WHETHER HIV TEST FOR ALL PRISONERS SHOULD BE ALLOWED?

It is humbly submitted before the Hon’ble Supreme Court of Zendia that “Prisoners are sent to
prison as punishment, and not for punishment”. This often repeated statement by British prison
commissioner Paterson implies that the loss of an individual’s right to liberty is enforced by
containment in a closed environment. This keeping of the individual in the custody of the State,
should not, however, have deleterious effects on the health of those persons.

The counsel would be dealing particularly with the 4 concerns in this issue

1. HIV as life threating disease

2. Obligation of state to maintain health (WH0)
3. Statics done by NCRB
4. International Perspective

Now, talking about 1st concern HIV is dangerous becoz it attacks the immune system,
weakening the body’s ability to fight of infection and disease as it leads to progression to
AIDS, opportunistic infection and causes a huge risk of cancer and neurological
complication. When such infection or life threating disease happens the illness is called
AIDS. Once a person has the virus it stay inside the body for life.

How HIV is likely to Transmit

1. Through having vaginal or anal sex with someone who has HIV without using
contaceptions the right way evertime or taking medicine to prevent or treat HIV
2. Even sharing injection drug, equipments such as needeles, syrenges or other drug
injection equipment which is quite often in prison
3. Furthermore there are some grooming activities in prison that can also lead to HIV
transmition such as Razor use for shaving and blood can carry HIV

Hence it is noted that earl detection, timely medical intervention and adherence to anti
retro viral therapy can significantly improve outcome for individual with HIV, allowing
them to lead relatively healthy life.

“Mandatory ” and compulsory testing

Those advocating compulsory testing (and, sometimes, segregation) of all prisoners have
said that such testing would:

•Allow prison systems to know exactly how many prisoners are living with HIV;
•Provide those living with HIV with necessary care, support and treatment;
•Protect staff and fellow prisoners from contracting HIV in prisons;
•Protect third parties, such as partners and other persons with whom a prisoner is likely to
have contact after release from prison, from contracting HIV.

Now talking 2nd concern the counsel would like to interconnect this issue with
Article-21 which protect health
In the landmark case of Parmanand Katara Vs Union of India78, the Supreme Court held
that the state has a duty to maintain life regardless of whether the individual is innocent
or guilty of a crime, setting a strong precedent for prisoners’ rights in Zendia, particularly
the fundamental right to health guaranteed by Article 21 of the Constitution79 .
3.1.2. Furthermore, in 2016, the Supreme Court issued another major ruling on the legal
and constitutional rights of Zendian inmates, particularly those held in re-
inhumane conditions at 1382 prisons.
Court also ordered Ministry of Home Affairs for developing New Model Prison
Manual.
In this regard, in March 2020 it ordered all state and jail authorities to immediate
steps to ensure that proper medical care is available.
So there should be regular checkup as being human they also have right to health.

In the case of Charles Sobraj vs. The Supt88 ,The court said that the
fundamental rights of prisoners cannot be taken away even in imprisonment.
Furthermore, in Bandhua Mukti Morcha Vs Union of India90, the Supreme
Court has held that the Right to Life includes the right to live with dignity. The
Supreme Court held that the right to health includes the health care and right to
determinants of health such as food security, water supply, housing and sanitation
etc.

Now the counsel would like to discuss about WHO guidelines on HIV for
prisoners
Where no. of HIV person in prison are high, there should be HIV plans for them b
jail authorities as it is stated by WHO that every person in prison have right to
receive health care + preventive services equivalent to that available in
community without any discrimination.

Hence, from the above arguments and ruling cited it is established that it is the
duty of state to maintain the life of individual even in the prison.

Now moving towards 3rd concern we have Prisoner statics done by NCRB in
2019, the number of prisoners in India was 1,350. The maximum number of
prisoners that can be accommodated is 4,03,739, but there were 4,78,600
prisoners at the time of records,
this shows that prisoners are overcrowded like cattle, out of which 2/3rd prisoners
are under trial. So the counsel question herself that how the authority in this
situation will assure better conditions for prisoners and nowadays situation is
getting worse so how the will cover it up.

Now moving towards further with the last concern the counsel would like to
introduce some international perspective regarding the same
All human beings, and this obviously includes prisoners, have certain unalienable
rights, which are acknowledged by internationally recognized instruments. In
1948, the United Nations General Assembly adopted the Universal Declaration of
Human Rights101. Later, two covenants were adopted, the International Covenant
on Civil and Political Rights (ICCPR), and the International Covenant on
Economic, Social and Cultural Rights (ICESCR). These state that prisoners have
rights, even when they are deprived of liberty in custody.

Some International organizations released a joint statement on coronavirus in

lockup such as WHO, UNODC, UNAIDS, OHCHR they all said to draw urgent
attention from all political leaders. UNHRC said that due to failure of taking any
step to the people who all are suffering from coronavirus in prison is the violation
of Article 6 103and Article 9104 of ICCPR, 1996105 Zendia is a member of
ICCPR has to take sufficient gauges to curb the spread of coronavirus in jail.

