Introduction
Chapter One
INTRODUCTION
HIV or Human Immunodeficiency Virus has emerged as a serious threat to the life of
human beings in recent years. The human race have witnessed, controlled and even
eradicated many fatal diseases like leprosy, influenza, plague, malaria, yellow fever
and small pox. However, the emergence of HIV, which eventually leads to AIDS or
Acquired Immunodeficiency Syndrome, has threatened the life of masses throughout
the world. HIV and AIDS together have not only posed a major challenge to modern
medical science, but it has also emerged to be a serious public health challenge. This
is because HIV and AIDS are often associated with a lot of stigma, prejudice, fear and
silence and this presents a stark example of the nexus between health and human
rights. This, accompanied with ignorance, lack of knowledge and awareness have
often triggered serious consequences, contributing to neglect of care and treatments to
people living with HIV and AIDS.
HIV/AIDS in the prison setting needs special attention. The situation of HIV
& AIDS in the prisons is an issue which is often ignored and neglected. This is mainly
because of the fact that prisoners are often the forgotten lot of the society. However,
there are many issues which need to be mentioned concerning HIV/AIDS in the
prison setting.
Prisons not only create HIV/AIDS risk for those inside, but also for the
communities to which inmates sooner or later return. The living conditions in prisons
are all too conducive to HIV. Overcrowding and boredom leads to sex and drug
abuse. The rapid development of tuberculosis or an HIV epidemic in prisons
represents a major threat to prison population and to society in general. HIV
infections acquired in prison are brought home to partners, spouses, and other sexual
partners who might not otherwise be at risk. There is an urgent need to work today so
that people working or incarcerated in prison, their family and their social contacts
can be spared much suffering and humiliation. It must be urgently addressed for the
sake of the health, rights and dignity of prisoners; for the sake of the health and safety
of the prison staff; and for the sake of the communities from which prisoners come
and to which they return. Prisons also present an opportunity for prevention. In
prisons, health authorities have a captive audience of hard-to-reach people who are
1
Introduction
ordinarily reluctant to seek out public health officials or get tested for HIV because of
the stigma and criminal policies (Burris & Villena, 2004)
Although various efforts have been initiated around the world to tackle the
problem of HIV/AIDS in prisons, the initiatives have remained inadequate.
Particularly in India, minimal efforts have been made to deal with the issue of
HIV/AIDS in prison. On one hand, there is a dearth of data and literature on
HIV/AIDS in prisons in the Indian context, on the other hand, the kind of
interventions made has remained piecemeal and segregated. So far, one study has
been reported in India on the knowledge, attitude, behaviour and practices of
prisoners on HIV/AIDS (Rajkumar et. al., 2004).
Assessing knowledge, attitude and behaviour of prison inmates together with
their understanding of prevention regarding HIV/AIDS is essential to device an
effective HIV/AIDS prevention strategy inside prisons and to prevent the spread of
the virus when prisoners are released in the outside community. Thus, from a public
health point of view, a study of knowledge, attitude, behaviour and understanding of
prevention of HIV of the prison inmates is essential. It is in this scenario that the
present PhD study attempted to explore the knowledge, attitude, behaviour and
understanding of prevention of prisoners regarding HIV/AIDS.
1.1 Overview of the Prison Setting
This section explains prisons as the context of the study. The section covers the
theoretical framework of prisons, the evolution of penal system in India and the health
scenario in prisons in India.
1.1.1 Theoretical Framework: Prisons
The following theoretical underpinnings have been explored to understand prisons as
the context of the study:
1. Prisonization: A major tenet of the study of prison and the inmate subculture is the
process of prisonization, popularized by Donald Clemmer in 1940. Prisonization
refers to the process of adjusting to the prison environment, which has its own set of
morals, laws, rules, social relations, patterns of behaviour and problems. This model
holds that the longer inmates are incarcerated, the more “criminalized” and distanced
they become from the values and behaviours of society outside the prison walls. The
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Introduction
bulk of literature on prisonization focuses on the conditions of incarceration, the
prison subculture, individual inmate characteristics, and the behavioural pattern of the
inmate (Krebs, 2002). The inmate increasingly acquires the values, standards and
behaviour patterns of other inmates, which in turn results in the inmate assuming
criminal role identities (Zingraff, 1975). It is a process of being socialized into the
culture and social life of prison society to the extent that adjusting to the outside
society becomes difficult.
The existing prison culture has been referred to as “prisonization” or “prison
code”. It is widely acknowledged by those who live and work in prisons. The prison
culture, which is very unique and distinct in its own ways, is often referred to as
“prisonization” or “prison code” by Clemmer (1963). This prison culture is
characterized by the existence of drugs and widespread drug use, racially motivated
groups, violence, sexual aggression and other anti-social behaviour. While displays of
machismo are often considered acceptable; showing love, affection, or compassion,
can be viewed as signs of weakness and are not acceptable. The issue of trust, or more
precisely the lack of trust, is a central feature of the prison code. For example, a new
prisoner learns very quickly that outside a select group of prisoners, inmates should
not trust other people including prison staff or others who work in or represent some
aspect of the Criminal Justice System (Clemmer, 1963).
The effects of prisonization, however, can be neutralized and minimized
through various strategies to enable the prisoner to re-integrate into society as a
productive member after release. It is essential that policy makers accept the fact that
correctional institutions are unique environments with distinct culture, and so
strategies should be established to consider the content of the message and who will
deliver the message. Harding (1987) mentions the correctional community as a
subculture and stresses that the community must be taken into consideration when
developing a health promotion program and the prison is a community within itself.
Strategies for controlling AIDS in correctional facilities should follow closely the
strategy for the non-institutionalized community. Likewise persuasive communication
and environmental manipulation are two social influence strategies that have been
proposed to encourage health promotion behaviour among community populations
(Jaccard et. all., 1990). Exposing individuals to information in an attempt to influence
and modify individual beliefs, attitudes, and / or decisions has been more readily
3
Introduction
accepted within correctional facilities. In fact, education is the major intervention to
prevent the spread of HIV transmission (Hu, Keller & Fleming, 1989).
2. Prisons as total institution: Prison’s has also been described as total institution
by Erving Goffman (1961). In total institutions, special sub-cultures are formed with
articulated set of values and informal rules and roles. Some of the central features of
total institutions are: the breakdown of barriers between spheres of life (sleep, play
and work); all aspects of life are conducted in the same place under the same central
authority, and; tightly scheduled activities, where each activity is carried out in the
company of the large group. Each member of the group is treated alike and required to
do the same things together. Finally, the various enforced activities are brought
together into a single rational plan purportedly designed to fulfil the official aims of
the institution.
In total institutions, there is a basic split between a large managed group,
conveniently called inmates and a small supervisory staff. Often, the staff-inmate split
leads to a considerable social distance between the two groups. Inmates typically live
in the institution and have restricted contact with the world outside. The staff often
operates on an eight-hour day schedule and is socially integrated with the outside
world. Each group tends to conceive of the other in terms of narrow hostile
stereotypes. Social mobility between the two strata is grossly restricted; the social
distance is typically great and often formally prescribed. Even talking ‘across’ the
boundaries is often seen to be conducted in a special tone.
The ‘Inmate World’ is characterized by various factors. The recruit comes
into the establishment with a conception of himself made possible by certain stable
social arrangements in his home world. Upon entering prison, he is immediately
stripped of these arrangements and begins to face series of abasements, degradations
and humiliations. His self-esteem is systematically mortified. He experiences radical
shifts in his moral career, a career composed of the progressive changes that occur in
the beliefs that he has concerning himself, partners and friends (Goffman, 1961).
The ‘staff world’ is also characterized by various factors. Personnel in prison
are isolated even from the public and remain invisible, behind the walls. Often, prison
officials experience “burn out” (Fox, 1983), which is defined as a syndrome of
emotional exhaustion and cynicism that frequently occurs amongst individuals who
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Introduction
do “people work” and spend considerable time in closed settings with others under
chronic stress and tension.
Apart from the above, the prison subculture and the patterns of inmate
behaviour are explained by the deprivation and the importation models. These models
provide more focused insight on the adaptations to confinement and resulting patterns
of inmate behaviour.
3. The Deprivation model: The deprivation model or indigenous influence theory,
supposes that behaviour inside prison is the result of a prisonization process that
occurs on incarceration. The prison environment deprives inmates of certain needs,
and it is believed that the absence of these needs leads to behavioural changes in the
inmate, as the modes of response. The loss of basic need due to incarceration is being
referred to as “pains of imprisonment” by Gresham Sykes (1958) in his classic study
titled “The Society of Captives”. The pains of imprisonment include loss of liberty,
goods and services, heterosexual relationships, autonomy and security. This sense of
loss affects an inmate’s attitude, self-image, values and behaviour, which once
changed, produce a unique culture called the inmate code. The inmate code opposes
the institutional authority of the prison staff. As a result, the inmate internalizes
deviant normative prescriptions, viz. drug abuse and homosexuality. This mode of
response constructs and maintains the inmate subculture. The inmate neutralizes the
pains of imprisonment by adhering to the inmate code and thus become prisonized
and survives and copes with incarceration (Sykes as cited in Krebs, 2002; Thomas &
Cage as cited in Gillespie, 2005; Thomas, 1977).
In this sense, drug-related behaviour or homosexuality inside prison is simply
a response or adaptation to confinement and may be explained in terms of the
attitudes and beliefs associated with the inmate code.
4. The importation model, or cultural drift theory, stands in opposition to the
deprivation model. This model was first proposed by Clarence Schrag (1961).
According to this alternative perspective, inmate behaviour is best explained by
factors such as pre-prison experiences, extra-prison contacts, and evaluations of life
chances following release from prison (Thomas & Cage as cited in Gillespie, 2005).
This model holds that values of the prison subculture are imported into the prison
from the outside world. This is further explained in John Irwin’s (1970) work, ‘The
5
Introduction
Felon’, which said that the behaviour of the inmate is not merely a reflection of the
unique deprivations of imprisonment but an extension of the behavioural patterns of
the inmates prior to incarceration. Irwin & Cressey (1962) identified several
subcultures that are found in both the general population and the fellow prisoners
inside, thus shaping inmate behaviour, the prison subculture, and the correctional
environment (Schrag, 1961; Irwin, 1970; Thomas, 1977; Krebs, 2002; Gillespie,
2005)
It can be said from the above that in relation to knowledge, attitude, behaviour
and understanding of prevention (KABP) on HIV/AIDS of prisoners, the present PhD
study tried to understand: (a) the pre-prison socialization and experiences of inmates
regarding KABP on HIV/AIDS, (b) characteristics of prison organization and the
problems it creates for HIV positive inmates in terms of care and treatment, and (c)
their expectation and understanding of HIV/AIDS prevention post release. Also based
on the importation model, it is important to understand certain characteristics about
the inmates prior to incarceration which they import into the prison upon
incarceration. In the context of HIV/AIDS, it is important to learn who are the
inmates, what is their social, economic and demographic characteristics which shape
their knowledge, awareness and attitude regarding HIV/AIDS, how are their
knowledge and awareness formed which ultimately they carry in the prison. It is also
essential to know if the inmates were involved in any high risk sexual behaviour prior
to incarceration viz. homosexuality and drug abuse, if their level of understanding
relating to the prevention of the transmission of HIV is shaped prior to their
incarceration and if yes, to what extent those understanding are shaped. Following the
deprivation model, it is essential to understand the various pains of imprisonment that
the inmates experience, what inmate code they adhere to and what modes of response
they exhibit. More specifically, whether inmates engage in any high risk behaviour
inside the prison such as homosexuality and injecting drug use etc which they would
not have, had they not been imprisoned. It is necessary to determine if the inmate
exhibits such high risk behaviour while inside the prison without the knowledge and
risks of HIV transmission or while having a misleading knowledge and awareness of
HIV transmission. It is important to understand how prisons as total institution have
an impact on the knowledge, awareness, attitude, behaviour and understanding of the
prevention aspects of HIV/AIDS of HIV negative inmates. More specifically, the
present PhD study focused on the various characteristics of total institution
6
Introduction
experienced by the HIV positive inmates and which have an impact on the expressed
needs of the HIV positive inmates regarding health, care and treatment. To neutralize
and minimize the effects of prisonization, it is important to explore what kind of
various strategies are being implemented by the prison administration to enable the
prisoner re-integrate into society as a productive member after release. More
specifically, what are the strategies adopted by the prison administration for
controlling AIDS in correctional facilities, also whether such strategies are in line
with the strategy adopted for the non-institutionalized community. It is important to
assess whether persuasive communication and environmental manipulation are being
implemented in the prison to encourage health promotion behaviour. Information and
education to prison inmates regarding HIV/AIDS as an intervention strategy could
influence and modify their beliefs, attitudes, and / or decisions to prevent the spread
of HIV transmission in prison and after they are released into the society.
1.1.2 The Penal System in India
Since their inception, the prisons have been used for detention and incarceration of
offenders-men, women and children. Manusmriti talks about imprisonment as one
method of punishment along with others like fine and corporal punishment.
