Hon. S.M. Krishna, External Affairs Minister
Ministry of External Affairs
No. 163, South Block, 2260
New Delhi - 110011
Dear Hon. Minister Krishna,
We are writing to ask for clarification regarding India’s policy related to HIV-related restrictions for foreigners in terms of entry, stay, or residence. We understand that in 2002 the Ministry of Health and Family Welfare ended mandatory HIV testing for foreigners; however, despite more than a decade since the change, government websites and visa forms still suggest that there are mandatory HIV testing requirements and restrictions for HIV-infected foreigners.
Human Rights Watch is one of the world's leading human rights organizations, documenting and advocating against a broad range of human rights violations in over 90 countries. Since 2001, Human Rights Watch has been monitoring health-related human rights violations in the context of the global HIV epidemic.
Over the years, Human Rights Watch has issued multiple reports on HIV and human rights in India: in 2004, we presented findings on widespread discrimination against children living with HIV, and in 2009, we documented the lack of palliative care offered to people, including those undergoing HIV treatment, in many major hospitals and clinics. We have also spoken out about HIV-related restrictions on foreigners imposed by countries around the world, including the United States, South Korea, and China.
We acknowledge India’s admirable commitment to improving the lives of those living with HIV, particularly in addressing stigma; however, we continue to be concerned that India’s goal of eliminating such discrimination will be undermined by unclear and arbitrary imposition of mandatory HIV testing requirements for foreigners and unjustified restrictions on entry, stay, and residence based upon HIV status.
According to Circular No. 319 dated November 22, 2002, the Union Health Ministry of Health & Family Welfare announced a policy change ending all mandatory HIV testing for foreign-born residents and visa applicants, including foreign students. However, despite this change and a subsequent email sent by the Ministry of External Affairs on September 17, 2010 to all Indian missions clarifying that there are no travel or residency restrictions for people living with HIV, many official Indian government websites maintain that an HIV-negative status is required for travel into India. This confusion has also led at least one other nation’s website (the US State Department) to advise their citizens that infection with HIV is grounds for deportation from India.
As an example, in apparent contradiction to the official policies in place, the website of the High Commission of India, London, states that the required documents for registration include, “HIV test report from one of the WHO-recognized institutions from people in the age group 15-60 years, if the foreigner is visiting India on a visa for more than one year.” Likewise, the Consulate General of India in Toronto, Canada mandates that an AIDS test is required for any adult who may stay in India for one year or more.
The website of the University Grants Commission (a statutory body of the Government of India founded through an Act of Parliament in 1956) indicates that Step 6 of the Procedures for Admission of International Students is, “As per government rules all international students entering India on student visa have to be tested for HIV and will not be given admission if found to be positive.” Meanwhile, the visa applications of the Indian embassies in Tashkent, Uzbekistan and Kuala Lumpur, Malaysia require all applicants to pledge and sign, “I HEREBY UNDERTAKE THAT I SHALL SUBJECT MYSELF TO A MEDICAL TEST INCLUDING FOR AIDS WITHIN ONE MONTH OF ARRIVAL IN INDIA. IN CASE I AM FOUND POSITIVE FOR AIDS, I WILL LEAVE INDIA.”
Such inaccurate information from government sources can perpetuate discrimination against people living with HIV. The international public health community has long recognized the deleterious repercussions of such travel restrictions. Not only do these restrictions contribute to and reinforce stigma against migrant people living with HIV, such policies can have serious consequences for the domestic national population, making it difficult to discuss and address HIV issues in the public realm and creating a false sense of security that only migrants are at risk for HIV.
The practice of national restrictions on entry, stay, and residence for persons living with HIV broadly violates international human rights law provisions banning discrimination and upholding equality before the law. Following the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR)—to which India is a party— guarantees all persons the right to equal protection of the law without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The former UN Commission on Human Rights has interpreted this provision to include discrimination based on HIV/AIDS status. States must respect this right for all individuals within their territory and subject to their jurisdiction, regardless of citizenship. Indeed, the Human Rights Committee—the ICCPR's monitoring body—has noted that while "[i]t is in principle a matter for the State to decide who it will admit to its territory...in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise." Human rights bodies, such as the European Court of Human Rights, have concluded that states have little freedom to implement entry and residence policies and laws that target particular groups in a blanket and discriminatory manner.
Failure to update the government websites of Indian consulates and embassies runs contrary to Article 26 (1) (c) of the Right to Information Act, requiring the government to “promote timely and effective dissemination of accurate information” by public authorities. Offering accurate information on official documents and paperwork clarifies ambiguities about India’s standing on travel regulations based on HIV status.
In light of the threat that official government websites and visa forms promoting outdated and discriminatory practices pose both to public health and human rights in India and abroad, we urge you to immediately ensure that all consular documents reflect and emphasize the removal of HIV-related restrictions to foreign-born visitors and residents. We call on you to make public statements highlighting the changes so that all visitors may enjoy India without fear of disclosing their HIV-positive status and to confirm that the practice in local consulates and embassies adheres to the new inclusive travel policies.
