The right to live and love: HIV and the Law

The Global Commission on HIV and the Law has launched its much awaited report “Risks, Rights & Health”. JVR Prasada Rao, one of the trustees of the India HIV/AIDS Alliance and the incoming UN Secretary-General Special Envoy for HIV/AIDS in the Asia-Pacific region, served as one of the Commissioners. The report is a useful resource for many countries, including India, and will help strengthen the on-going process of progressive law reform and improved enforcement of existing laws.

Although India’s national AIDS control programme supports an approach that ensures the protection of rights as a key element in successfully addressing HIV/AIDS, it often does not have the sanction of law in its work with high-risk but criminalised populations like sex workers and people who use drugs. HIV interventions for men who have sex with men (MSM) and transgender populations in India have benefitted from the 2009 Delhi High Court ruling decriminalising homosexuality, even as we await a final ruling from the Indian Supreme Court. While there has been some progress, Alliance India’s work with each of these groups as well as with people living with HIV/AIDS (PLHIV) in states across the country often takes place in the face of significant social stigma that is reinforced by an ambiguous and often punitive legal environment.

To build and sustain our momentum against the epidemic, the Commission’s report recommends decriminalizing private and consensual adult sexual behaviours, including same-sex sexual acts and voluntary sex work. It also advises governments to reform how they address drug use, including support for harm reduction programming and voluntary, evidence-based treatment for drug dependence. It’s encouraging to see these goals articulated in the report along with the recommendation to develop a legal regime for pharmaceutical patents to make ART affordable and accessible for PLHIV.  Laws are critical in holding states accountable in their responsibility to create conditions conducive to the enjoyment and exercise of fundamental rights. To that end, the Commission’s report points us in the right direction.

It is, however, not enough to think of the HIV and the Law report in simply a functional way, as good legal practice; rather it can serve as a mechanism to achieve social equity, justice, and health for all. The barriers created by inequality and discrimination limit access and undermine wellbeing. Progress requires efforts both to address discrimination itself and increase access as well as to promote legal and structural transformation.

Formulating policies and legal strategies to improve our response to HIV & AIDS demands a rights-based approach that will foster appropriate and ethical solutions to the legal and often political dilemmas raised by the epidemic while maintaining longer-term goals to transform systems of power to be more equitable. “Risks, Rights & Health” provides a road map and makes a compelling case that our journey will not be completed if we ignore the legal contexts that continue to fuel the epidemic.

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The author, Shaleen Rakesh, is  Director: Technical Support, India HIV/AIDS Alliance

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