Arthashashtra by Chanakya prescribes incarceration as chief mode of punishment
besides fine. Later with the advent of Muslim rule in India, punishment of
imprisonment was provided besides other modes like public humiliation. Till this
time, the use of prison for incarceration was minimal. With the advent of British rule,
the law related to penal offences was codified as chief mode of punishment under
Indian Penal Code. The chief objective of punishment was to deter the would be
offenders rather than any reformation. The prisons were based on the principles of
retribution, expiation and deterrence and therefore were punitive in character.
However, in modern times, with the growth of knowledge about criminal behaviour,
the ideas of retribution have been replaced by the reformation and social rehabilitation
of offenders. Thus the Correctional services now emphasize on re-education of
offenders and after care within the limitation of disciplinary control and the
deprivation of civic liberty imposed by the fact of his/her conviction (Tiwari, 2002)
Criminal Justice System in India descends from the British model. Under the
constitution, criminal jurisprudence belongs concurrently to the central government
and the states. The prevailing law on crime prevention and punishment is embodied in
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Introduction
two major statues: the India Penal Code, 1862 and the Code of Criminal Procedure,
1973. These laws take precedence over any State legislation, and the States cannot
alter or amend them. Although, both the Central and State governments can enact
separate legislation, however, all legislation remains subordinate to the constitution.
The constitution assigns custody and correction of criminals to the States and
territories. The Ministry of Home Affairs, Government of India is responsible for the
administration of prisons in India. The day-to-day administration of prisons in all the
states and union territories of India are governed by the respective Prison Manuals
containing Rules, Regulations, Orders and the various amendments, which are
inserted on a regular basis. The day to day administration of prisoners rests on
principles incorporated in the Prisons Act 1894, the Prisoners Act of 1900 and the
Transfer of Prisoners Act of 1950. An Inspector General of Prisons administers
prison affairs in each State and territory.
1.1.3 Evolution of Prison System in India: A Brief Overview
Prisons in India were established during the British rule. However, the origins of
criminal jurisprudence in India can be traced back to 4000 B.C. in inscriptions and
scriptures such as Rig Veda, Mahabharata, Manav Dharmashastra etc. The subsequent
development of the Indian prison has been influenced by the ideas which the various
jail committees appointed by the British Government had put forth between 1836 to
1920. As a result of various recommendations of the successive committees, the
material condition of life in prison improved, though the idea of deterrence prevailed
throughout the period. Services for the juvenile offender started developing. The
development of prison conditions in India and the evolution of prison administration
have been described under the following broad heads (Prasad, 2005; Tiwari, 2002 &
Bhushan, 1969):
1. Before 1864: The first Committee on prison administration in India known as
the Prison Discipline Committee was set up in January 1836 on the suggestion
of Lord Macaulay. Its report was received in 1838. This Committee made
severe criticism of corruption, indiscipline in the jails and the extra-mural
employment of prisoners on the public roads. In pursuance of the
recommendations of the first prison Enquiry Committee, Central Jails were
constructed at several places such as Agra (1846), Bareilly (1848), Lucknow
8
Introduction
(1851), Banaras (1851), Meerut (1851), Jabalpur (1854), Coimbatore,
Bombay, Alipur, Fatehpur, etc between 1846 to 1864. The First Reformatory
School for juveniles was founded in Bombay in 1843, named as the David
Sassoon Industrial School. The Inspector General of Prisons was appointed
for the first time in 1855 as the administrator of prisons in India. In 1860, a
simple Code of Rules was framed for the first time for the governance of jails,
which was followed by the Goal Rules of 1866.
2. 1864 to 1894: In 1864, a Commission of Enquiry into Prison Management and
Discipline was set up. Both the reports, the report of the Prison Discipline
Committee and the Commission of Enquiry into Jail Management and
Discipline indicated that the British were interested only in maintaining prison
administration and discipline. After this, a Conference of Experts was held in
1877 which resulted in a Draft Bill governing the principles and practices of
prison management. But the Bill did not materialize into Act. As a result of the
recommendations of the subsequent Jail Committees of 1864, 1877 and 1889,
measures were taken for the enforcement of prison discipline. Although the
emphasis remained on hard labour, a few amenities began to be given to
prisoners for good conduct and good work. Towards the eighties of the 19th
century, the emphasis shifted from unproductive to productive prison labour.
After 1864, a system of recording good conduct was devised in the form of
remission for prisoners. Prisoners could earn privileges like interviews with
friends, light labour and education. In 1884, the Government of India
determined the authority for classifying the offenders. A significant
development happened with the enactment of the Prisons Act of 1894, which
sought to streamline prison administration and put it on a uniform footing
throughout the country. It provided with classification and separation of
different types of prisoners based on age, their civil or criminal status and on
the basis of whether they were undertrial or convicted criminals. The Medical
Officers were required to visit the prison daily and examine prisoners confined
in the cells for more than 24 hours. The Act also restricted employment of
convicted prisoners sentenced to rigorous imprisonment to no more than nine
hours everyday. The Medical Officer was made responsible to ensure that the
prisoner’s health was not injured by the work in which they were employed.
The Act also restricted the use of whipping, restricted cellular confinement
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Introduction
diet and helped in securing uniformity in the treatment of offenders in the
entire system of Jails in India.
3. 1894 to 1947: The Report of the Indian Jails Committee of 1919-20 is
considered to be the foundation stone of modern prison reform in India. For
the first time, this report identified reformation and rehabilitation as the true
objective of prison administration. This Committee was appointed to examine
the system of jails in India. It defined the aim of the Prison Administration as
“prevention of further crime and restoration of the criminal to society as a
reformed character”. It stressed the need for shifting the emphasis from the
punishment of offenders to their reformation and recommended the adoption
of measures. Apart from this, classification of prisoners, Probation, Parole,
setting up of juvenile institutions- Remand Homes, Certified Schools,
Probation Services and After Care Hostels, Borstals and introduction of
separate institutions for women followed after the publication of the 1919-20
report.
4. 1947 to 1979: After independence, a number of prison reform committees
were appointed by the state governments. The objectives of reformation and
rehabilitation were accepted, the specialized institutions and services like
premature release and aftercare of all offenders was recognized. States of UP,
Bombay and Madras were in the forefront in the progressive movements. The
report submitted by Dr. W.C. Reckless on the Prison Administration in India
in 1951-52 suggested a number of modifications in the techniques of handling
offenders and marked a turning point in the history of prison reforms in the
post independence era. The Central Social Welfare Board appointed an
advisory Committee on After-Care Programmes in India, which suggested
institutional care and post-institutional or after care for the prisoners. After
care, according to the Committee, consisted of vocational rehabilitation and
social rehabilitation. The All India Jail Management Committee was
appointed in 1957 by the Government of India, which submitted a
comprehensive report in 1959 alongwith a “Model Prison Manual, 1960”
containing elaborate standards and guidelines on the subject. In pursuance of
one of its recommendations, the Government of India set up the Central
Bureau of Correctional Services 1961, which was later re-designated as the
National Institute of Social Defence (NISD) since January 1975. This body
10
Introduction
has been responsible for the coordination, development and standardization of
services in the field of social defence. The Working Group on Prisons, 1972
suggested that the Government should also make effective use of alternatives
to imprisonment as a policy measure. It said that developments of prisons and
correctional administration should no longer be divorced from the national
development process and prison administration should be treated as an integral
part of the social defence component of national planning.
5. 1980-1995: After 1980, the prison conditions were debated in different forums
from time to time viz. the All India Seminar on Correctional Services,
Conference of Chief Secretaries of all States and Union Territories. These
conferences deliberated in detail on various problems relating to prison
development. Persistent criticism about the manner in which the prison system
was functioning and the fact that it did not match with the international
standards of human dignity and the preservation of fundamental human rights
of prison inmates, resulted in the setting up of the All India Committee on Jail
Reforms (Mulla Committee) in 1980 under the chairmanship of Mr. Justice
A.N.Mulla (Retd.). This Committee was set up to look into the various
problems in Indian Jails and suggest practical remedial measures. The
recommendations of the Mulla Committee examined all aspects of prison
administration including legislative, operational, security aspects besides
matters like classification of prisoners, living condition in prison, medical and
psychiatric services, treatment programs, vocational training for prison inmate,
problems related to undertrials and other unconvicted prisoners, problems of
women prisoners etc. The National Police Commission (1977-80) also looked
into issues such as arrest, detention in custody, interrogation of women and
delay in investigation. Besides highlighting the need to adhere to the
provisions of law, it made wide ranging suggestions to amend laws and
procedures to cut down on delays at the investigation and the trial stages.
Recommendations of the Mulla Committee and the subsequent Kapoor
committee (set up in 1986) largely remain unattended. The National Expert
Committee on Women Prisoners (Krishna Iyer Committee) was appointed
under Mr. Justice V. R. Krishna Iyer in 1987 to identify the gaps in the
existing facilities and services and to evolve a more humane policy towards
woman offenders. The Krishna Iyer Committee recommended for policy
11
Introduction
changes, legislative reforms, administrative changes and organizational
innovations.
6. 1995 onwards till date: Since, 1995, the Bureau of Police research and
Development (BPR&D) under the Ministry of Home Affairs, Government of
India, has been taking up functions relating to the correctional administration,
since its work involves interaction with the Police and Prison Departments of
the State Governments. The National Commission to Review
Working of the Constitution was set up on
the
22 February, 2000. This
Commission examined the effectiveness of the Constitution to respond to the
changing needs of efficient, smooth and effective system of governance
and
socio-economic development of modern India within the framework
of Parliamentary democracy. The Commission submitted its report in two
volumes to the Government on 31st March, 2002. Of the various
recommendations, 58 recommendations involved amendment to the
Constitution, 86 involve legislative measures and the rest involve executive
action. Regarding the Criminal Justice System, the Commission noted poor
quality of investigations, delay in trial, costs of litigation etc. It suggested
institutional arrangements with regards to victim-protection, protection of
witnesses and training, refresher and continuing legal education for lawyers,
judges and judicial administrators. Further, the Commission stressed the need
for alternative dispute resolution mechanisms, such as mediation, conciliation
and arbitration and mechanisms of auxiliary adjudicative services.
Modernizing the system and making it user-friendly was highlighted as one of
the urgent tasks (Department of Legal Affairs, 2002). In 2000, the BPR&D
constituted The All India Model Prison Manual Committee with the approval
of the Ministry of Home Affairs, at the national level for the formulation of a
Model Prison Manual. Thus the Model Prison Manual for Superintendence
and Management of Prisons in India was drafted in 2003. In preparing this
manual, the Committee took into consideration the draft of the proposed
national policy on prisons as suggested by All India Committee on Jail
Reforms 1980-83 (Bureau of Police research and Development, 2003). The
Committee on Reforms of the Criminal Justice System, headed by Justice
V.S. Malimath, submitted its report to the Ministry of Home Affairs in April
2003. The report, popularly known as the Malimath Committee report,
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Introduction
highlighted various issues related to the criminal justice administration and
recommended an overhaul of the criminal justice system. Although there was
no separate section on prison reforms, various observations made by the
Commission have direct bearing on prison reforms. For example, the
Commission noted that there is huge pendency of criminal cases, inordinate
delay in disposal of criminal cases and very low rate of conviction in cases
involving serious crimes. To address these issues, the Committee suggested
improving training, standards, and accountability and to increase the overall
efficiency of the court system and to root out incompetence and corruption
among the police, prosecutors, and judges (Ministry of Home Affairs, 2003).
However, the Malimath Committee report met with severe criticism by the
Amnesty International India which expressed concern over some of the
Committee’s recommendations as serious threat to human rights. The
Amnesty International viewed the recommendation as controversial and
violative of the provisions of the international human rights standards which
establish a framework for human rights protection within criminal justice
systems throughout the world. Further, the report was criticized on the fact
that it failed to address a vast range of important concerns about the current
functioning of the criminal justice system. Some of these issues include the
problems of access to the criminal justice system for marginalized
communities, lack of access to legal aid, endemic corruption, discrimination
and bias within institutions of the criminal justice system, non-implementation
of safeguards against police abuses, impunity for human rights violations
committed by state actors, among others (Venkatesan, 2004;
Amnesty
International India, 2003). Also, the Government of India took up a five year
Modernization of Prisons Scheme with effect from 2002-2003 in partnership
with the State Governments on cost sharing basis in the ratio of 75:25, the
share of Central Government being 75 % and that of the State Government
being 25 %. A sum of Rs. 1796.5 crores was earmarked for various activities
related to capacity addition and improvement in quality. This scheme broadly
aimed to lessen the problem of overcrowding through construction of new
jails, staff quarters and renovations of old buildings. Under this scheme,
Maharashtra was allocated Rs.129.16 crore for construction of new jails,
repair and renovation of existing jails, improvement in sanitation and water
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Introduction
supply. The Government is now planning to start the second phase of prison
modernisation scheme in which in addition to taking up the aforesaid works
under the scheme, the State Governments have now been allowed to utilize
10% of their entitlement for 2006-07 on providing modern equipment, such as
computers, video conferencing facilities, etc. and building/improving
infrastructure for undertaking correctional programmes. The program has an
outlay of Rs. 3500 crores (Ministry of Home Affairs, 2008). The Government
also introduced The Code of Criminal Procedure (Amendment) Act, 2005
which enabled undertrial prisoners, except those charged with offences
punishable by death, to be released on personal bonds if they had served more
than half the sentence for the crime they were being tried for. The BPR&D has
also drafted the National Policy on Prison Reforms and Correctional
Administration in 2007 which elaborates on the medical facilities that should
be provided to prisoner during their confinement. This includes a
hospital/dispensary in each prison, with round the clock medical facilities and
specialized medical treatment to prisoners at earmarked wards in Government
Hospital to save his/her life when afflicted with illness to treat him from
sickness (Bureau of Police research and Development, 2007).
