ABSTRACT

Health is a fundamental human right, regardless of what state the citizen is , whether the citizen is incarcerated or not. The importance of the right to health has been time and again emphasised by various international organisations and also been recognised through various judicial pronouncements by our Hon’ble Court.The health of prisoners is a complex issue that has been the subject of much debate. In some cases, prisoners may not receive adequate health care due to a lack of resources or funding. In other cases, the healthcare that is provided may be substandard or inadequate. This can lead to a number of problems, including chronic illness, delayed treatment, and even death.It is important to note that not all prisoners receive inadequate healthcare. There are many facilities that provide high-quality care to their inmates. However, the issue of inadequate healthcare in prisons is a serious one that needs to be addressed.It is important to remember that prisoners are human beings who deserve to be treated with dignity and respect. This includes access to quality healthcare which has also been emphasised by our Hon’ble Apex Court. When addressing the health concerns of prisoners, it becomes important to assess whether mandatory HIV testing for prisoners is a viable option and to assess its constitutional validity.Balancing public interest with individual rights in implementing mandatory HIV testing for prisoners requires careful consideration of ethical, legal, and epidemiological factors.Hence, This paper will delve into the intricate complexities surrounding mandatory HIV testing in prisons. It will scrutinise privacy concerns, dissect the delicate balance between public interest and individual rights, and acknowledge the eventual return of prisoners to society with potential health burdens. Additionally, the analysis will incorporate relevant international obligations to paint a comprehensive picture of this multifaceted issue.

KEYWORDS: Human right, right to privacy, prisoner’s rights, international obligation, ethical, legal and epidemiological factors.

INTRODUCTION

A fundamental and inalienable human right, the right to health is protected by the Universal Declaration of Human Rights (UDHR) and other international agreements. States have a duty to guarantee their citizens’ access to necessary healthcare services. It may be illegal to break this duty in order to uphold international obligations, domestic law’s Directive Principles of State Policy (DPSP), and fundamental rights.While it is been very clear that right to health is an inherent part of right to life that is guaranteed under Article 21 of the Indian Constitution

through various judgement like Paschim Banga Khet Mazoor Samity v. State of West Bengal wherein the Hon’ble Court held that that it is the responsibility of the Government to provide adequate medical aid to every person and to strive for the welfare of the public at

large.

Prisoners who are very much part of the society deserve to enjoy these rights just as ordinary citizens do.In the case of the State of A.P. Vs. Challa Ramkrishna Reddy & Ors., the Hon’ble Apex Court held that a prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.The “golden triangle” of Articles 14, 19, and 21 of the Indian Constitution enshrines fundamental rights for all citizens, including prisoners.³These rights, particularly the right to life and equality under Articles 21 and 14, necessitate extending essential healthcare services to incarcerated individuals. Therefore, providing universal HIV testing and appropriate care pathways for infected inmates aligns with the constitutional obligation to respect and protect these fundamental rights.However, considering the sensitivity and the social stigma that is associated with the disease it becomes very vital to balance the right to privacy and bodily autonomy of the prisoners too. This research paper aims to assess the various dimensions related to the issue and to understand how this issue has been tackled in various countries.

RESEARCH METHODOLOGY

This paper adopts a descriptive approach to critically analyse the tensions between individual rights of prisoners and public health considerations regarding mandatory HIV testing in prisons. The analysis leverages secondary sources, including research articles, legal journals, and authoritative reports, to provide a comprehensive overview of this complex issue. By drawing upon established scholarly work, the paper aims to contribute to a nuanced understanding of the associated ethical, legal, and human rights dimensions, while acknowledging the potential impact on international obligations.

