SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.” (See Legal Duties: Ailen)” However, in coming to this conclusion, the Supreme Court also entered into a discussion of the nature of marriage and of the “right to marry” and examined the right of confidentiality in the context of marriage and stated that, “Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on on this planet. Mental and physical health is of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally health children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce.[sic]” Examining various marriage and divorce laws, the Court found that the emphasis in practically “all systems of marriage is on a healthy body with moral ethics” and that divorce on the grounds that one of the spouses was suffering from a venereal diseases is recognized in nearly all such laws in India. Holding that the person suffering from such disease has the moral and legal duty to inform the prospective spouse of the condition, the Court held further that “the right to marry and duty to inform about his ailment are vested in the same person. It is a right in respect of which a corresponding duty cannot be claimed as against some other person. Such a right, for these reasons also, would be an exception to the general rule that every "RIGHT" has a correlative "Duty." Moreover, so long as the person is not cured of the communicable venereal disease or impotency, the RIGHT to marry cannot be enforced through a court of law and shall be treated to be a “SUSPENDED RIGHT”. Thus, the Supreme Court did not examine situations where the prospective spouse may consent to such a marriage or may him or herself be living with the same disease and instead suspended the right to marry for persons living with HIV and stated that the infringement of such a suspended right cannot be compensated in tort or in law. The Court further quoted provisions of India’s Penal Code that punish the negligent and malignant spreading of disease, 81 and noting that “if a person suffering from the dreadful disease "AIDS", knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences” in the Indian Penal Code. Thus, “The above statutory provisions thus impose a duty upon the appellant not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, to the woman whom he marries apart from being an offence.” In such a situation the Court also held that the Hospital’s silence in such a case would have made them party to the offence. Stating that people living with HIV deserved full sympathy and are entitled to all respects as human beings, the Court re-affirmed that such persons cannot and should not be avoided as this would have a bad psychological impact upon them; nor can they be denied government jobs or service. “But, "sex" with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object.” A petition requesting a clarification from the Supreme Court on the observations noted above relating to the right to marry was filed. The Supreme Court held that the decision was 81 These provisions are discussed in greater detail in Chapter 2. 30
concerned with declaring that the hospital was allowed to reveal Mr. X’s HIV status to the relatives of the girl he was to marry and that she had a right to know his status. “If that was so, there was no need for this Court to go further and declare in general as to what rights and obligations arise in such context as to right to privacy or confidentiality or whether such persons are entitled to be married or not or in the event such persons marry they would commit an offence under law or whether such right is suspended during the period of illness.” The Supreme Court accordingly held that the observations related to the right to marry were “uncalled for.” 82 In Nepal, a leading Supreme Court case dealt with issues related to privacy of women, children and persons affected by HIV. In Forum for Women, Law and Development v Government of Nepal and others (2006) 83 the Supreme Court of Nepal passed judgment in relation to the right to privacy and confidentiality in sensitive cases such as those related to persons living with HIV and violence against women or children. 84 The court referenced the right to privacy as enunciated in several international treaties - Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, Article 16 of the Convention on the Rights of the Child. Based on Section 9(1) of the Treaty Act, 1990, the court added that as “Nepal has become a party to the international human rights Conventions and accepted the obligations imposed by them, there is no dispute that the State must implement those obligations by incorporating them in the Constitution, statutes, law and rules and also various programmes.” It stated that as Nepal had signed the United Nations General Assembly Special Session Declaration of Commitment on HIV/AIDS, 2001, which required countries to make laws to ensure the rights of persons living with HIV, this would also include confidentiality/ privacy measures and even though such declarations did not carry the binding force of treaties they should be implemented in spirit by relating them to the treaties. It also pointed out that this right was enshrined in Article 22 of Nepal’s previous Constitution. The court also noted that this right found expression in relation to judicial proceedings in Nepal’s Children’s Act, 1992 wherein Section 49 placed limitations on the publication of litigations involving