The above description highlights the prison reform movement in India that had been
initiated in various time periods. As initially prisons were meant for deterrence with
no objective of reformation of offenders, no serious attention was paid to the
problems that prisoners faced regarding lack of sanitation, health, overcrowding,
mixing of young prisoners with adult prisoners and facilities for their reforms.
However, gradually, since independence, the various Committees/ Commissions
made thorough examination of all aspects of the prison administration including
health care facilities for prisoners. This aside, several State level Committees have
severely criticised the state of hospital and medical facilities in prisons. However,
action on most of the recommendations contained in these reports could not be taken
mainly due to lack of political and administrative will. Also, the Justice Leila Seth
Commission of Inquiry constituted to look into the circumstances leading to the death
of Rajan Pillai in Tihar Jail, Delhi found several lapses in medical facilities being
provided to the prisoners in Tihar Jail. The Commission recommended improving
medical care and standards of medical facilities in Tihar Prisons. Although, mandate
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Introduction
of this Commission was limited to Jails (Central Prisons, Tihar) of the Government of
N.C.T. of Delhi, however these are equally relevant to other States (Guin, 2007).
Presently, although the various committees and commissions have thrown light upon
the health condition in prisons from time to time, most of the recommendations
remained non-implemented. The Supreme Court and the High Courts in India have
also given progressive judgements to uplift the health situation in Indian prisons.
1.1.4 Judicial and Quasi-Judicial Intervention in Prison Medical Facilities
The Supreme Court took note of the unsatisfactory situation of health and hygiene in
the prisons and laid down in P.B.K. Mazdoor Samity v. State of West Bengal (AIR
1996 SC 2456) that providing adequate medical facilities for the people was an
essential part of obligation undertaken by the Government of Welfare State. In Rama
Murthy v. State of Karnataka (AIR 1739 SC1997), the Supreme Court held the
society’s obligation towards prisoners’ health for two reasons. One of these reasons
was that prisoners do not enjoy the access to medical expertise as the free citizens and
the second is the conditions of prisoner’s incarceration expose them to more health
hazards than free citizens. The Supreme Court has laid down several guidelines for
the betterment of prison conditions and for the realization of the right to life of the
prisoners as enshrined under Article 21 of the Indian Constitution through various
landmark judgements like Hussainara Khatoon v. State of Bihar (AIR 1360 SC 1979),
Md. Giasuddin v. State of Andhra Pradesh (AIR 1926 SC 1977), D.B.M. Patnaik v.
State of Andhra Pradesh (AIR 2092 SC 1974), Sheela Barse v. State of Maharashtra
(AIR 378 SC 1983), Sunil Batra v. Delhi Administration (AIR 1675 SC 1978) and
Prem Shankar v. Delhi Administration (AIR 1535 SC 1980) (Singh, 2000).
Mumbai High Court in Muktaram Sitaram Shinde v. The State of
Maharashtra (Writ Petition No. 3899 of 1996) held that a prisoner died in the jail, as
there were no adequate medical facilities available at Kolhapur Central Prison in
Maharashtra State. The prisoner suffered a heart attack and was not given prompt
medical attention despite his request. Instead of sending the prisoner to the hospital
for medical treatment, the Superintendent and the Jailor threatened the prisoner
against making false pleas.
15
Introduction
In Ranchod Vs. State of Madhya Pradesh [1988 16 Reports (MP) 147], the
M.P. High Court highlighted callous behaviour of doctors, maltreatment by prisons
staff and tampering of prison’s records by prison officials in a prison of the State.
Apart from these, the National Human Rights Commission and the State Human
Rights Commissions have also taken various initiatives to upheld the rights to health
of prisoners.
1.1.5 Efforts of National and State Human Rights Commissions
Besides the Supreme Court and High Courts, the National Human Rights
Commission (NHRC) and various State Human Rights Commissions have criticized
the state of medical facilities in jails in several cases reported to them.
Since its inception, the NHRC has expressed its deep concern about appalling
conditions of overcrowding, lack of sanitation, poor medical facilities and inadequate
diet in most of the prison of the country. It has taken note of the disturbing trends in
the spread of contagious diseases in the prisons. In a study undertaken by the
commission regarding custodial deaths in prisons, it was revealed that a high
percentage of deaths (about 70% of deaths in judicial custody, other than those
attributable to custodial violence), were attributable to the incidence of tuberculosis.
With a view to tackle this, the NHRC devised a proforma for health screening of
prisoners on admission to jail and circulated it to all IG Prisons/ Chief Secretaries of
States/ Administrations of Union Territories on February 1999. Accordingly, it
required that all State Governments and prison administrations should ensure medical
examination of all the prison inmates in accordance with the proforma and monthly
reports of the progress be communicated to the Commission. It had also written to the
IG Prisons to send half yearly reports giving the progress of compliance of the
Commission’s directions on the subject as on 1st January and 1st July every year in a
stipulated proforma (Tiwari, 2002).
Recognizing the right to Medical Facilities, the NHRC recommended the
award of Rs one lakh to be paid as compensation by the Government of Maharashtra
to the dependents of an under-trial prisoner who died in the Nasik Road Prison due to
lack of medical treatment. The Commission noted that it was unfortunate that the
disease was not diagnosed even though the undertrial prisoner had been in custody for
more than one and a half years. In fact, at the time of his death, he was being wrongly
treated for dysentery and anaemia, when he was actually in the terminal stage of
16
Introduction
tuberculosis. The Commission also asked the state government to take comprehensive
steps to control the spread of tuberculosis and other infectious disease in the prisons
and to install, wherever lacking, adequate diagnostic facilities (National Human
Rights Commission, 1999).
1.1.6 Health Scenario in Indian prisons
Although the above mechanisms to provide quality health care in prisons are in place,
it seems that these are mostly available on paper. The condition of a substantially
large number of prisons continues to be bad, dehumanizing and violative of the
residuary rights of inmates. The condition of the Indian prison continues to be plagued
with the following major problems which grossly violate the Rights to Health of
prisoners and impacts upon their health.
1. Overcrowding: Overcrowding is the greatest practical hindrance to efforts of
reforming the Indian prison system. Some prison house as much as three times
more inmates than their capacity. Prisons in general are housed in dilapidated
age-old buildings with its management in the hands of an untrained,
disgruntled, over worked and insufficient stuff. It has become the root problem
giving birth to a number of other problems relating to health care, food,
clothing and poor living conditions. This also affects the attempt of the prison
administration to empower prisoners with skills that would involve them in
gainful employment after release. Overcrowding is the result of an improper
functioning of the entire Criminal Justice System, including the system of
arrests, sentencing policies and notions of crime. The 5th Report of the Second
Administrative Reforms Commission (2007) noted that India’s prison
population is quite low, both as a proportion of the population and in absolute
terms, when compared to the prison population in the United States and China.
Despite this, Indian jails suffer from serious overcrowding with the bulk of the
inmates comprising undertrial prisoners. As on 31st December 2006, the total
number of prisoners in 1,336 prisons in the country were 3, 73,271, in a
sanctioned strength of 2,63,911 in these prisons. Among these, 65.7% of the
total inmates were undertrial Prisoners and 31.3% of total inmates were
Convicts (NCRB, 2006). The 5th Report of the Second Administrative
Reforms Commission (2007) further notes that the, “most of these undertrial
prisoners are often people from disadvantaged backgrounds involved in minor
17
Introduction
and technical violations of the law who are incarcerated due to their inability
to pay for bail and/or for good legal representation. Thus, hardened convicts
as well as petty offenders like ticketless travellers could end up being
imprisoned together for long periods in crumbling buildings with inadequate
accommodation and sanitary facilities. The situation in many prisons is
appalling enough to be considered a violation of human dignity as well as the
basic human rights of the inmates. Paradoxically, a few individuals, who are
powerful are allowed to enjoy extraordinary facilities not permitted under the
rules”. Apart from these, the National Police Commission had pointed out that
60% of all arrests were either unnecessary or unjustified (Second
Administrative Reforms Commission, 2007, p. 206-209). Further, delay in
completing trials due to the failure of agencies to provide security escort to the
undertrials to the courts on the dates of trial hearing aggravates the problem.
Also, prisons are often being used as multipurpose institutions, to house even
those who do not need incarceration but medical and psychiatric treatment.
2. Delay in Trial: The problem of delay in trial has been highlighted by the
Mulla Committee, Malimath Committee, National Police Commission,
National Human Rights Commission and through Public Interest Litigation (in
the Hussainara Khatun’s case). However, there has not been any relief at all. It
is necessary to understand the various causes leading to the delay in trials.
Delay commences at the investigation stage where in many cases, the police
file charge sheets very late. The next bottleneck occurs in the course of service
of summons to witnesses, often due to collaboration between the process
server, police, and the witness. This stage of the judicial process has lent itself
to corrupt practices. The legal requirement of having to give copies of relevant
documents to the accused contributes delay. The maximum delay takes place
when the evidence is to be recorded. There are also lapses in producing
undertrials in courts on the dates of hearing mainly due to the non-availability
of police escorts. The courts also tend to adjourn cases for a couple of months
at a time, which further aggravates delay.
18
Introduction
3. Torture and ill treatment: Apart from torture, various other physical ill
treatments like putting of fetters, iron bars are generally taken recourse to in
jails. Some of these are under the colour of provisions in the Jail Manual.
4. Neglect of health and hygiene: Most of the Indian jails lack proper facilities
for treatment of prisoners. Medical facilities, however meagre, are available
only in some central jails in each state. In district and sub jails, although a
compounder or some registered medical practitioner is supposed to visit at
regular intervals, the visits never materializes. Overcrowding aggravates the
problem of hygiene. At the Tehsil level jails, even rudimentary conveniences
have been provided. Latrine and bathroom facilities are inadequate to cater to
the daily minimum needs of prisoners. The accommodation provided in most
jails is also inadequate. Most of the jails were built in the nineteenth century.
They are in the state of disrepair and are overcrowded. The food served to the
prisoners is unfit for consumption. Many prisoners die a “natural death” due to
diseases, which are otherwise minor and curable.
5. Prison vices: Prisoners suffer from loneliness and frustration, as they cannot
meet their families and friends often. While in jail, the communication with
the outside world gets snapped with a result that the inmate does not know
what is happening even to his near and dear ones, this causes additional
trauma. This also leads to sexual perversions of all sorts. Homosexuality is
widely prevalent.
From the above, it is very clear that lot of efforts have been taken by the Government
for prison reformation in India through various Committees and Commissions.
However, prison reforms in general and improving the health services in the prisons
has remained a neglected area. In paper, basic medicare for prisoners is available in
all jails according to the respective jail manuals in States. Amongst others, the basic
facilities provided to the prisoners includes food – according to scale, clothing /
bedding, shelter / accommodation, toiletries for hygiene, medicine, referrals to
specialty hospitals. All jails have whole-time or part time physicians, all central or
district jails have hospital beds. Many states also have the services of psychiatrists in
circle/central jails. Sick prisoners are provided special diet (milk, fruits, etc.).
19
Introduction
Complicated cases are referred to specialty hospitals in the respective city/ district
town and they are treated at government cost. Chronic cases are covered by national
eradication programme.
Thus, all the mechanism seems to be on place, still there is huge gap regarding
the provision of basic health care to the prison inmates. It has to be understood that
prison reforms forms an integral part of any attempt to reform the criminal justice
system in order to make it more humane and reformative. Prisons constitute a critical
area of human rights concern. In any civilized society, a person in custody cannot be
reduced to the status of a non-person. The prison system must offer conditions that are
compatible with human dignity and conducive to social mainstreaming. In absence of
proper health services, their high risk behaviour prior to and during imprisonment,
absence of knowledge and understanding regarding HIV/AIDS, prison inmates are
highly vulnerable to contract HIV/AIDS.
1.2 Overview of HIV/AIDS in Prisons
HIV/AIDS has proved to be one of the silent killers in the modern world. People fall
prey to the disease more because of their lifestyles than any disorder. Before going to
the details of the phenomenon of HIV/AIDS in prisons, it is essential to understand
what is HIV and AIDS and how does it has an impact on the life of human beings.
1.2.1 Clinical manifestation of HIV/AIDS and its Symptoms
Acquired Immunodeficiency Syndrome or AIDS is a condition in which the immune
system (in built defence mechanism) of the human body breaks down completely.
This condition is created by a virus called Human Immunodeficiency Virus or HIV.
People who are exposed or infected with HIV are usually referred to as HIV positive.
The phenomenon of getting infected with HIV and developing AIDS is gradual and
happens in several stages as under:
I. Primary HIV Infection: The first clear manifestation of the illness is the
seroconversion illness. More specifically, once a person is infected with HIV, the
virus invades different cells in the blood and in body tissue. Certain white blood cells,
known as the T-lymphocytes or CD4 cells, are particularly vulnerable to HIV. This
20
Introduction
CD4 cells play a critical role in coordinating the body’s immune response system.