REVIEW OF LITERATURE

Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. It is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty was intended to achieve.Furthermore, privacy is a constitutionally protected right that arises principally from Article 21 of the Constitution’s guarantee of life and personal liberty. It is also the fundamental basis of human dignity. Health-related information is extremely important and should be carefully protected. Not only does it contain health and/or disability information, but it also contains highly sensitive information concerning possible medical treatments. Medical ethics and oaths require doctors to protect patient privacy as disclosing information could endanger other people’s lives. In accordance with the doctors’ oath, the suggested procedure would breach the inmates’ privacy if it didn’t have appropriate data security and confidentiality policies in place.

In Whalen v. Roe, a unanimous Court identified two fundamental interests encompassed within the right of privacy: “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions” . Since Whalen, many courts have recognized that individuals retain a privacy interest in the nondisclosure of personal matters, and several courts like in the case of Doe v. Borough and Schaill ex rel. Kross v. Tippecanoe County School Corporation have held that the right of privacy includes protection against the unauthorised disclosure of one’s medical condition or records.

Justice Subba Rao held that right to privacy is an essential ingredient of personal liberty and that the right to personal liberty is “a right of an individual to be free from restrictions or encroachments on his person, whether those restricts or encroachments are directly imposed or indirectly brought about by calculated measures. Such a right may not be interfered with under the guise of protecting the public interest by legislative action which is arbitrary.” Arbitrariness refers to such an action done at whim or fancy and not on the basis of determined principles. Handling such sensitive information without any calculated and informed plan could also deteriorate the mental health of the prisoners violating their right to life and right to live with dignity.Talking about the sensitivity of the information , Chief Judge Crabb declared in the case of Woods v. White,

“Given the most publicised aspect of the AIDS disease, namely that it is related more closely than most diseases to sexual activity and intravenous drug use, it is difficult to argue that information about this disease is not information of the most personal kind, or that an individual would not have an interest in protecting against the dissemination of such information.” In the case of Senior Divisional Engineer, Southern Railway, Palakkad and others v. V. Padmavathy , the tribunal recognised the social stigma and fear attached with an HIV patient. It could cause immense damage to their mental health.”Inhuman” treatment is regarded by the European Commission of Human Rights as being such treatment that deliberately causes severe suffering, mental or physical.¹¹Thus, it is in violation of Article 3 of the European Convention on Human Rights and Fundamental Freedoms that states “No one shall be subjected to torture or degrading treatment or punishment“.

INEFFICIENCY OF MANDATORY HIV TESTING

Most public health officials and disease specialists see policies of compulsory testing and segregation as counterproductive Attempts to identify and segregate known HIV-positive prisoners to “contain” the epidemic will miss seroconverting persons who are in the “window” period (i.e., the period after infection and before antibodies can be detected by current testing methods; this period is also the period when people are most infectious). Correctional-officer unions in several countries have lobbied for disclosure of the HIV status of prisoners, but ignoring universal precautions when interacting with prisoners who are presumed to be HIV-negative may increase the risk of occupational exposure to hepatitis B and C as well as primary HIV infection by providing a false sense of security. HIV is not transmissible via casual contact and therefore compulsory testing and segregation of people living with HIV in prisons is not necessary for public health purposes. Instead of testing without consent—which is unethical and potentially infringes the right to security of the person, the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment, and the right to privacy prisoners can be provided with the means necessary to act responsibly and to protect themselves and others from the risk of contracting HIV, such as access to voluntary counselling and testing, education, condoms, bleach, sterile needles and syringes, opioid substitution therapy and other drug dependence treatment.

The Federal Prison Service in the United States was among the first prison systems to implement such a program. Prior to being released from federal prison, inmates were required by the US federal government to test negative for HIV in 1987. Even after serving their whole term or fulfilling the requirements for release in order to be transferred to halfway homes or transitional supervision programs, prisoners who tested positive for the drug were held without their consent. Because there were no effective antiretroviral therapies available and access to care was not guaranteed, these policies had little to no positive impact on the health of individual prisoners. Numerous lawsuits were brought claiming that required testing could actually do more harm than good and did not contribute to the achievement of the stated goal.Furthermore, many questions remain unanswered by the said approach, such as what happens to prisoners on parole or furlough, or what happens if they contract an infection during this time? Other complications include the testing window period and the mandatory periods of isolation that the prisoners must endure.

