India

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India: Bombay court rules existing criminal law sufficient to investigate HIV exposure/transmission

19 Dec 2007
A short and somewhat unclear story from The Telegraph of Calcutta, India suggests that existing Indian law can be used to investigate and prosecute HIV exposure following non-disclosure (and possibly ‘reckless’ HIV transmission) under Sections 308 and 420 of the … More

India: Delhi judge allows man to divorce wife because she is HIV-positive

02 Nov 2007
Court allows ‘HIV’ divorce In the first case of its kind, a Delhi court granted divorce to a man because he could not have sexual intercourse with his HIV-positive wife. Additional district judge Rajnish Bhatnagar allowed the divorce petition filed … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: Yes

Is transmission actionable: Yes

Laws

Applicable laws

Criminal Law: Penal Code 1860

Applicable key wording

Negligent act, Malignant act

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

Further reading

Latest cases and news can be found at: http://www.hivjustice.net/country/in/

Cases

Overview

There has been at least one media report

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017