HIV is a retrovirus, which means it uses an enzyme to convert its own genetic
material into a form indistinguishable from the genetic material of the target cell.
Thus HIV integrates itself with the CD4 cells and uses the genetic material of the
CD4 cells to replicate itself, eventually killing the infected host cell, in this case the
CD4 cells. This process is called seroconversion which results in the production of
antibodies by the human body. Antibodies are the body’s important cellular defence
mechanism against germs, microbes and other unwanted organisms. In the case of
HIV, these antibodies will confirm that HIV has occurred, though the presence of
antibodies within the blood stream may not occur for atleast three months. This period
from infection to detectable antibody production is called window period. In this
period the blood tests don’t reliably confirm or deny the presence of HIV. In this
period, HIV concentrates in the blood and assaults the immune system immediately.
There is a sudden and serious decline in the number of white blood cells resulting in a
rapid onset of illnesses: fever, enlarged glands, sore throat, aching muscles and
sometimes a rash. It is extremely difficult to differentiate it from many other acute
viral infections, the commonest of which include influenza or the common cold.
These symptoms emerge between six days and six weeks after infection and usually
there is complete resolution of these symptoms within two or three weeks. However,
in many cases, there may not be any symptoms and a person may seroconvert without
recognizing these symptoms (Dickson, 2002; Bennett & Erin, 1999; Cusack & Singh,
1994).
II. Asymptomatic phase: The disease enters the asymptomatic phase after the
symptoms associated with the primary HIV infection subsides. This stage lasts from 7
to 11 years although it varies with each individual. During this phase, the HIV
infected person remain trouble free, can enjoy a good quality of life without suffering
from illness. However, the individual is potentially infectious (Dickson, 2002;
Bennett & Erin, 1999; Cusack & Singh, 1994).
III. Persistent Generalized Lymphadenophathy (PGL): It represents enlargement
of lymph nodes (lymphadenophathy) throughout the body (generalized) and over a
period of time, initially for longer than three weeks (persistent) (Cusack & Singh,
1994). At this stage, HIV now tends to concentrate in the lymph nodes, though low
21
Introduction
levels of HIV continue to appear in the blood. Thus the relative lack of symptom is
because the virus migrates from the blood circulatory system into the lymph nodes.
The virus thrives in the lymph nodes, which, as a vital point of the body’s immune
response system, represents an ideal environment for the infection of other CD4 cells.
CD4 cells continue to decline in an average of 5% to 10 % (40 to 80 cells/ cubic mm)
per year throughout this phase (Dickson, 2002). PGL can be associated with
constitutional symptoms such as malaise, lethargy and night sweats though overall it
has no prognostic value in HIV disease progression (Cusack & Singh, 1994).
IV. Acquired Immunodeficiency Syndrome or AIDS: A HIV positive person is
regarded as having AIDS when his or her CD4 count drops below 200 cells/ cubic
mm of blood or when CD4 cells comprise less than 14% of his or her total
lymphocytes. In other words, the body’s immune system is completely destroyed
which leaves the body vulnerable to a large number of infections sometimes called
opportunistic infections such as TB, cancer, tumour etc. In addition to this
opportunistic infections, the general systematic disorders present during all stages of
the disease such as fever, weight loss, fatigue, lesions, nausea and diarrhoea, tend to
worsen. In most cases, once the CD4 count of the patient drops below 10 cells per
cubic millimetre of blood, death soon follows (Dickson, 2002; Cusack & Singh,
1994).
Thus, HIV infected person die due to one or another of the opportunistic infection.
AIDS has thus been identified as a syndrome rather than a single clinical entity
because of the varied nature of the opportunistic infections. This means that AIDS
patients show several signs and symptoms which occur together at the same time
(Dickson, 2002). The following figure shows the various stages of HIV infection:
3-6
weeks
Initial
Exposure
to HIV
Acute
Illness
>10 years
Asymptomatic
HIV infection
PGL
Full Blown
AIDS
Death
Figure 1.1: Stages of HIV related diseases (Pavri, 1992)
22
Introduction
1.2.2 Origin of AIDS virus
There is much speculation and confusion regarding the exact origin of the AIDS virus.
Various theories have been advanced to explain its early development. One theory
regarding the origin is that the virus was existing already among human beings and it
is only recently that it has become extremely harmful (Mehta & Sodhi, 2004). This
theory may be based on the fact that the virus may have originated in a small ethnic
group which acquired immunity to it but it spread as the virus reached people outside
the community who had no immunity to it. Another theory states that the virus
originated first among monkeys and was then transmitted to human. The third theory
is that the virus is man made from a germ warfare laboratory. Yet another speculation
is that the virus entered the human population in Africa about seventy years ago,
(Korber et al. as cited in Zeichner & Read, 2006) probably as humans hunted and
butchered chimpanzees (Zeichner & Read, 2006).
The several opinions regarding the origin of the AIDS virus remains unconfirmed and
thus the exact origin of HIV is unknown.
1.2.3 History of HIV infection
AIDS came into existence in October 1980- May 1981, when the Centre for Disease
Control in the United States of America became aware of an increase in the
occurrence of two rare diseases, a type of cancer (Kaposi Sarcoma) and a type of lung
infection (Pneumocystitis Carini Pneumonia) in five young homosexual men (Jaiswal,
1992). HIV was identified in 1983 as the infectious agent responsible for many of the
symptoms with illnesses associated with AIDS though previously it had been called
HTLV-III (Human T-Lymphotropic Virus) or LAV (Lymphadenopathy Associated
Virus) (Cusack & Singh, 1994).
In India, in April 1986, for the first time, HIV seropositivity was recorded
among ten female prostitutes from Madras in Tamil Nadu state. This was followed by
the first AIDS patient in the final stage in May 1986 in Bombay, Maharashtra. This
patient was a recipient of unscreened blood transfusion during cardiac surgery in USA
(Kakar, 1994 & Pavri, 1992).
23
Introduction
1.2.4 Types of HIV
In 1986, a second HIV was discovered in healthy Senegalese prostitutes and later
found to be associated with an AIDS-like illness in the West African mainland and
some of the offshore islands (Clavel et. al. as cited in Bennett & Erin, 1999). The
initial virus described in 1983 became known as HIV-1 and the West African virus as
HIV-2 (Bennett & Erin, 1999).
1.2.5 Ways of Transmission of HIV/AIDS
Modes of transmission of HIV depend on exposure to body fluids from an infected
person, quantity of virus, route of exposure and the duration of exposure.
Predominantly, HIV transmits through the following modes (Kakar, 1994; Jaiswal,
1992):
I. Sexual Transmission: HIV infection can be transmitted through heterosexual
intercourse and men to men homosexual intercourse. This includes having
unprotected (without condom) vaginal and anal intercourse with multiple partners.
Apart from this, a person infected with Sexually Transmitted diseases like syphilis,
chancroid, herpes can transmit HIV infection. These sexually transmitted infections
can cause open genital sores allowing the virus to enter the bloodstream.
II. Parenteral Transmission: HIV can be transmitted through sharing HIV infected
needles and syringes. The users of intravenous drugs infect HIV through sharing
needle, syringe or other drug related implements. Further, HIV is also transmitted
through infected blood and blood products like red blood cells, platelets, plasma,
albumin, immunoglobins etc.
III. Perinatal Transmission: HIV is also transmitted from infected mother to child
either in the womb during pregnancy or at birth through exposure to infected maternal
blood. HIV is also transmitted from mother to child during breastfeeding.
1.2.6 Diagnosis of HIV/AIDS
There are no tests available directly to test the presence of HIV infection. The
commonly known tests to detect HIV infection are the tests that detect the presence of
24
Introduction
antibodies that have developed in a person’s body to fight off the HIV infection. The
two most widely known tests are the ELIZA (Enzyme Linked Immunosorbent Assay)
test and the Western Blot test. The ELIZA test is usually the first test to be performed
in a blood sample and has an incubation period of four to six hours with results
usually available in twenty four hours. The ELIZA test often generates a large number
of ‘false positive’ results. A false positive result is one in which the test indicates the
presence of HIV antibodies and thus HIV infection in the person, when in reality the
person does not have the HIV or its antibodies. In this case, a second ELIZA test is
performed and even then if the test comes positive, the Western Blot test is performed
to confirm the results of the ELIZA test. Also, if a person tests for HIV antibodies
during the Window period, the tests will be ‘false negative’, meaning that the tests are
negative even if the individual is HIV infected (Dickson, 2001; Bennett & Erin,
1999).
1.2.7 Treatment
Till date there is no specific cure for AIDS. However there are drugs available which
can prolong the onset of illness for many years. The treatment consists of drugs
known as Anti Retroviral Therapy (ART) which needs to be taken every day for the
rest of someone's life. These drugs work against HIV infection itself by slowing down
the replication of HIV in the body. For antiretroviral treatment to be effective for a
long time, more than one antiretroviral drug needs to be taken at a time. This is known
as Combination Therapy. The term Highly Active Antiretroviral Therapy
(HAART) is used to describe a combination of three or more anti-HIV drugs. In
extreme cases where neither ART nor HAART is available; the treatment remains
limited to the treatment of opportunistic infections. Such treatment has only shortterm benefit because it does not address the underlying immune deficiency itself.
Generally treatment is started when the CD4 test shows less than 350 T-helper cells
per cubic millimetre of blood, although advice varies slightly between countries. Also
ART is advised if one of the opportunistic infection becomes a serious problem
(Introduction to HIV and AIDS treatment, n.d., Mehta & Sodhi, 2004, Jaiswal, 1992).
25
Introduction
1.2.8 Prevalence of HIV/AIDS: Global Scenario
People living with HIV/AIDS in 2007 were reported to be 33 million worldwide. The
annual number of new HIV infections declined from 3 million in 2001 to 2.7 million
in 2007. During 2007, more than two and a half million adults and children became
infected with HIV. There were two million deaths from AIDS, despite recent
improvements in access to antiretroviral treatment. According to estimates from the
UNAIDS 2008 Report on the Global AIDS epidemic, around 30.8 million adults and
2 million children were living with HIV at the end of 2007 (UNAIDS, 2008).
Figure 1.2: HIV/AIDS around the world
Source: Retrieved from http://www.avert.org/worlstatinfo.htm on August 20, 2008
The above chart shows the distribution of people living with HIV around the world at
the end of 2007. The overwhelming majority of people with HIV, some 95% of the
global total, live in the developing world (UNAIDS, 2008).
1.2.9 Prevalence of HIV/AIDS: Indian Scenario
India has a population of one billion, around half of whom are adults in the sexually
active age group. The first AIDS case in India was detected in 1986 from Chennai;
since then HIV infection has been reported in all states and union territories. HIV
situation in the country is assessed and monitored through regular annual sentinel
surveillance mechanism established since 1992 by the National Aids Control
Organization (NACO), the Indian Government response to tackle the problem of
26
Introduction
HIV/AIDS in India under the Ministry of Health and Family Welfare in 1992. NACO
observes that the epidemic is moving outwards, from specific “high risk” groups and
urban centres to the general population and rural hinterland (NACO, 2007).
It is estimated that in 2007, there are 2.31 million people living with
HIV/AIDS in India with an estimated adult HIV prevalence of 0.34 percent. Out of
the estimated number of people living with HIV/AIDS (PLHA), 39% are females and
3.5% are children. Adults aged 15-49 years constitute 88.7 percent of the estimated
number of PLHA. The highest numbers of PLHA are in Andhra Pradesh and
Maharashtra, with nearly half-a-million PLHA each. Heterosexual mode of
transmission is still the predominant mode of HIV transmission in India (NACO,
2008a). Andhra Pradesh has an estimated adult HIV prevalence of 0.97% while
Karnataka and Maharashtra have estimated adult HIV prevalence less than 1%.
Except Andhra Pradesh with HIV prevalence of 1%, all other states have shown less
than 1% HIV prevalence among general population.
At the national level, a very high prevalence of HIV among high risk groups
comprising of injecting drug users (IDU) (7.2%), men who have sex with men (MSM)
(7.4%), female sex workers (FSW) (5.1%) & sexually transmitted diseases (STD)
clinic attendees (3.6%) are observed. The following table shows the states and
districts with high HIV Prevalence among different groups in 2007:
Table 1.1 States and districts with high HIV prevalence among different groups, 2007
States with high HIV
prevalence among IDU
States with high HIV
prevalence among
MSM
States with high HIV
prevalence among FSW
Number of Districts
with >15% HIV
prevalence among FSW
Maharashtra (24.4%), Manipur (17.9%), Tamil Nadu (16.8%),
Punjab (13.8%), Delhi (10.1%), Chandigarh (8.6%), Kerala
(7.9%), West Bengal (7.8%), Mizoram (7.5%) & Orissa (7.3%)
Karnataka (17.6%), Andhra Pradesh (17%), Manipur (16.4%),
Maharashtra (11.8%), Delhi (11.7%), Gujarat (8.4%), Goa
(7.9%), Orissa (7.4%), Tamil Nadu (6.6%) and West Bengal
(5.6%)
Maharashtra (17.9%), Manipur (13.1%), Andhra Pradesh
(9.7%), Nagaland (8.9%), Mizoram (7.2%), Gujarat (6.5%),
West Bengal (5.9%) & Karnataka (5.3%)
8 (FSW sites in Pune, Mumbai and Thane have shown > 30%
HIV prevalence among FSW)
Source: NACO, 2007
As the above table shows, at the state level, HIV prevalence among FSWs is very
high in Maharashtra (17.91%), followed by Manipur (13.07%), Andhra Pradesh
27
Introduction
(9.74%), Nagaland (8.91%) and Mizoram (7.2%). FSW sites in Pune, Mumbai and
Thane have shown > 30% HIV prevalence among FSW. Maharashtra is also one of
the states where high HIV prevalence is recorded among MSM. Among the STD
clinic attendees, Andhra Pradesh continues to show the highest prevalence (19.72%)
followed by Maharashtra (16.18%), Karnataka (7.15%) and Tamil Nadu (12.04%).