Moreover, the reliance on antibody-based HIV tests presents a significant obstacle in managing HIV within correctional facilities. These tests only detect antibodies, leaving a window period during early infection where individuals remain infectious despite negative results. This undetected infectivity can create a false sense of security, potentially leading to risky behaviours like needle sharing and hindering containment efforts. Additionally, implementing segregation based on unreliable test results raises severe ethical concerns regarding violations of the right to equality, further complicating disease control efforts.Thus, Individuals in the window period pose a transmission risk despite negative tests, creating challenges for containment strategies and undetected infectivity can lead to risky behaviours,negating preventive measures and potentially increasing transmission.In particular, inmates who test seropositive but have no symptoms of illness have complained that isolating them in a prison within a prison constitutes a punishment that is undeserved and has no legitimate justification .

FROM PRINCIPLES TO PRACTICE: IMPLEMENTING INTERNATIONAL STANDARDS FOR HIV CARE IN PRISONS

Article 12 of the 1948 Universal Declaration of Human Rights guarantees that “No one shall be subjected to attacks upon his honour and reputation, or to arbitrary interference with his privacy, family, home, or correspondence.” “Everyone is entitled to the protection of the law from these kinds of intrusions and attacks.” Article 17 of the 1976 International Covenant on Civil and Political Rights (ICCPR) mandates that the State ensures that individuals are shielded from arbitrary or illegal attacks on their honour and reputation, as well as from arbitrary or unlawful intrusions into their homes, families, correspondence, or privacy which considering its nascent nature and lack of attention to the privacy of prisoners, will all be breached if the suggested strategy is put into practice.This approach will also be violating Rule 26(2), Rule 31, Rule 32(b) and Rule 32(c) of the the United Nations Standard Minimum Rules for the Treatment of Prisoners also known as the Nelson Mandela Rules that advocates for ethical and professional standards like medical confidentiality and informed consent.

Moreover, The International Guidelines on HIV/AIDS and Human Rights recommend that prison authorities provide prisoners with “access to voluntary testing and counseling” 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, and that “voluntary testing is more likely to result in behaviour change to avoid transmitting HIV to

other individuals”.

NELSON MANDELA RULES AND ITS BINDING VALUE

In light of this critical public health concern, experts in favour of mandatory HIV testing argue that immediate action is required to implement mandatory HIV testing in prison settings. Coupled with this, a robust and evidence-based treatment strategy must be established to effectively address the needs of infected inmates. Such measures would not only align with the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) that is known to focus on aspects like prisoners’ inherent dignity as human beings, vulnerable groups of prisoners, medical and health services, etc. but also uphold the landmark Apex Court ruling emphasising the State’s obligation to protect and preserve life, regardless of an individual’s legal status. This ruling sets a strong precedent for upholding prisoners’ rights, particularly their fundamental right to health enshrined in Article

21 of the Indian Constitution.²²

However, Nelson Mandela Rules are not legally binding in nature.

EXPLORING NATIONAL INTERPRETATIONS OF THE NELSON MANDELA RULES

A straightforward approach has been adopted by Europe, which updated the Standard

Minimum Rules with its own set of regional regulations known as the European Prison Rules.Conversely, the United States has not formally embraced the Standard Minimum Rules, but has instead depended on standards formulated by various professional associations and on the protection of prisoners’ rights through legal actions that occasionally take the Standard Minimum Rules into account. It is therefore possible to argue that the US has implemented the SMRs in an oblique manner.In the Roger v. Simmons ‘ case, the question of whether the execution of minors constituted “cruel and unusual punishment” under the growing standards of decency was addressed by looking at the content of international norms to guide the interpretation of the Eighth Amendment to the United States Constitution.

