India

Last updated on: 31 August 2012

Criminalisation of HIV transmission/exposure

India
Whether Specific law enacted: 
No
Number of people prosecuted: 
-
Number of people convicted: 
-
Applicable law: 

Criminal Law: Penal Code 1860

Key wording in the law: 

Negligent act, Malignant act

Key Cases: 

There has been at least one media report

Discussion: 

Penal Code 1860 (s 269) Negligent  act likely to spread infection of disease dangerous to life- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangeorus to life, shall be punished with imprisonment of either description for a term which may extend to 6 months, or with fine, or with both.

Penal Code 1860 (s 270) Malignant act likely to spread infection of disease dngerous to life-  Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to sprea the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

To our knowledge, there have been no prosecutions or convictions for the transmission of HIV occuring under this law so the application of the law to alleged HIV transmision is, at the moment, merely theoretical.

In 1999, identical versions of private member's Human Immunodeficiency Virus (HIV) Bills were considered but not enacted or passed into law, by the state assemblies of Maharashtra and Karnataka.

Section 4 set out a provision that would have made "a person who in all reasonable probability would have known his/her status" liable for punishment for exposing others to the risk of infection. The provision did not provide guidelines for deciding how a "reasonable probabilityu" of an individual having knowledge of his/her HIV status would be determined.

Section 4 also stated that actual transmission would not be necessary to makie a person liable. For example, sex between a HIV-positive person and a HIV-negative person, even with full and free informed consent and which did not result in transmission, could make the HIV-positive person liable.

S 269 and S 270 of the Indian Penal Code were considered sufficient to deal with offences related to intentional HIV transmission.

The latest (2007) version of draft HIV/AIDS Bill provides for a duty to prevent transmission.

Section 14. Duty to prevent transmission. – Every person who is HIV-positive, is aware of such status and, has been counselled in accordance with this Act or is aware of the nature of HIV and how it is transmitted, shall take all reasonable measures and precautions to prevent the transmission of HIV to others which may include adopting strategies for the reduction of risk or informing in advance any sexual contact or person with whom needles are shared of that fact.

With regards to penalities: Section 99. Offence under the Act to be tried summarily. – All offences under this Act shall be tried summarily in the manner provided for summary trial under the Code of Criminal Procedure, 1973 (2 of 1974). 

The draft law on HIV is available from the Lawyers Collective at http://www.lawyerscollective.org/files/Final%20HIV%20Bill%202007.pdf

Survey respondents/Organisations working on HIV and the Law: 

Lawyers Collective

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no restrictions for HIV positive visitors. No questions relating to a potential HIV infection are asked when individuals apply for a visa, residency or work permit.

"Foreigners, including students, do not have to undergo mandatory HIV testing in India. The former regulations were repealed on September 29, 2002, by the Health and Family Welfare Minister Shatrughan Sinha.

The Health and Family Welfare Minister Shatrughan Sinha is quoted as having said: "Experts were of the opinion that mandatory HIV testing of foreigners/foreign students is contrary to recommendations of the World Health Organisation (WHO)." 

In a communication to embassies and consulates dated September 17, 2010, the Ministry of External Affairs clarified that there are no travel or residency restrictions for People Living with HIV coming to India.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org

Laws relating to injecting drug use: 

Yes

Protective laws and policies for people living with HIV: 

No