Highest prevalence of IDUs is from Maharashtra (24.4%) followed by Manipur
(17.90%) and Tamil Nadu (16.80%).
1.3 Various Issues related to HIV/AIDS in Prisons
As the above section indicates, Maharashtra is one of the states where prevalence of
HIV/AIDS is high especially among the high risk population especially the injecting
drug users (IDU), men who have sex with men (MSM) and the female sex workers
(FSW). Although the national HIV prevalence rate is 0.28 percent, owing to the high
population of the country, even a mere 0.1 % increase in the prevalence rate translates
into over half a million additional HIV positive cases.
The National Family Health Survey-3 (International Institute of Population
Sciences (IIPS) & Macro International, 2007) also observes that the Indian public is
not well informed about HIV/AIDS. All the above factors and the following factors
make it important to explore the knowledge, attitude, behaviour and understanding of
prevention about HIV/AIDS (KABP) of prisoners regarding HIV/AIDS.
1.3.1 Vulnerability & Risk Factors
i. High Risk Population
Some sections of the population are considered at higher risk to contract HIV
than others. The poor people living below the poverty line, the unemployed, and
illiterate people are some of these people. The poor are more likely to become
migrant labourers or commercial sex workers. Migration and displacement are
often associated with difficult living conditions, poverty and social exclusion, which
can facilitate risk behaviour in terms of sex, drug use and can have significant
negative impact on the overall health of individuals. In some regions of the world,
some migrants are actively involved in the sex business making themselves and their
clients vulnerable to contract the disease. When such migrants, ethnic minorities and
displaced persons come to prisons, they have limited access to health information
28
Introduction
(e.g. HIV/AIDS education) because of language barrier and appropriate cultural
forms. Moreover, after their release, they are usually deported to their home countries
where there may be limited or no access to prevention, treatment and medical care
services (Lines & Stover, 2005).
Apart from the above sections of the population, people living in areas which
are characterized by violence, high rates of crime and substance abuse are also
vulnerable to contract HIV. Substandard housing, overcrowding, unsanitary living
conditions are also likely to be plagued by unemployment, domestic abuse,
dysfunctional relationships, and a lack of security or stability. Moreover, HIV
education programmes may not reach the uneducated and the illiterate people, who
may have lower levels of HIV/AIDS knowledge and awareness. Finally, people in
marginalized communities are less likely to have access to heath care making them
more prone to untreated sexually transmitted infections (STIs). This again increases
the possibility of HIV transmission (Goyer, 2003; UNAIDS, 2000).
Age, race and gender are also significant predictors of HIV infection rates.
Young people are at high risk for HIV infection. Moreover, the presence of sexually
transmitted infection (STIs) increases the risk of HIV transmission. This is because
the presence of sores enables the virus (HIV) to enter the skin and thus untreated STIs
can increase the viral load in genital fluids (UNAIDS, 2000; UNDP, 1998).
As Goyer (2003) notes, many of the people who are likely to go to the prison
belong to the same group of people as described above. Thus, all these characteristics
combine to make the prison population at high risk for HIV infection prior to their
incarceration. Apart from these, the following pre-incarceration behaviour may render
one vulnerable to HIV/AIDS.
ii. High Risk Behaviour prior to Incarceration
There are several behaviours that prisoners might be involved in before
incarceration period, which places them at higher risks to contract HIV. These
behaviours are regardless of the environmental factors. These high risk behaviours for
contraction of HIV includes unprotected sex, particularly with multiple partners,
commercial sex work, or sex which takes place in exchange of drugs. Drug use is
considered as high risk behaviour. Several studies has been conducted in United
States, Brazil and Russia which shows that people has had unprotected sex with
29
Introduction
multiple partners prior to their incarceration and that there are also men who has had a
history of homelessness and selling drugs as a primary income source (Goyer, 2003).
iii. Special Target Groups and Vulnerability
Inside the prison, the following sections of people are considered as special
target group vulnerable to contract HIV:
a) Juvenile Prisoners: Juvenile offenders are at greater risk of contaminating
HIV than their adult counterparts, in situation where they are detained along
with adult offenders and thus fall prey to the sexual abuse causing them more
prone to HIV transmission. Also, young people are more often involved in
high risk drug using behaviour in prisons. In India, the Juvenile Justice (Care
& Protection of Children) Amendment Act, 2006 prescribes provisions for
reformation of young offenders till 18 years of age (The Gazette of India,
2006) and the Bombay Borstal Schools Act, 1929 provides punishment for the
offenders from 18 to 21 years of age. According to these laws, young
offenders are to be lodged to the Juvenile Justice Institutions and Borstal
Schools respectively. However, boys found to be too incorrigible or
unsociable to be kept in the Borstal School are transferred to the Juvenile
Section of the Yerwada Prison (The Gazetteers Department, n.d.). This places
them at higher risk for sexual exploitation by the hardened criminals and also
by the prison warders which may expose them to HIV.
b) Prisons Staff: Both prisoners and prison staff are at an increased risk of HIV
transmission because of unsafe prison environments. While conducting routine
searches of prisoners or prison living areas, prison officers may fall prey to
accidental needle stick injuries from hidden syringes. Health staff may also be
exposed to human blood or body fluids while conducting their professional
duties or through administering first aid. Apart from this, there are few
reported cases where male prison staff indulged in sexual activities with male
prison inmates (Goyer, 2003). Long term close association between male
prison staff and male prison inmates may lead to a sexual relationship between
them. Many such cases remain unreported because of the sensitivity of the
issue and severe implications for both prison inmate and staff. It is difficult to
estimate whether this occurs with or without consent since prison is a
30
Introduction
hierarchical institution. Thus prison staff is also at risk of contracting STDs
and HIV inside the prison if sex is unreported. Lack of awareness and their
risk perceptions are also contributing factors.
c) Women inmates: Women inmates are housed in separate prisons or wings,
which are away from the male wings. These are managed by lady prisons
officers. Hence, the chance of sex taking place between female inmates with
male inmates or male prison staff is unlikely.
d) Prison Conditions: Living conditions are deplorable in most of the world’s
prisons including even the richest and most developed countries. Prisons are
plagued by overcrowding, decaying physical infrastructure, lack of medical
care, guard abuse and corruption, and prisoner on prisoner violence. Poor
living conditions contribute to the deterioration of health of prisoners living
with HIV/AIDS. Disease is the most common form of death in prison. In
many countries, high rates of TB infection among prisoners are exacerbated by
prison conditions that increase the risk of wider transmission of TB.
Overcrowded living conditions, poor opportunities for personal hygiene and
sanitation, poor ventilation and natural lighting, and insufficient health care
measures often mean that the risk of acquiring TB for prisoners – including
multi drug resistant TB – is extremely high. Various international nongovernmental organizations such as Amnesty International, Human Rights
Watch and various regional bodies investigated and documented the living
conditions of prisoners, including the abuse of prisoners by prison authorities.
Responding to the poor living conditions in prison, a joint report by the WHO,
UNAIDS and UNODC (2006, p. 3) states that, “Effective action to address
HIV/AIDS must often be undertaken in the context of substandard or
antiquated prison conditions. Overcrowding, violence, inadequate natural
lighting and ventilation, and lack of protection from extreme climatic
conditions are common in many prisons of the world. When these conditions
are combined with inadequate means for personal hygiene, inadequate
nutrition, lack of access to clean drinking water, and inadequate medical
services, the vulnerability of prisoners to HIV infection and other infectious
diseases is increased, as is HIV related morbidity and mortality. Substandard
conditions can also complicate or undermine the implementation of effective
responses to HIV/AIDS by prison staff. Therefore, action to prevent the spread
31
Introduction
of HIV infection in prisons and to provide health service to prisoners living
with HIV/AIDS is integral to – and enhanced by – broader efforts to improve
prison conditions”.
e) Inadequate Prison Medical Facilities: Prison medical facilities are poorly
developed and inadequately staffed, in many central and district prisons,
vacancies for medical officers have not been filled. In some district prison and
sub jails, the medical officer position does not exist. The services of the
female doctor are not available to female inmates in many prisons. Health care
for prison inmates with STD/ HIV/AIDS is also very limited. Indian prisons
have a system where the prison medical officer is required to conduct a
physical examination everyday of all new admissions but it is not often carried
out and mostly remain limited to noting height, weight and identification
mark. In some prisons, the physical search for prohibited items conducted
during admission for security reasons is equated with a physical examination.
Also, on the day of admission itself, inmates are not likely to reveal their
sexual health problems due to many factors like lack of privacy, attitude of
doctors, stigma and fear. Due to these reasons, it is difficult to identify STDs
among inmates, unless they approach the prison medical doctors voluntarily
due to any health problem. Even after diagnosis, the prison medical officer
refers STD cases to the nearby government hospitals for further laboratory
testing and treatment. The prison department has to seek support from the
local police to escort the referred inmate to the hospital, which generally gets
delayed except in emergency cases, after testing there is once again a delay in
obtaining the test results from the government hospital. Due to these factors
STDs often remain untreated even if diagnosed. In cases of HIV positive
patients availing Anti Retroviral Treatment from the civil hospital, the
treatment is often irregular due to non-availability of guards in most occasions.
In the prison medical setting, there are few services such as counselling, drug
treatment or drug substitution programmes and primary health care for those
inmates who are drug dependent. Also, regular counselling and treatment
services for inmates who are already infected with HIV/AIDS or have full
blown AIDS case are not part of the existing prison health care services (Guin,
2007).
32
Introduction
There are various international agreements specifying the minimum standards
for the housing and treatment of prisoners. Many prison systems in high-income
and developing countries fail to meet these standards due to lack of financial
resources or lack of political and public interest in the well being of prisoners.
This affects the HIV/AIDS programmes and strategies.
iv. Risk Behaviour during Incarceration inside prisons
Prison inmates often indulge in several activities and behaviours that present risks of
HIV transmission or increase the vulnerability to HIV infection of prisoners.
a) Contaminated Needles, Injecting drug use, syringe sharing and HIV
transmission: Sharing of injecting equipment inside and outside of prisons is the
main factor determining levels of HIV infection among prisoners, mostly in
countries in which HIV infection in the general community is predominantly due
to injecting drug users. The probability of transmission of HIV from an infected
needle is extremely high. It is only the second means of transmission among the
non-sexual means of transmission. It is an activity that occurs in extreme secrecy,
making it difficult to draw a detailed picture of the nature and extent of drug use
in a prison (i.e. drug seizure quantities, discovery of needles / syringes, positive
urine testing rates). Patterns of drug use vary considerably between different
groups in the prison population, and between prisons in the same jurisdiction.
Despite challenges in data collection, it is generally accepted that drug use is a
common activity in prisons around the world. The fact remains that illicit drugs
get into prisons and prisoners consume them despite their illegality, the penalties
for their use and strict rules and regulations. Also a significant amount of money
and time are spent by the prison systems to stop their entry. Drugs are present in
prisons just as in the community, there are buyers and takers of drugs inside the
jails as well.
Also, particularly in countries where drug policies emphasizes
criminalization over rehabilitation, the sentencing practices for drug related
offences can lead to an extremely high incarceration rate amongst drug users and
addicts. In prison, addicts will find ways to continue their habit, but are less likely
to obtain clean syringes or disinfectants (Goyer, 2003). Many prisoners have a
history of drug use or are actively using drugs at the time of incarceration.
33
Introduction
In the Indian context, the use of injecting drug use within prisons might be
negligible compared to other forms of drug use due to difficulty in smuggling
needles and syringes into the prison. However, Singh (2007) notes that anecdotal
evidence from previous inmates of the Arthur Road jail (a jail in Mumbai) had
revealed that injecting drug use was common in the jail.
b) Unprotected sex in prisons: Mostly three aspects of unprotected sexual
activity make HIV a higher risk of transmission in prisons. Sex may be
consensual (anal intercourse), or it may be forced or coercive (rape). Together
with unprotected sex, the presence of sexually transmitted infections (STIs) also
makes one vulnerable to contract HIV. Anal intercourse and rape often result in
tearing leading to a higher risk of HIV transmission (Carelse, 1994). The
probability of transmission of HIV from anal intercourse is much higher for the
receptive partner than the insertive partner. This is because the acceptance of
semen into rectum allows for prolonged contact with mucous membranes
(Betteridge, 2004). Apart from this, the risk of transmission and acquisition of
HIV is greater among individuals who have a history of STIs (USAID, 1999). Sex
may also be used as a form of currency within the prison, a currency which may
be exchanged for money, protection, property or drugs.