INDIA’S EFFORTS TO PROTECT PRISONERS’ RIGHTS IN LINE WITH THE MANDELA RULES

The Nelson Mandela Rules were distributed to all States and Union Territories (UTs) in India by the Ministry of Home Affairs, who also recommended that these rules be translated into the local language and that all prison officials be made aware of the guidelines contained within in order to guarantee that the relevant officials adhere to the rules when interacting with prisoners.Hence, it still does not hold a legally binding value before the Hon’ble Court.However, even if we go by the Nelson Mandela Rules, mandatory HIV testing would be in violation of Rule 26(2), Rule 31, Rule 32(b) and Rule 32(c) that holds for confidentiality and informed consent.

In the well known Samira Kohli case, the Hon’ble Apex Court preferred has preferred ‘real consent’ followed in the UK over ‘informed consent’ followed in America.The elements of real consent as prescribed in the present judgment are:

i. The patient gives it voluntarily without any coercion ii. The patient has the capacity and competence to give consent

iii. The patient has an adequate level of information about the nature of the procedure to which he is consenting.

Furthermore, Consent Given Only For Diagnostic Procedure,cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure.Mandatory HIV testing lacks safeguards to ensure valid consent, potentially rendering it legally precarious and susceptible to challenge on grounds of coercion and lack of autonomy.

SUGGESTIONS

While it is understandable that mandatory HIV testing is required to ensure the welfare of all the incarcerated citizens and to safeguard the public health , which has been put forth in various cases like in Lareau v. Manson, federal court in Connecticut declared that testing all incoming inmates for contagious diseases is “widely recognized to be essential to the health of inmates”. In the case of Langton v. Commissioner of Corrections,Massachusettsprisoners sought injunctive and declaratory relief from a compulsory tuberculosis (TB)-testing program implemented in 1990 after three in- mates were diagnosed with TB.

The inmates contended that the compelled TB tests violated their civil rights under the United States and Massachusetts Constitutions , the Court held that Massachusetts gives both the Department of Corrections and the Department of Public Health broad statutory authority to protect the health and well-being of prisoners . Both agencies had determined that prisons are particularly high-risk environments for the trans- mission of TB and that a potential public health emergency currently existed in prisons throughout the state . Under these circumstances, the state’s interest in the preservation of life and in orderly prison administration outweighed any privacy or other rights retained by the prisoners.

However, it becomes a concern that the disclosure of information about HIV patients in India, where the disease still carries a significant stigma. It is crucial to protect the privacy and rights of people living with HIV (PLHIV) to prevent discrimination and ensure access to healthcare, this in addition to violation of right to equality also infringes prisoners’ right to privacy.It was addressed in the case of Doe v. Coughlin, the prisoners brought a class suit action that their transfer to a separate dormitory (D-2) would reveal their HIV status to other prisoners and to nonmedical staff.The Court resting its decision on the right of privacy, granted preliminary injunctive relief to HIV-positive prisoners at the Greene Correctional Facility.The Court determined that the plaintiffs retained a constitu- tionally protected “right to privacy in preventing the non-consensual disclo- sure of [their] medical diagnosis.”

Thus, prioritising informed consent, promoting self-disclosure through counselling and support systems, and empowering individuals to make informed decisions regarding disclosure are crucial.

CONCLUSION

In the intricate tussle between public health mandates and individual freedoms, striking a harmonious balance becomes paramount. In the domain of HIV management, prioritising the mitigation of transmission is undeniably crucial. However, safeguarding the individual’s right to privacy and dignity must not be sacrificed at the altar of public health objectives.Ultimately, ensuring the well-being of both individuals and the collective necessitates a nuanced approach. By recognizing the inherent value of both public health concerns and individual rights, navigating this complex terrain responsibly requires a

commitment to transparency, open dialogue, and the unwavering respect for human dignity.