children in the press without necessary authorization. Similarly, recent changes in judicial procedural rules also provided for in camera proceedings in certain circumstances, such as cases of alleged rape and trafficking (although the court expressed grave distress at the non-implementation of these requirements). However, there were no specific provisions to protect the privacy of persons living with HIV who were involved in litigations. The petitioner sought the issuance of a court order for immediate enactment and enforcement of a law to guarantee the privacy of women, children and HIV-positive persons in legal proceedings including filing of litigations, the carrying on of legal proceedings and publication of judgments. The petitioner contended that if the privacy of these persons is not protected then they would be unable to exercise their right of judicial redressal due to the prevailing stigma surrounding issues related to their cases. While hearing the case, the court 82 Mr. ‘X’ v. Hospital ‘Z’ AIR 2003 SC 664 83 It should be noted that the analysis of this judgment is based on an unofficial English translation provided by the petitioner in the case. The citation of the judgment is unavailable. 84 The case was filed in the public interest under the previous Nepali Constitution of 1990. Overcoming this apparent inconsistency, the court held that although the 1990 Constitution stood repealed at the time of adjudication, since the Interim Constitution provided for the right to privacy under Article 28 and retained the extraordinary jurisdiction of the court to grant remedies in matters of public interest under Article 107, it was feasible for the court to deliver justice on the matter at hand. 31
Page 1 and 2: THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4: 6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6: ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8: in the regional reviews. This is a
Page 9 and 10: provide for information and distrib
Page 11 and 12: B. METHODOLOGY In keeping with the
Page 13 and 14: elevant and key laws and judgments;
Page 15 and 16: The inability of many sexually stig
Page 17 and 18: Equality irrespective of a person
Page 19 and 20: The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29: However it also noted that every Ri
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69 and 70: female who has not attained 12 year
Page 71 and 72: Article 16 of the Universal Declara
Page 73 and 74: In Bangladesh, polygamy is allowed
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82:
gender norms which many remand home
Page 83 and 84:
female or a female to a male. It in
Page 85 and 86:
from other forms of inequality as w
Page 87 and 88:
c. Whereas victims of violence in h
Page 89 and 90:
courts. 350 According to the Commis
Page 91 and 92:
The Act provides for the appointmen
Page 93 and 94:
Rani 383 it was held that a shared
Page 95 and 96:
The Act specifies imprisonment of 6
Page 97 and 98:
property jointly or separately held
Page 99 and 100:
upees or the amount of the dowry wh
Page 101 and 102:
however, is that, of the 10,000 dea
Page 103 and 104:
Addararachchi 439 the court conside
Page 105 and 106:
harassment, the Indian Supreme Cour
Page 107 and 108:
doer’s sexual desire by using doe
Page 109 and 110:
In holding that there was no justif
Page 111 and 112:
coerce or induce female inmates to
Page 113 and 114:
material or detain any person for t
Page 115 and 116:
consensual sexual activity with you
Page 117 and 118:
The fined amount is to be given to
Page 119 and 120:
the State and its citizens is one o
Page 121 and 122:
every person “the right against e
Page 123 and 124:
The law also includes the right of
Page 125 and 126:
eing committed. 570 While prosecuti
Page 127 and 128:
Broader provisions related to child
Page 129 and 130:
in order to engage the child in suc
Page 131 and 132:
her.” 631 A person is deemed to h
Page 133 and 134:
that they are denied the fundamenta
Page 135 and 136:
Indonesia’s Constitution recognis
Page 137 and 138:
In Thailand too, abortion is illega
Page 139 and 140:
With regard to the first question,
Page 141 and 142:
Further, any pregnant woman may vol
Page 143 and 144:
childbearing age to establish a hea
Page 145 and 146:
Government could not be held liable
Page 147 and 148:
among those in the reproductive age
Page 149 and 150:
Members' right to protect public he
Page 151 and 152:
7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154:
education as well as non-discrimina
Page 155 and 156:
The exchange of information through
Page 157 and 158:
community.” 727 In each case, the
Page 159 and 160:
Nepal’s Interim Constitution limi
Page 161 and 162:
Sections 292, 292A, 293 and 294 of
Page 163 and 164:
“...any interpretation of 'obscen
Page 165 and 166:
“1 (a) Condones or extenuates act
Page 167 and 168:
In Thailand, places of entertainmen
Page 169 and 170:
8. SEX WORK This section examines h
Page 171 and 172:
The use of raids, and exemptions fr
Page 173 and 174:
clients or make an offer for a sex/
Page 175 and 176:
and non-rehabilitative juvenile jus
Page 177 and 178:
“In view of the aforesaid proposi
Page 179 and 180:
person who commits the act are of t
Page 181 and 182:
as parent or guardian has given his
Page 183 and 184:
with one) on the charge that it was
Page 185 and 186:
for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
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