Sexual activity in prisons is influenced by various factors such as whether the
accommodation is single-cell or dormitory, the duration of the sentence, the
security classification and the extent to which conjugal visits are permitted (Lines
& Stover, 2005). It has to be noted here that Indian prison does not allow conjugal
visits by law. Also, if the prison policy houses children and young people to stay
with adults, then the young prisoner becomes vulnerable to sexual abuse.
The undertrial prison population has a high chance of coming into
contact with large numbers of people within and outside the prison due to their
frequent releases, admissions and transfers. Also, their close association with key
players of the sex circuit such as sex workers, pimps, brokers, and clients who
operate outside the prison make them vulnerable to HIV infection. The practice of
men having sex with men is also not uncommon, but due to their short duration of
stay in prison it is difficult to practice (Lines & Stover, 2005; Goyer, 2003).
The long term convict prisoners may develop close emotional bindings
leading to sexual relationship with consent. Since the inmates have no outlets for
34
Introduction
heterosexual relationships within the prisons and overcrowding brings greater
physical proximity, there is a high possibility of having more men having sex with
men (MSM) in prisons including anal sex. Mostly this is situational, i.e. this is
limited to the time they are incarcerated. Since sodomy is illegal in Indian prisons,
MSM is not openly discussed due to fear of punishment from the prison
authorities and stigmatization. Thus there are no data available neither on its
occurrence nor on its frequency (Lines & Stover, 2005; Goyer, 2003).
Stigma attached to male homosexuality in many societies and in many
prisons may lead to discrimination by other prisoners and staff members. These
negative consequences make them more vulnerable to HIV infection as they do
not want to access safer sex measures such as condoms (in prisons that provide
them) for fear of identifying themselves as sexually active. Also, there is
prohibition against any sexual activity (whether consensual or non-consensual) in
many prison systems, which also act as barriers to prisoners to access safer sex
measures such as condoms. Several studies conducted in Australia, Sweden,
Austria, Spain, Belgium, Britain, United States, Philadelphia, Malawi, Zomba
have revealed that significant rates of risky sexual behaviour occur in prison
setting (Lines & Stover, 2005; Goyer, 2003).
c) Tattooing and body piercing: Tattooing, body piercing and other rituals is a
part of prison culture amongst incarcerated population in many countries like
Australia, Canada, Ireland, Spain, and United States. This involves breaking the
skin with a needle or other sharp instrument often leading to transmission through
sharing and reuse of the equipment. Since in many countries, tattooing and
possession of tattooing equipment is illegal and prohibited by prison authorities
and subject to punitive sanctions, this activity often takes place secretively in
extreme unhygienic conditions and in a hurry so as to minimize detection by
prison staff (Lines & Stover, 2005; UNAIDS, 2004). Finally, in resource poor
countries, many prisoner share razors for shaving which increase the likelihood of
exposure to blood borne diseases (UNAIDS, 2004).
d) Exposure to human blood and body fluids: HIV infection within prison may be
transmitted through any kind of exposure to infected human blood and body
fluids. This is applicable for both prisoner and prison staff, who may be exposed
35
Introduction
to infected human blood and other body fluid as a result of the following (Lines,
& Stover, 2005):
1 Assaults and fights either through blood or semen (consensual or forced sexual
activity). In case of non-sexual assault, HIV among prisoners may be
transmitted through violence, which may lead to open wounds and bleeding
(UNAIDS, 2004).
2 Accidental needle stick injuries from hidden or concealed syringes;
3 Carrying out professional duties (with medical staff), and
4 Providing first aid.
The above high risk behaviour inside the prison may be major causes of HIV
transmission in prisons. It is important to note that HIV/AIDS is associated with
many other diseases as explained below which may also deteriorate the health
situation of the prisoners.
1.3.2. HIV/AIDS Associated Diseases
a) TB Infection: Prisoners belonging to the poorer section of the society, those
dependent on drugs and alcohol or mentally ill people are at increased risk of
TB (UNAIDS, 2004). The most common form of TB is pulmonary where the
illness infects the lungs and the symptoms include coughing resulting in the
dispersion of infected sputum. TB can be contracted by inhalation of airborne
droplets of infected sputum. So in overcrowded prisons with small poorly
ventilated space, TB can be easily transmitted among the prisoners, and
prisoners who are living with the HIV virus fall a easy prey due to their weak
immune system. Also, many adults are TB carriers but does not develop any
symptom unless their immune system is affected, such as by infection with
HIV. Thus, an asymptomatic TB carrier infected with HIV becomes actively
contagious for the spread of TB infection in the rest of the prison population.
In this way, HIV causes an increase in the spread of TB among HIV- negative
people (Goyer, 2003).
There has been a steady growth of co-morbidity in prisons around the
world, i.e. increasing number of prison inmates with a combination of
diseases, typically TB, hepatitis and HIV. The level of TB in prisons has been
36
Introduction
reported to be 100 times higher than that in the civil population, accounting for
up to 25% of a country’s burden of TB.
India has one of the largest populations with TB in the world and
prisons in India report TB as a major health problem. Many inmates contract
the disease after entering the prison. At the Arthur Road Jail, HIV positive
prisoners were also being kept in the same barrack as those suffering from
TB1. With already weakened immunity systems, the acquisition of TB is in
any case a great risk for those living with HIV; being put in the same space
with TB patients greatly heightens the risk. The risk of the spread of TB is
heightened by poor and overcrowded prison conditions. Thus, high rates of
HIV and other infectious diseases like TB can lead to alarmingly high rates of
mortality among prisoners. In November 2004, the Mumbai edition of the
Indian Express reported that 18 of the 27 prisoners who died at the Arthur
Road jail in the previous six months had died of AIDS (Lines, 2008).
b) Hepatitis B/ Hepatitis C (HCV) Infection: Hepatitis B and C are two forms
of Hepatitis, which are transmittable through sharing of syringes and other
injection equipments. Hepatitis B can also be transmitted through unprotected
sexual activity or in any situation where blood or body fluids from an infected
person enters the body of a person who is not immune. A vaccine is available
to prevent Hepatitis B, but there is no vaccine to prevent Hepatitis C. HCV is a
degenerative liver disease, which is chronic in 85% people who contract it. It
can lead to serious secondary illnesses, disabilities, liver failure and death. In
some patients severe symptoms do not occur for 20 or 30 years. In many
countries the high rates of HIV infection among the prison population
are accompanied and exacerbated by high rates of HCV infection. Rates of
HCV infection in many prison systems are even higher than rates of HIV
infection.
Published studies of HCV in the prison setting include those from Australia,
Taiwan Province of China, India, Ireland, Denmark, Scotland, Greece, Spain,
England, Brazil, the United States and Canada. The vast majority of studies
have reported that between 20% and 40% of prisoners are living with HCV
1
Observation of the researcher during data collection during December 2006 for MPhil research study
on, “HIV/AIDS in Prisons: A Human Rights Perspective”.
37
Introduction
and within study samples, rates of HCV prevalence among prisoners who
inject drugs are usually two to three times higher than among prisoners who
have no history of injecting (Macalino et.al, 2004).
c) Sexually Transmitted Infections (STI): Sexually transmitted infections
(STI’s) are caused by bacteria, viruses or parasites. The presence of STIs in
prisons reflects the spread of these infections in the community. Although
most STIs’ are completely treatable, often they remain undiscovered and can
cause serious health problems for the prisoners. This is because a substantial
number of prisoners are engaged in sex work outside prisons (e.g. to finance
drug use), and much of the prison population come from high HIV prevalence
areas. Thus, the risk of transmitting STIs’ in prisons is high because of risky
sexual behaviour and lack of access to screening, especially when in many
areas of the world medication and treatment against STIs are not available.
People suffering from STIs are at higher risk of contracting HIV infection and
people living with HIV are more susceptible to STI due to their weak immune
function (Lines & Stover, 2005; UNAIDS, 2004).
1.3.3 Legal Issues and Non-Availability of Resources:
In countries where homosexuality is legal, viz. South Africa, New South Wales,
Australia, correctional authorities face civil liability if they do not provide condoms in
prisons. Thus, many prison systems in the world, including Australia, Brazil, Canada,
Indonesia, the Islamic Republic of Iran, South Africa, some countries from the former
Soviet Union, and a small number of prison systems in the United States, provide
condoms to prisoners (WHO, 2007).
In India, homosexuality is a punishable offence under Section 377 of the
Indian Penal Code. Although many ‘gay’ groups like Humsafar Trust, Naz
Foundation etc are fighting for the rights of homosexuals, it is still a taboo subject and
unacceptable by many. The fear and shame of being detected by family and society
often lead many men and women, who feel sexually attracted towards persons of their
same sex, to keep their sexual identity to themselves and eventually marry persons of
opposite sex with unhappy consequences for both partners (Moni, 1993). At the 17th
International AIDS Conference organized in Mexico from 3-8 August 2008, the
Indian Union health minister A Ramadoss, strongly campaigned for changing the law
38
Introduction
which makes homosexuality illegal. National Aids Control Organization (NACO)
estimates that India is home to 2.5 million MSMs (men who have sex with men) of
which 100,000 are at high risk of contracting HIV due to multi-partner and
commercial sexual practices. Already, 15% of this community has got infected with
the deadly disease (Sinha, 2008).
It is noteworthy to mention here that the Naz Foundation (India) Trust v.
Government of NCT, Delhi and Others [Writ Petition (Civil) No. 7455 of 2001],
challenged the validity of Section 377, India's anti-sodomy law, before a division
bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court.
The petitioner was represented by Anand Grover who is the founder member of the
Lawyers Collective HIV/AIDS unit. At present the matter is still sub judice.
arguments of the case has concluded and the order stands reserved (Lawyers
Collective, n.d.).
Also possession of illegal drugs is an offence under the Narcotic Drugs and
Psychotropic Substances Act 1985 (NDPS). Prison being a closed legal institution,
majority of prison officials cannot openly accept the occurrence of Men having Sex
with Men and drug use within prisons. Due to legal restrictions, the prisons
department is unable to make resources available for STD/HIV/AIDS prevention such
as condoms, water-based lubricants, sterile syringes, needles, bleach or other
disinfectants for cleaning the injecting equipment within the prison. The prison
officials also do not permit other organizations such as non-governmental
organizations to make these resources available, as it implies the existence of illegal
acts.
Efforts directed towards spreading HIV/AIDS awareness and initiatives
undertaken for HIV prevention in prisons are met with a framework of repressive
laws that actually fuel the growth of HIV in prisons. In 1994, the then IG Prisons,
Tihar Jail, Delhi, Dr. Kiran Bedi cited section 377 of the Indian Penal Code, 1860,
while refusing permission for distributing condoms in Tihar jail. Similarly, the
provision of HIV prevention services is hampered for injecting drug users (IDUs) by
the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). NDPS
criminalizes and marginalizes IDUs which make them unable to access healthcare and
other services. Drug users make up a significant portion of undertrial prisoners who
are repeatedly incarcerated for petty offences like consumption of drugs which results
in a vicious circle (Singh, 2007).
39
Introduction
1.3.4 Lack of Ethical Guidelines and Confidentiality
Confidentiality of medical information during imprisonment is difficult to
maintain and is often breached, especially if it concerns STD/HIV/AIDS. In some
prisons, confidentiality regarding HIV positive status could not be maintained mainly
due to special diet that inmates were subjected to. In one prison, ‘HIV positive’ was
marked on the medical files of the HIV positive inmates. Apart from the doctor, HIV
positive inmates were identifiable by the nursing staff in the prison and the police
guards who escorted the prisoners to the civil hospital when referred. Medical
personnel were not trained regarding the importance of privacy and confidentiality2.
Thus, there is a little understanding that prison inmates have greater need for privacy
because they live in closed community where stigmatization, suicide and violence are
common.
1.3.5 Lack of policies
The administration of the Prison is a State subject and each State has its own prison
manual. As all these State prison manuals are based on the Model Prison Manual of
1960, when there was no HIV, none of these State prison manuals include any
guidelines for HIV testing, consent, confidentiality and treatment. In the current
scenario, the Bureau of Police Research & Development (BPR&D) in the Model
Prison Manual 2003 and the National Policy on Prison Reforms and Correctional
Administration has mentioned that the prison hospital should have isolation rooms for
accommodating patients with infectious and contagious diseases (such as T.B.,
Leprosy and HIV/AIDS) (Bureau of Police Research & Development, 2003, p.39).
Apart from this slight mention of HIV/AIDS, there are no efforts to formulate policies
for management of HIV and AIDS patients within the prisons in the other documents
prepared by the BPRD, viz. Modernization of Prison Scheme. As a result, research
studies conducted in prisons by other institutions or organizations to know the
prevalence of STD/HIV/AIDS are often carried out without the appropriate pre and
post test counselling. Once diagnosed, there is no guideline on disclosure and on care
and support for those tested positive. In the absence of policies for HIV/AIDS
2
Observation of the researcher during data collection during December 2006 for MPhil research study
on, “HIV/AIDS in Prisons: A Human Rights Perspective”.