Now the counsel would like to conclude that from the said arguments it is
paramount for prison administration to have a thorough knowledge of how HIV is
likely to be transmitted in a given prison. If other problems are there with regard
to this better surveillance and active interventions to protect targeted prisoners
must be enforced.
There must be separate and other arrangement for proper treatment for HIV+
inmates.
The counsel for the respondent humbly submits before the Hon’ble Supreme Court of Zendia
that HIV testing for all prisoners shall not be allowed. Implementing mandatory HIV testing
raises significant ethical and human rights concerns. While recognizing the importance of public
health, they emphasize the need to uphold the fundamental rights of individuals, even those in
custody. Mandating HIV tests without informed consent is seen as a violation of personal
autonomy and privacy.

The council will be dealing with mainly 4 concerns:-

1. Violation of personal autonomy and privacy along with HIV stigma and WHO
Guidelines
2. Some figures where improvement in HIV decline rate is seen
3. International perspective

Now the counsel would like to start with the 1st concern

The violation of personal autonomy often arises from the stigma, discrimination, and legal or
social consequences associated with HIV infection. Personal autonomy refers to an individual's
right to make decisions about their own life, body, and health without interference or coercion
from others. HIV stigma is negative attitudes and beliefs about people with HIV. It is the
prejudice that comes with labeling an individual as part of a group that is believed to be socially
unacceptable.

Here are ways in which HIV-related stigma and discrimination can impact personal autonomy:

1. Disclosure and Privacy Issues: People living with HIV may face pressure to disclose
their HIV status due to societal expectations, stigma, or discrimination. This can infringe
on their right to privacy and the ability to control who has access to their personal health
information.
2. Discrimination and Social Isolation: Stigmatizing attitudes towards HIV may lead to
discrimination and social isolation. Individuals may be ostracized or treated unfairly in
various aspects of life, such as employment, education, and healthcare, limiting their
choices and opportunities.
3. Impact on Relationships: Fear of stigma and discrimination can influence decisions
around forming and maintaining relationships. Individuals may face difficulties in
disclosing their HIV status to partners, leading to challenges in building and sustaining
intimate relationships.

WHO Prison Guidelines says following:

1. Compulsory testing of prisoners for HIV is unethical and ineffective and

should be prohibited.
 2. Voluntary testing for HIV infection should be available in prisons when
available in the community, together with adequate pre- and post-test
counselling. Voluntary testing should only be carried out with the informed
consent of the prisoner. Support should be available when prisoners are
notified of test results and in the period following.

Hence, it is established from the above arguments that HIV testing in prison should not be
compulsory and it should be done by informed consent or voluntary.

The counsel would like to move further with 2 nd concern which talks about decline rate of
HIV positive persons.

Annual New Infection (ANI) are estimated at 62.97 thousand in 2021 in Zendia. There is an
estimated 46.3% decline in ANI at national level from 2010-2021. A declining trend is noted in
most States.

Top 3 States with most rapid decline are Himachal Pradesh turn down with 73% from 2010-
2021), Tamil Nadu turndown with 72% and Telangana get smaller with nearly 71% .

A decline of 76.5% in ARD has been estimated at national level from 2010-21. The declining
trend is noted in all States/UTs excluding Puducherry, Arunachal Pradesh, Meghalaya, and
Tripura. The highest decline in ARD is estimated in Chandigarh, Telangana, and West Bengal.

Hence, from the above arguments it is established that globally, progress has been made in
implementing HIV programmes in the community;

Now moving further with the last concern the consel would ike to connect human right and
prisoners with international perspective.

In prisons in Europe, including Eastern Europe compulsory testing has been abandoned in nearly
all countries In some cases, according to the official policy HIV testing is voluntary, but
prisoners are subtly coerced into being tested—including by being told that, unless they submit
to HIV testing, they will be treated as if they were HIV-positive and denied certain programs and
privileges.

In Australia, HIV testing of prisoners was authorized in all jurisdictions, either specifically or
through general provisions, but New South Wales, for example, repealed the regulation requiring
this in 1995 and has since operated an induction programme for new prisoners that offers
voluntary HIV and hepatitis testing.
The International Guidelines on HIV/AIDS and Human Rights (OHCHR/UNAIDS, 2006)
recommend that prison authorities provide prisoners with “access to voluntary testing and
counselling” and “prohibit mandatory testing”.

WHO and UNAIDS have consistently opposed compulsory HIV testing, stating that it is not
effective for public health purposes, nor ethical (WHO, 2003; WHO/UNAIDS, 2007), and that
“voluntary testing is more likely to result in behaviour change to avoid transmitting HIV to other
individuals” (UNAIDS & WHO, 2004).

In a few prison systems, mainly in the United States, HIV testing is considered a standard part of
a medical examination on admission, conviction, or prior to release, and undertaken unless
prisoners explicitly refuse to be tested (“opt out” of the test)

We advocate that awareness programmes that are run by the concern authorities and they are
doing their job in various other regions as well. They are fulfilling their obligations by providing
campaigns and other facilities. Such NACP National AIDS control programme etc.

Hence, it is well established from the above arguments that seeking HIV-Testing should not be
allowed as it is not a matter of right and cannot be implemented at the will of the individual. It is
a matter of policy that remains in the hands of the legislature to amend the present needs and
frame according to the requirements. In conclusion, the argument against implementing
mandatory HIV testing for all prisoners underscores the importance of upholding individual
rights and preserving human dignity, even within the confines of the criminal justice system.
Coercive testing measures are viewed as ethically problematic, running counter to the principles
of informed consent, personal autonomy, and privacy.