Thank you for the opportunity to express these concerns to you, and we hope that our recommendations will be of assistance in addressing these important issues.
Director, Health and Human Rights Division
Human Rights Watch
Circular No. 319, Memorandum No. 25022/149/2002-F.I. from A.V. Dharma Reddy, deputy secretary to the Government of India to all Indian missions/posts abroad, all home secretaries of state, and Foreigners Regional Registration Offices Delhi/Mumbai/Kolkata/Amritsar, November 22, 2002. On file with Human Rights Watch.
See e.g. High Commission of India, “London Visa Services,” undated, http://www.hcilondon.org/visa_frrochklst.htm(accessed July 18, 2012); Consulate General of India,
Toronto, “Visa Services: General Information,” May 18, 2012, http://cgitoronto.ca/Visa/visageninfo1.html(accessed July 18, 2012).
See e.g. High Commission of India, “Application Form for India Visa,” http://www.indianhighcommission.com.my/forms/Visa%20Application.pdf(accessed July 18, 2012); Embassy of India, “Visa Application Form,” undated, http://indembassy.uz/c/russian/visa_form.zip(accessed July 19, 2012).
Human Rights Watch, Future Forsaken: Abuses Against Children Affected by HIV/AIDS in India, July 24, 2004, https://www.hrw.org/reports/2004/07/28/future-forsaken-0; Human Rights Watch, Unbearable Pain: India’s Obligation to Ensure Palliative Care, October 28, 2009, https://www.hrw.org/reports/2009/10/28/unbearable-pain-0.
Joseph J. Amon and Katherine W. Todrys, “Fear of Foreigners: HIV-Related Restrictions on Entry, Stay, and Residence,” Journal of International AIDS Society, vol.11, no. 1 (2008), p. 8; Letter from Human Rights Watch to the National Human Rights Commission of Korea, June 19, 2009, https://www.hrw.org/news/2009/06/19/letter-national-human-rights-commission-korea(accessed July 18, 2012); Letter from Human Rights Watch to the US Department of Health and Human Services, August 7, 2009, https://www.hrw.org/news/2009/08/07/letter-us-department-health-and-human-services(accessed July 18, 2012).
Circular No. 319, November 22, 2002. On file with Human Rights Watch.
Email from A. Manickam, joint secretary of Indian Ministry of External Affairs to all heads of Indian missions/heads of posts abroad, entitled: “HIV Testing of Foreigners,” September 17 2010. On file with Human Rights Watch.
See e.g. High Commission of India, “Application Form for India Visa,” http://www.indianhighcommission.com.my/forms/Visa%20Application.pdf; Embassy of India, “Visa Application Form,” undated, http://indembassy.uz/c/russian/visa_form.zip.
US Department of State, Bureau of Consular Affairs, “India Country Specific Information,” April 3, 2012, http://travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html(accessed July 19, 2012).
University Grants Commission, “Generic Guidelines for Admission of International Students: Stepwise Procedure for Admission of International Students for Full-Time Courses in Institution, Step 6,” http://www.ugc.ac.in/new_initiatives/guid-intstudent.html(accessed July 16, 2012
. High Commission of India, “Application Form for India Visa,” undated, http://www.indianhighcommission.com.my/forms/Visa%20Application.pdf; Embassy of India, “Visa Application Form,” undated, http://indembassy.uz/c/russian/visa_form.zip.
All-Party Parliamentary Group on AIDS, “Migration and HIV: Improving Lives in Britain: An Inquiry into the Impact of the UK Nationality and Immigration System on People Living with HIV,” July 10, 2003, available at http://www.appg-aids.org.uk; Joseph J. Amon and Katherine W. Todrys, “Fear of Foreigners: HIV-Related Restrictions on Entry, Stay, and Residence,” Journal of International AIDS Society, vol.11, no. 1 (2008), p. 8.
Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), art. 7, para. 1; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 26; Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N.Doc. A/44/49 (1989), entered into force September 2, 1990, art. 2; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969.
Universal Declaration of Human Rights, art. 7, para. 1.
International Covenant on Civil and Political Rights, art. 26.
Commission on Human Rights, "The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)," Resolution 1995/44, March 3, 1995.
UN Human Rights Committee, General Comment No. 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 26; UN Human Rights Committee, General Comment No. 15, The position of aliens under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Commendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/ GEN/1/Rev.1 at 18 (1994).
European Court of Human Rights, East African Asians v. United Kingdom, Judgment of 15 December 1973, 3 EHRR 76. Abdulaziz, Cabales and Balkandali v. United Kingdom, Judgment of 24 April 1985, 7 EHRR 471.
The Right To Information Act, No. 22, adopted June 15, 2005, http://www.righttoinformation.gov.in/webactrti.htm(accessed July 19, 2012).