40
Introduction
prevention, care and support of HIV infected and AIDS patients, HIV positive
inmates are often sent to “isolation wards”, initially meant for patients suffering from
communicable diseases like leprosy, cholera, TB etc. In case of healthy HIV positive
inmates, who do not need to be isolated, this increases stigma, and exposes them to
TB if they are housed with infected TB patients. Although the Ministry of Home
Affairs framed the draft report on the National Policy on Criminal Justice, this report
does not include any issues related to HIV/AIDS in the prison system (Government of
India, 2007).
Apart from the above, the National Aids Control Organization, which is a
Government body and is responsible to tackle the problem of HIV/AIDS in the
country do not have any policy on Management of HIV/AIDS in the prisons. There
are also various international organizations, like the Joint United Nations Programme
on HIV/AIDS (UNAIDS), United Nations Development Program (UNDP), United
Nations Office on Drugs and Crime (UNODC), World Health Organization (WHO),
United States Agency for International Development (USAID) etc which are working
on HIV/AIDS in India with various population groups. A new policy framework
published by the UN Office on Drugs and Crime, the World Health Organization, and
UNAIDS provides important guidance for state authorities for implementing a
comprehensive response to HIV in prisons that is consistent with best practice and
state obligations under international law. In addition, the development of model
legislation provides an important and concrete tool for countries seeking to ensure
that their laws and policies facilitate, rather than hinder, action on HIV/ AIDS in
prisons (Jurgens and Lines, 2006, p. 154). Thus, although some policy framework are
in place, these are not yet adopted by NACO for the management of HIV/AIDS in
prisons.
1.3.6. Lack of Awareness and Knowledge on STD/HIV/AIDS
Awareness and knowledge regarding STD/HIV/AIDS is often found to be
negligible among the prison inmates and prison staff. Thus, inmates and prison staff
are rarely aware of the modes of transmission and preventive measures of STD/HIV,
and their own risk behaviour. Lack of confidentiality and stigma discourages both
inmates and prison staff from seeking information on STD/HIV/AIDS or harm
reduction measures for injecting drug use (Goyer, 2003).
41
Introduction
Thus, it is evident from the above that HIV/AIDS inside prisons is a serious
problem and has to be addressed immediately. Prisoners already serve the jail
sentence as a consequence of the crime committed by them and they cannot be doubly
punished by making them vulnerable to the deadly disease of HIV/AIDS.
1.3.7 Human Rights Framework
a. International Mechanisms in relation to HIV/AIDS and Human Rights
Under international norms, prisoners enjoy all human rights except those they
are necessarily deprived of as a fact of incarceration. There are two general categories
of instruments that protect human rights. Each poses different obligations on
governments. International human rights law is binding on governments.
International rules, standards, and guidelines are not law, and are therefore not
binding on governments (Betteridge, 2004).
International human rights laws
International human rights laws (for example, the International Covenant on
Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the
European Social Charter), while general in nature, are relevant to the rights of
prisoners in the context of the HIV/AIDS epidemic. States that have ratified or
acceded to these international laws are legally bound to respect, protect, and fulfill the
right of prisoners to equality and non-discrimination, life, security of the person, the
enjoyment of the highest attainable standard of physical and mental health, privacy,
and an effective remedy for violations of human rights; and the right not be subjected
to torture or to cruel, inhuman, or degrading treatment or punishment (Betteridge,
2004).
International rules, standards, and guidelines
Specific rules, standards, and guidelines apply to the situation of prisoners, and
impose both negative and positive obligations on states regarding prison conditions
and the treatment of prisoners. The most important of these instruments are as follows
(Betteridge, 2004):
1 Basic Principles for the Treatment of Prisoners
42
Introduction
2 Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment
3 Standard Minimum Rules for the Treatment of Prisoners
4 Recommendation No R (98) 7 of the Committee of Ministers to Member
States Concerning the Ethical and Organisational Aspects of Health Care in
Prison
Other additional international instruments that are relevant to the situation of
prisoners in the context of HIV/AIDS are as follows:
i. The World Health Organization (WHO) Guidelines on HIV Infection and
AIDS in Prisons, 1993: The World Health Organization (WHO) has issued technical
recommendations for the management and prevention of HIV infection in prisons in
two separate occasions, 1987 and 1993. The 1993 WHO Guidelines emphasize
voluntary testing, confidentiality, non-discrimination of HIV-positive inmates,
availability of the means of prevention, and access to treatment equivalent to that in
the community. The guidelines provide standards from a public health perspective.
The guidelines were framed in the expectation that prison authorities will adapt the
guidelines to meet their local needs, to prevent HIV transmission in prisons and to
provide care to those affected by HIV/AIDS in prisons.
ii. International Guidelines on HIV/AIDS, 1996:
A section in Guideline 4 of the International Guidelines on HIV/AIDS and Human
Rights specifically talk about the kind of measures the prison authorities should take
in handling the issue of HIV/AIDS. It highlights that prison authorities should take all
necessary measures, including adequate staffing, effective surveillance and
appropriate disciplinary measures, to protect prisoners from rape, sexual violence and
coercion. It should also provide prisoners (and prison staff, as appropriate) with
access to HIV related prevention information, education, voluntary testing, means of
prevention (condoms, bleach and clean injection equipment), treatment, care and
voluntary participation in HIV related clinical trials. Stressing about confidentiality,
the section also says that the prison authorities should prohibit mandatory testing,
segregation and denial of access to prison facilities and privileges. There should be
43
Introduction
release programmes for HIV positive prisoners and compassionate early release
should be considered for prisoner living with AIDS.
iii. United Nations General Assembly Special Session on HIV/AIDS (UNGASS),
June 2001: Respect for human rights in the context of HIV/AIDS was at the center of
the UNGASS Declaration of Commitment. Governments made an unprecedented
commitment during the United Nations Special Session on HIV/AIDS in 2001 to
halting and reversing the epidemic by 2015. Member States recognized the HIV/AIDS
epidemic as a global, economic, social and development crisis and agreed on the need
to address HIV/AIDS by strengthening respect for human rights and, in particular, the
rights of those most vulnerable to infection, including women and children. The
Declaration identified goals and targets based on human rights law and principles in
four areas: prevention of new infections, provision of improved care, support and
treatment for those infected with and affected by HIV/AIDS, reduction of
vulnerability, and mitigation of the social and economic impact of HIV/AIDS.
Additionally, the UNGASS Declaration of Commitment acknowledged the
importance of monitoring and accountability in the context of HIV/AIDS and called
for the strengthening of monitoring mechanisms for HIV/AIDS-related human rights.
(UNGASS, 2001).
iv. The Dublin Declaration on HIV/AIDS in Prisons in Europe and Central Asia,
2004 was initiated by the Irish Penal Reform Trust and written in collaboration with
experts from seven other countries. It outlines an international consensus on the rights
of prisoners to HIV prevention and treatment and entrusts the responsibility on the
governments to meet these agreed standards. It also provides a framework for action
to address the prison HIV crisis based upon best practice, scientific evidence and
human rights. The Declaration was endorsed by over 90 NGOs and experts from more
than 20 countries (The Dublin Declaration on HIV/AIDS in Prisons in Europe and
Central Asia, 2005).
v. Currently, the global response to tackle HIV is geared towards a massive scaling up
of prevention, treatment and care interventions. At the 2005 World Summit and at the
2006 High Level Meeting on AIDS, Governments committed to pursue all necessary
efforts towards the goal of universal access to comprehensive prevention
44
Introduction
programmes, treatment, care and support by 2010. In support of this, substantial
additional resources to fund an expanded response have become available, including
through the Global Fund to Fight AIDS, Tuberculosis and Malaria (WHO, 2007).
b. National Mechanisms in relation to HIV/AIDS and Human Rights
i. National Aids Control Program and the National Aids Control Organization
Shortly after reporting the first AIDS case in 1986 in India, the Government of
India established a National AIDS Control Program (NACP), which was managed
by a small unit within the Ministry of Health and Family Welfare. The program’s
principal activity was then limited to monitoring HIV infection rates among risk
populations in select urban areas.
In 1991, the strategy was revised to focus on blood safety, prevention among
high-risk populations, raising awareness in the general population, and improving
surveillance. A semi-autonomous body, the National AIDS Control Organization
(NACO), was established under the Ministry of Health and Family Welfare to
implement this program.
This “first phase” of the National AIDS Control Program lasted from 1992 1999. It focused on initiating a national commitment, increasing awareness and
addressing blood safety. It achieved some of its objectives, notably an increased
awareness. Professional blood donations were banned by law. Screening of donated
blood became almost universal by the end of this phase. By 1999, the program had
also established a decentralized mechanism to facilitate effective state-level
responses. However, performance across states remained variable.
The second phase of the NACP was from 1999 to March 2006. Under this
phase, India continued to expand the program at the state level. Greater emphasis was
placed on targeted interventions for high-risk groups, preventive interventions among
the general population, and involvement of NGOs and other sectors and line
departments, such as education, transport and police. Capacity and accountability at
the state level continued to be a major issue. Interventions were scaled up to cover a
higher percentage of the population, and monitoring and evaluation were
strengthened.
45
Introduction
The Government of India has now developed the third National AIDS
Programme Implementation Plan (2007-2012). The primary concern of NACP–III
is to halt and reverse the epidemic in India over the next five years. The programme
hopes to achieve this through a number of measures – coverage of high-risk groups
with targeted interventions, scaled up interventions for the general population. Placing
highest priority on preventive efforts, NACO mentions that sex workers, men-whohave-sex-with-men and injecting drug users have the highest risk of exposure to HIV
and will receive the highest priority in the intervention programmes. The second high
priority in the intervention programmes was accorded to long-distance truckers,
prisoners, migrants (including refugees) and street children (NACO, n.d.). Thus,
although prisoners are given high priority, they are only given a second high priority.
Also there is no comprehensive plan to deal with HIV/AIDS in the prisons in the
NACP-III.
ii. The HIV/AIDS Bill 2005
The Lawyers Collective HIV/AIDS Unit drafted the HIV/AIDS Bill 2005. The
drafting of the HIV/AIDS Bill began in May 2002, with an “International Policy
Makers Conference on HIV/AIDS”, in New Delhi. At this meeting, the Lawyers
Collective HIV/AIDS Unit highlighted the need for legislation on HIV/AIDS. The
then Rajya Sabha member, Shri Kapil Sibal, supported this idea and convened an
Advisory Working Group (AWG) on the Draft Legislation on HIV/AIDS chaired by
the project director of NACO (Lawyers Collective HIV/AIDS Unit, 2008).
Special Provisions: The Bill specifically recognizes certain rights for women,
children and persons in the care and custody of the state, who due to social, economic,
legal & other factors find themselves more vulnerable to HIV and are
disproportionately affected by the epidemic. Prisoners are provided with specific
access to risk reduction strategies, counselling and health care services. The Bill
also recognizes the link between sexual violence and HIV and provides for
counselling and treatment of sexual assault survivors, and directs the setting up of
sexual assault crisis centres.
The Bill has been pending with the government despite the repeated promises
made by the Health Minister to table the Bill in Parliament. However, it has been
46
Introduction
stalled with the Law Minister since August 2007. There is thus an urgent need for the
community and the civil society to build momentum and support for the immediate
passing of the HIV/AIDS law. To this effect, in a meeting hosted by Indian Network
for People Living with HIV, Lawyers Collective HIV/AIDS Unit (LCHAU) and
supported by Action Aid India and World Vision, on 17 May 2008, several positive
people’s networks and civil society organisations working with women, children and
vulnerable communities from across the country came together and formed the
National Coalition in support of the HIV/AIDS Bill. The National Coalition actively
engages in advocacy efforts to promote and ensure passage of the proposed
HIV/AIDS Bill (Lawyers Collective HIV/AIDS Unit, 2008).
iii. HIV Jurisprudence from the Indian Judiciary
The Indian Judiciary has been giving landmark judgements regarding the status of
HIV positive people in India. In the first HIV case heard by the Indian court [D'Souza
v. State of Goa, AIR 77(11), 355-61 Bombay High Court 1990], the Bombay High
Court ruled in favour of isolation of AIDS patient, but required that people with HIV
who were detained be given a hearing at some point in the process. However, the
Supreme Court of India in Common Cause v. Union of India (AIR 929 SC 1996)
issued an important public policy ruling affecting the storage of blood in the country.
The Court ordered governments at the central and state level, as well as the National
AIDS Control Organization, the main public institution handling HIV/AIDS policy, to
implement a series of changes.
A year after the Supreme Court’s judgment in Common Cause, the Bombay
High Court made a historic ruling in a labour law case (MX of Bombay v. M/s ZY, AIR
406 BOM 1997), that gave important protection to people with HIV. In this case, the
court referred an extensive array of literature on HIV/AIDS, including reports from
the World Health Organization and medical evidence from India and abroad. Relying
in part on these decisions, the Bombay High Court concluded that as long as an
individual’s HIV status does not interfere with her / his job performance, an employer
cannot consider an applicant or a present employee unfit for the position (Krishnan,
2003).
