The paternalistic approach to children and adolescents in India impacts adversely on the rights of young persons to receive accurate, scientific and timely information related to sex and sexual health, on their right to confidentiality and to make other decisions on their own. This needs to change, say Atiya Bose and Kajal Bhardwaj of the Lawyers’ Collective

The impact of the HIV epidemic on children has been complex and diverse. Recognising this, the term ‘Children affected by HIV/AIDS’ has universally come to mean all children who have a parent or guardian living with HIV/AIDS, those who have lost a parent or guardian to AIDS, those who live in households fostering children orphaned by AIDS, or those who are themselves living with HIV/AIDS.

All of the issues that arise for people living with HIV/AIDS (PLHA) - issues of discrimination, consent vis-à-vis testing policies and the preservation of confidentiality - are compounded in the case of children and young people. This is because laws relating to children in India are paternalistic, based on the view that persons below a certain age do not possess the ability to make certain decisions.

In most Indian laws, persons below the age of 18 are referred to as minors, which outlook completely discounts the age-specific needs of children and adolescents. In the context of HIV, children and young people are not recognised as persons who can or should have access to sexual or general health services without a guardian. This compromises their right to confidentiality, as well as denies them the ability to make choices about their lives, including consenting to tests and treatment. It also completely ignores the large percentage of children who live alone or on the street, and fend for themselves, away from any adult supervision.

The impact of HIV and AIDS related discrimination is significantly felt by children in educational and institutional settings such as orphanages, juvenile homes etc. This issue was highlighted several years ago by the expulsion of two HIV-positive children from a school in Kerala prompting a Kerala government order prohibiting such discrimination. Since then, several such cases have come to light of children being denied access to schools or orphanages.

Other discriminatory practices in India such as the denial of sexual health information, the promotion of abstinence-only approaches, perpetuation of gender and sexual stereotypes have put minors, especially youth, at an increased risk of HIV. Children in families also face issues relating to inheritance, property rights, guardianship and adoption in the event of the illness or death of the parent/guardian.

Another area of concern in the context of children is sexual abuse, which is seen as a primary factor responsible for transmission of the HIV virus to a child. In India, a large percentage of children (figures vary from 47% to 76%), especially girls, have reported sexual abuse. However, the law in India still does not specifically recognise the crime of child sexual abuse.

The Indian State has interpreted its protective role for children and minors living outside family structures, or in violent situations, as limited to providing for their institutionalisation. This policy has contributed significantly to discrimination as it places minors in positions of extreme powerlessness.

This needs to change and mechanisms must be adopted that first and foremost view children as persons who have inherent, independent rights and are capable of exercising them. Legislation related to children must enable children and adolescents to exercise their rights in situations where hitherto they have not been able to do so. It is only after this re-conceptualisation that effective strategies can be put in place to change the circumstances that leave children and young people vulnerable to HIV.

Ban on sex education

Recently, several states, including Karnataka, Maharashtra, Rajasthan, Madhya Pradesh and Chhattisgarh, have announced that they are considering the banning of sex education in schools. Sex education is of particular importance in addressing child sexual abuse, in equipping young persons to protect themselves from unwanted and forced sexual contact, unwanted pregnancies and sexually transmitted diseases and to make informed decisions about their lives, sexuality and health. The denial of information to a child or a young person that is critical to her, and that affects her or his sexual and reproductive health, is a violation of her or his right to life and health.

The right to life and health is enshrined in the Indian Constitution as well as various international covenants and agreements. The Committee on Economic, Social and Cultural Rights (under the International Covenant on Economic, Social and Cultural Rights) in its General Comment No 14 on ‘the right to the highest attainable standard of health’ and the Committee on the Rights of the Child (under the Child Rights Convention) in its General Comment No 3 have specifically recognised the obligation of the government to provide sex education and information and have discussed the issue of sex education as a component of the rights to life and health.

The responsibility of the Indian State to ensure safe and proper health care to its citizens has been established in several cases. The Supreme Court has also relied on Article 21 to provide relief to citizens who have suffered due to inadequate or unsafe medical services provided by the State regardless of the fact that these were provided free of cost. The right to health includes the right to health information; sexual and reproductive education, in particular relating to HIV/AIDS should form an integral part of any instruction provided by the State to its citizens for the responsible exercise and proper enjoyment of their rights.

In terms of the right to receive accurate information, the Supreme Court has held that the right of free speech and expression guaranteed by Article 19(1)(a) includes the right to receive and impart information as well as the right to be educated and entertained. In one case, the court stated that, “one sided information, disinformation, misinformation, and non-information all equally create an uninformed citizenry which makes democracy a farce where the medium of information is monopolised either by a partisan central authority, by private individuals or by oligarchic organisations…”.

The basic right to education previously recognised under Article 21 and now enshrined in Article 21A, would also include access to education and information on sexual health. The Supreme Court has stated that, “Education should…be co-related to the social, political or economic needs of our developing nation… and it should act as an instrument of social change. Education system should be so devised as to meet these realities of life.” The instruction or curriculum should be so designed as to be gender neutral and sensitive and free from stereotypes. This basic right to education also implies the right of citizens, regardless of age, to receive information.

The parameters of the rights of life, health, education and information in the Indian Constitution read with the directive principles of state policy and international human rights conventions, establish the right of children and young persons to receive accurate, scientific and timely education and information related to sex, sexuality and sexual health

Atiya Bose is media and communications officer and Kajal Bhardwaj is head of the technical and policy unit at the Lawyers Collective HIV/AIDS Unit. The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realisation that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by or vulnerable to HIV and undertakes advocacy and research initiatives related to law, rights and HIV.

© Lawyers Collective HIV/AIDS Unit www.lawyerscollective.org

Infochange News & Features, February 2008