co-hosted by the Government of India, UNAIDS and Civil Society Organisations, recognised that: "… the stigma, discrimination and criminalisation faced by men who have sex with men, gay men and transgender people are major barriers to universal access to HIV prevention and treatment" [Delhi Declaration of Collaboration: 26th September, 2006]. [Page 54, Point 66]

On June 30, 2008, the Prime Minister Mr Manmohan Singh in a speech delivered at the release of the Report of the Commission on AIDS in Asia stated "the fact that many of the vulnerable social groups, be they sex workers or homosexuals or drug users, face great social prejudice has made the task of identifying AIDS victims and treating them very difficult" [Prime Minister's address on the release of the Report of the Commission on AIDS in Asia: June 30, 2006].

On August 08, 2008, the Union Minister of Health and Family Welfare, Dr.Ambumani Ramadoss speaking at the 17th International Conference on Aids in Mexico City is reported to have stated "….structural discrimination against those who are vulnerable to HIV such as sex workers and MSM must be removed if our prevention, care and treatment programmes are to succeed". He said, "Section 377 of the Indian Penal Code, which criminalises men who have sex with men, must go" [Reported in Indian Express: August 9, 2006 http://www.indianexpress.com/story/346649.html].

Union Minister of Health is also reported to have stated at the International HIV/AIDS Conference in Toronto, 2006 that Section 377 IPC was to be amended as part of the government’s measures to prevent HIV/AIDS.[The Hindu: August 16, 2006]

 

Experiences of NGOs

On the other, the extensively documented instances of NGOs working in the field of HIV/AIDS prevention and health care being targeted and their staff arrested under Section 377 IPC amply demonstrate the impact of criminalization of homosexual conduct.

Common fear that Section 377 IPC helps in putting a brake in the spread of AIDS and if consensual same-sex acts between adults were to be de-criminalised, it would erode the effect of public health services by fostering the spread of AIDS is completely unfounded since it is based on incorrect and wrong notions.

Sexual transmission is only one of the several factors for the spread of HIV and the disease spreads through both homosexual as well as heterosexual conduct. There is no scientific study or research work by any recognised scientific or medical body, or for that matter any other material, to show any causal connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS. The argument, in fact, runs counter to the policy followed by the Ministry of Health and Family Welfare in combating the spread of this disease. [Point 71]

 

Scenario in Australia

A similar line of argument advanced in the case of Toonen v. State of Australia (supra) before Human Rights Committee was rejected with the following observations: [Page 59, Point 73]

"As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Government of Australia observes that statutes criminalizing homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection". Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus."[Para 8.5]

Please understand the issue of homosexuality from medical point of view rather than emotional or unscientific religious point of view.

 

Source:

I must thank the dynamic Dr. Mukesh for posting this on his email discussion group: Quality in Medical Education. If you want to be a pasrt of deep discussions like this (and more), do not hesitate to join it up!

 

I have removed the last paragraph because I did not agree with the observations made therein, mainly due to the presence of some contradictory, homophobic statements. My apologies, Dr. Mukesh.