Apart from these, the High Court of Assam ordered government agencies
working on AIDS to act with more transparency and accountability to the public. The
47
Introduction
High Court in Kerala directed NACO to release its work and findings on AIDS to the
public. An interim order by the High Court of West Bengal granted compensation by
the Indian Navy to a family for a blood transfusion performed in a military hospital
that resulted in the wife of a naval officer contracting AIDS (Krishnan, 2003).
In 1998, Sahara House, a centre for Residential Care and Rehabilitation filed a
PIL in the Supreme Court, seeking directions against the State and its machineries that
no person infected with HIV/AIDS could be denied treatment in state run hospitals. A
similar PIL was filed by the Sankalp Rehabilitation Trust in 1999 through Lawyers
Collective in the Hon’ble Supreme Court, as there were a large number of people
living with HIV/AIDS who were denied medical treatment in public hospitals on the
ground that the person is HIV-positive or is suspected to be HIV-positive. On 1st
October, 2008, the Hon’ble Supreme Court passed interim directions and directed the
State Governments and NACO to implement the interim directions in a timely fashion
(Sahara House v. Union of India, [W.P, (C) No. 535 of 1998]; Sankalp Rehabilitation
Trust V. Union of India, [W.P. (C) No. 512 of 1999]
iv. Initiatives Taken by the National Human Rights Commission
The National Human Rights Commission (NHRC) has taken up various
initiatives to protect the Human Rights of people living with HIV/AIDS. With regard
to access to medical treatment facilities and education, NHRC secured proper
medical treatment to an AIDS patient at a Government Hospital in Delhi. In the light
of this case, the Commission directed that in medical cases dealing with HIV positive
patients, hospitals should offer proper treatment to the poor patients.
The Commission in partnership with other key agencies (National AIDS
Control Organisation, the Lawyers Collective, the UN Children’s Fund and the UN
Joint Programme) organized the National Conference on Human Rights and
HIV/AIDS in New Delhi in November 2000. The recommendations emerging from
the conference were formulated as action points. Some of these action points were on
consent and testing of HIV, confidentiality, discrimination in health care and
employment, women in vulnerable environments, children and young people, people
living with HIV/AIDS (PLWHA), marginalised populations etc. These action points
responds to the issue of HIV/AIDS both on national and State levels, in reference to
all partners, including the international and domestic non-governmental organisations,
48
Introduction
foreign governments and multilateral agencies, credit institutions, the business
community/ private sector, employers’ and workers’ associations, religious
associations and communities. Another purpose of the action points is to complement
the International Guidelines on HIV/AIDS and Human Rights with practical solutions
in the Indian context. Based on the deliberations of the National Conference, systemic
recommendations on various aspects of ‘Human Rights & HIV/AIDS’ were sent to
the concerned authorities in the Central Government, in various States, NGOs and
other key stakeholders.
The Commission mounted a multi-media campaign to disseminate
information on the Human Rights and HIV/AIDS to various target groups. In this
direction, the Commission published 'Know Your Rights' series on Human Rights and
HIV/AIDS in collaboration with the National Academy of Legal Studies and
Research University (NALSAR), Hyderabad and produced a short duration film
entitled ‘HIV/AIDS – Myth and Reality’ from a Human Rights perspective in
partnership with Doordarshan (National Human Rights Commission, 2006).
c. Ethical Issues
Research with human participants raises ethical concerns because people accept risks
and inconvenience primarily to advance scientific knowledge and to benefit others.
Although some research offers the prospect of direct benefit to research participants,
most research does not. The following ethical issues have to be simultaneously
observed while conducting research in prisons, especially of prisoners living with
HIV/AIDS (Williams, 2008):
i. Informed Consent and Testing: Before a person is tested for her/ his HIV status,
full and informed consent should be taken which would include her/him being
counselled both before and after testing. In India, mandatory testing was initially
adopted. But after the Goa Public Health amendment Act, 1986, the Indian
government now clearly favours a policy of voluntary testing. Also, the NACO policy
encourages voluntary testing and mandates pre and post test counselling (NACO,
2007). However, the reality differs, both because of infra-structural reasons and
because of a low priority being given to counselling and consent.
ii. Consent & HIV/AIDS Research: There are mainly two types of research:
biomedical and behavioural. In both, consent plays an important role. To seek a
49
Introduction
person’s participation in the research, the researcher should fully inform the
prospective participant of various factors such as the risks and benefits that the
research may expose the participant to, the absence of any monetary or material
inducement, the purposes of the research, the organizations funding and conducting
the research, the duties and responsibilities of the researcher, the manner of keeping
records and the guarantee of confidentiality.
iii. Confidentiality vs. Disclosure: The debate over this issue has two sides: the
prisoners’ rights to keep medical information confidential and the correctional
system’s perceived moral and legal responsibility to protect its staff and other
inmates, and the general public from HIV/AIDS infection. The argument put forward
to maintain confidentiality is that the infected prisoner may suffer ostracism, threat,
discrimination and differential treatment both within and outside the prison.
On the other hand, the disclosure policy is required for better treatment for prevention
measures etc and the right of the correctional personnel to know that she/he is dealing
with an inmate who is carrying the disease. Correctional system should provide for
clear rules as to who should receive the information.
iv. Segregation and Mainstreaming: Decision regarding housing of the HIV/AIDS
prisoners is a critical and difficult issue to be tackled. Arguments have been advanced
that HIV/AIDS prisoners may exhibit reckless and irresponsible behaviour. They may
set out to deliberately infect others. However, instead of a blanket segregation, the
prisoner may be segregated by evaluating the individual case based on the prisoners’
medical status, need for protection, and likelihood of engaging in behaviours that may
place others at risk (Somasundaram, 1997).
1.4 Prevalence of HIV/AIDS in Prison
1.4.1 Prevalence of HIV/AIDS in Prison: Global Scenario
Prevalence of HIV/AIDS in prisons has been found all over the world. HIV
surveillance has been the most common form of HIV research in prison. However,
much of the data regarding HIV prevalence in prisons comes from high-income
countries. Information about low and middle income countries is more limited. When
data do exist, they tend to be quite varied and unsystematic. Additionally, in many
50
Introduction
cases the existing data are not recent enough to provide an accurate picture of the
current situation in prisons (Dolan et al. 2004).
An extensive literature review regarding the prevalence of HIV/AIDS in
prisons was conducted by the World Health Organization (2007) in various regions of
the world. In Eastern Europe and Central Asia, a review of injecting drug users and
HIV infection in prisons found HIV prevalence data for all countries, with the
exception of Bosnia, Croatia, Turkmenistan and Uzbekistan. Lower HIV prevalence
was found in prisons in Central Europe, such as in Poland, Czech Republic, Hungary
and Bulgaria, and a much higher prevalence in some of the states of the former Soviet
Union – in particular the Russian Federation and Ukraine, but also Lithuania, Latvia
and Estonia. HIV is also a growing problem in prisons in some of the states of Central
Asia. In South and South East Asia, high prevalence rates are being experienced in
some of the countries of this region like Islamic Republic of Iran, Indonesia, Vietnam
and Malaysia, while evidence from India, Pakistan and Thailand also suggests high
rates of HIV among prisoners. The Philippines was the only country for which a study
reporting zero prevalence was located. In East Asia and the Pacific, overall, little
research was done and most of the data available was for China, and that too between
eight and ten years old. In Latin America, HIV prevalence among prisoners in Brazil
and Argentina was reported to be particularly high. Rates reported from studies in
Mexico, Honduras, Nicaragua, and Panama were also high, although generally lower
than in Brazil and Argentina. In the Caribbean, only a small amount of information
about HIV prevalence in prisons in this region was available. However, rates reported
from Cuba, Jamaica, and Trinidad & Tobago ranged from 4.9 to 25.8%, suggesting
that prevalence among prisoners in this region might be high. In Sub-Saharan Africa,
very high prevalence rates were reported for countries in southern Africa, such as
Zambia and South Africa and in several western African countries such as Cote
d’Ivoire, Gabon, Burkina Faso, Nigeria, and Cameroon. However, in other countries,
such as Madagascar, Somalia, Senegal, Mauritius, and Niger, low prevalence was
found. Much of the information on prevalence was more than five years old, so it was
possible that it did not accurately reflect the current situation of HIV prevalence in
African prisons. In North Africa and the Middle East, one study in Yemen in 1998
found an HIV prevalence rate among a relatively small sample of prisoners of 26.5%.
Most other countries for which data was found recorded prevalence of less than one
percent. Very little is known about the situation of injecting drug use and HIV among
51
Introduction
IDUs in prisons in this region. Extensive data exist from many studies undertaken in
Western Europe, Australia, Canada, and the United States (World Health
Organization, 2007, p. 15-20).
Thus, it is clear from the above that HIV infection is a serious problem in
prisons throughout the world and should be urgently addressed.
1.4.2 Prevalence of HIV/AIDS in Prisons: Indian Scenario
Data regarding the prevalence of HIV/AIDS in Indian prisons are very few. A
case study conducted at the Mysore jail in Karnataka – a state with one of the highest
prevalence in India – found that the seroprevalence rate was highest among female
inmates, at 9.5%, and was 25% amongst inmates who were also commercial sexual
workers (Nagaraj et. al. as cited in Goyer, 2003). Apart from these, a study of 377
prisoners in three prisons in India found that 6.9% were living with HIV, all of these
individuals being originally from Thailand and Myanmar (Pal et.al. as cited in Lines
& Stover, 2005). In 1991, blood samples were collected from 178 inmates of the
district prison in Surat, Gujarat and 22 (12.3 %) of the inmates were found to be
positive for VDRL (Venereal Diseases Research Laboratory) Test and 9 (5.0%) tested
positive for HIV (Kosambiya, 1993). Although exact estimates on prevalence of HIV
amongst prisoners is not available, “a bag of the envelope calculation” will suggest
that what is commonly present outside the portals of the prison walls should be
present inside (Somasundaram, 1997).
The review of literature by Dolan (2004) revealed that only one study in India
found no Injecting Drug Users (IDUs) in one prison while another found about three
inmates (1.2 percent) reporting a history of injecting drug use (n=249). Another
Indian study found 4.9 percent of inmates were IDUs in 1997 and this declined to 0.8
percent in 2000. In 1993, 488 IDUs in India who had recently been institutionalized
for drug use were tested. The largest centre was Manipur Central Jail and of those
tested, 80% were HIV positive (UNODC, 2007).
According to the Prison Statistics India Report 2006, the total number of jail
inmates as on December 31st 2006 in the country were 3,73,271 to the available
capacity of 2,63,911; Uttar Pradesh topping it with 66,669 inmates. Maharashtra
houses the third largest number of prisoners (26,388 prisoners) in 36 jails in the State.
Prisons in India are still governed by the century old Prisons Act 1894 and the
Prisoners Act 1900 (National Crime Records Bureau, 2006).
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Introduction
From the above, it may be said that data on the prevalence of HIV/AIDS in
Indian prisons are very few. However, the data from the National Crime Records
Bureau (2006) clearly shows that there is overcrowding in the prisons of India. It is
also to be noted although the NACO considers Female Sex Workers, Men having Sex
with Men, Eunuch / Trans-genders, Injecting Drug Users, Long Distance Truckers
and male migrants as high risk groups, it didn’t include prison inmates as one of the
high risk population for the HIV Sentinel Surveillance Round 2008 (NACO, 2008b;
International Institute of Population Sciences (IIPS) & Macro International, 2007).
Thus, in a situation of appropriate surveillance studies in prisons, overcrowding and
ignorance regarding HIV/AIDS among the general population, it is quite apparent that
HIV/AIDS may be quite prevalent in various prisons in India.
To conclude, it may be said that there are various factors which make the study of
HIV/AIDS in prisons important. The various theoretical models regarding risk
behaviour in prisons highlight the fact that HIV can be a serious issue inside the
prison because of the risk behaviours prison inmates engage in either while inside the
prison or import from outside. The section on health scenario in Indian jails make it
clear that although various measures have been taken to address the health issue in
prison, mostly it has remained on paper. Although various recommendations have
been suggested by the Supreme Court, High Courts, NHRC and SHRCs, there is no
proper mechanism to monitor the implementation of the recommendations. NHRC,
which is itself a recommendatory body, can only recommend and little can it do for
the follow up of its own recommendations. HIV/AIDS can also become a serious
issue in a situation where the prison condition is non conducive to a healthy
atmosphere. The details regarding the HIV/AIDS gives an account of how the disease
transmits and how much time it takes for someone to lead a healthy life. This aspect is
important as possible intervention can be introduced during the time when a person is
infected till he is affected by full blown AIDS. The next section on the various issues
which makes prison inmates vulnerable to HIV/AIDS inside the prison is important as
again specific intervention strategies can be planned for the prison inmates regarding
HIV/AIDS. The final sections on the prevalence of HIV/AIDS in prisons in various
parts of the world including India makes it a reality that HIV/AIDS do really exists in
prisons although there is a dearth of data regarding this. Thus, in these situations, the
53
Introduction
present PhD attempted to study the vulnerabilities and risk factors of prison inmates
in terms of the knowledge, attitude, behaviour and understanding of HIV/AIDS
prevention. The next chapter reviews the various literature available related to
HIV/AIDS in prisons.
54