NACO affidavit in the matter of NAZ Foundation Vs Government of NCT and others

[Guest guest]

IN THE HIGH COURT OF DELHI AT NEW DELHI, WRIT PETITION (CIVIL)

NO.7455 OF 2001

IN THE MATTER OF: Naz Foundation ----Petitioner Versus Govt. of

N.C.T. and others -----Respondents

Reply Affidavit on Behalf of Respondents 4 and 5

I, M.L.Soni, having office at Ministry of Health & Family Welfare,

National AIDS Control Organisation, 9th Floor, Chanderlok Building,

36, Janpath, New Delhi-110001, do here by solemnly affirm and state

as under:

1. That I, in the capacity of Under Secretary to the Government of

India, Ministry of Health & Family Welfare, National AIDS Control

Organisation and having gone through the records of the case, I am

as such competent to depose by the present affidavit

2. That the paras of the Writ Petition which are not specifically

admitted hereunder may be deemed to have been traversed and denied.

3. The strategy adopted by the National AIDS Control Organisation

for prevention and control of HIV/AIDS in India is submitted as

under:

There are populations identified to be at a greater risk of

acquiring and transmitting HIV infection due to a high level of

risky behaviour and insufficient capacity or power for decision

making to protect themselves from infection. Such population also

known as High Risk Groups, broadly including men who have sex with men (MSM),

female sex workers and injecting drug users.

(a). The strategy for preventing and the further transmission of

infection includes:

i. Making the general population and high risk groups through

strategic IEC (Information Education Communication) & BCC (Behaviour

Change Communication) providing them with the necessary tools and

information for protecting themselves from HIV infection.

ii. Motivating safer sexual practices by reducing sexual partners,

being faithful to a single partner abstaining from casual sex and

the correct and consistent use of condoms.

iii. Controlling sexually transmitted infections (STIs) among high

risk groups along with promoting use of condoms as preventive

measure.

iv. Peer education and community participation (being the essential

component of primary health care).

v. Ensuring availability of safe blood and blood products; and

vi. Reinforcing the traditional Indian moral values of abstinence

delayed sexual debut till marriage and fidelity among youth and

other impressionable groups of population.

( To create an enabling socio-economic environment so that all

sections of population can have access to proper information, health

care and counseling services to protect themselves from the

infection and at the same time empower families and communities to

provide better care and support to people living with HIV/AIDS.

© Improving services for the care of people living with AIDS both

in hospital and at homes through community care.

4. It is submitted that the report of the expert group on size

estimation of population with high risk behaviour for NACP-III

planning, January 2006 estimated that there are about 25 lakh MSMs

(Men having sex with men). The National Sentinel Surveillance Data

2005 shows that more than 8% of the population of MSM are infected

by HIV while the HIV prevalence among the general population is

estimated to be lesser than 1%. Given the high vulnerability of

MSMs to HIV infection, NACO has developed programmes for

undertaking targeted interventions among them. These projects are

implemented by NGOs with financial support from NACO. Presently

1,46,397 MSMs (60%) are being covered through 30 targeted interventions.

Under these targeted intervention projects, the objectives are to:

a. reduce number of partners and by bringing about a change in their

behaviour;

b. reduce their level of risk by informing them about providing

access to condoms;

c. providing access to STD services.

These population are mostly reluctant to reveal same sex behaviour

due to the fear of law enforcement agencies, keeping a large section

invisible and unreachable and pushing the infection underground,

making it difficult for us to access them. Thus, while the National

Baseline BSS (Behaviour Surveillance Survey) of 2002 data shows that

68.6% MSM population are aware about methods of preventing infection only 36% of

them use condoms.

5. It is submitted that the enforcement of section 377 of IPC can

adversely contribute to pushing the infection underground, make

risky sexual practices go unnoticed and unaddressed. The fear of

harassment by law enforcement agencies leads to sex being hurried,

leaving partners without the option to consider or negotiate safer

sex practices. As MSM groups lack ''safe place'' and utilise public

places such as railway stations etc, they become vulnerable to

harassment and abuse by the police. The hidden nature of MSM groups

further leads to poor access to condom, healthcare services and safe

sex information. This constantly inhibits/impedes interventions

under the National AIDS Control Programme aimed at preventing spread

of HIV/AIDS by promoting safe sexual practices by using condoms or abstaining

from multipartner sex etc.

6. It is submitted that for prevention of HIV/AIDS it is essential

that there should be an enabling environment where the people

involved in risky behaviour may be encouraged not to conceal

information so that they are provided total access to services of

National AIDS Control Programme.

7. It is submitted that as far as the transmission of HIV infection

is concerned, it is related to multiple sexual partners in respect

of heterosexual or homosexual behaviour, requiring change of

lifestyles towards abstinence, faithful to partner and/ or the

correct and consistent use of condoms. Every effort is being made to promote

these messages.

VERIFICATION

Verified at New Delhi on this day of July 17, 2006 that the contents

of my above affidavit are true and correct and nothing has been

concealed therein.

DEPONEN

M.L.SONI

Under Secretary to the Government of India, National AIDS Control

Organisation, Ministry of Health and Family Welfare, New Delhi-110001

[Guest guest]

Re: NACO affidavit in the matter of NAZ Foundation Vs Government of NCT and

others

Dear Friends

NACO's response to the petition filed by Naz Foundation (India) Trust against

Section 377, Indian Penal Code is an encouraging step. If NACP III has to

achieve its ambitious targets, particularly in terms of reaching out to the most

at-risk populations / communities, then creating a destigmatized social

environment is definitely one of the pre-requisites. Dr. Sujatha Rao, Director

General, NACO, and her colleagues have to be commended for working towards the

implementation of NACP III in letter and spirit.

Beyond or parallel to the HIV/AIDS perspective, the response to the petition can

also be seen as the first step towards greater recognition for sexual diversity

and sexual rights in our country. Much belated but very welcome! How can we, as

a society where there is so much geographical, cultural and political diversity,

also not recognize gender and sexual diversities? We have to - for the sake of

our sexual (and public) health!

Our congratulations also to Naz Foundation (India) Trust, their counsel Lawyers

Collective - HIV/AIDS Unit, and all LGBT groups and individuals and their

supporters. Let us draw strength from this development for further work ahead.

Best wishes

Pawan Dhall

Country Director - Programmes & Development and

Calcutta Office Director

Solidarity and Action Against The HIV Infection in India (SAATHII)

CD 335, Sector I, Salt Lake

Calcutta 700 064, West Bengal, India

91 33 2334 7329 (Landline)

91 98312 88023 (Mobile)

saathii@... / pawan30@...

www.saathii.org