For prevention and control of the spread of HIV and AIDS and for protection of human rights of persons affected by the said virus and syndrome.
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
Act No. 16 of 2017
[20th April, 2017]
An Act to provide for the prevention and control of the spread of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and for the protection of human rights of persons affected by the said virus and syndrome and for matters connected therewith or incidental thereto
Whereas the spread of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome is a matter of grave concern to all and there is an urgent need for the prevention and control of said virus and syndrome;
And whereas there is a need to protect and secure the human rights of persons who are HIV positive, affected by Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and vulnerable to the said virus and syndrome;
And whereas there is a necessity for effective care, support and treatment for Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome;
And whereas there is a need to protect the rights of healthcare providers and other persons in relation to Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome;
And whereas the General Assembly of the United Nations, recalling and reaffirming its previous commitments on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome, has adopted the Declaration of Commitment on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (2001) to address the problems of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome in all its aspects and to secure a global commitment to enhancing coordination and intensification of national, regional and international efforts to combat it in a comprehensive manner;
And whereas the Republic of India, being a signatory to the aforesaid Declaration, it is expedient to give effect to the said Declaration.
Be it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows—
Chapter I
PRELIMINARY
1. Short title, extent and commencement.
1. Short title, extent and commencement.—(1) This Act may be called the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
[Editor’s Note: This Act came into force w.e.f. 10-09-2018.]
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Other Contents of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 |
2. Definitions.
2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “AIDS” means Acquired Immune Deficiency Syndrome, a condition characterised by a combination of signs and symptoms, caused by Human Immunodeficiency Virus, which attacks and weakens the body’s immune system making the HIV positive person susceptible to life threatening conditions or other conditions, as may be specified from time to time;
(b) “capacity to consent” means ability of an individual, determined on an objective basis, to understand and appreciate the nature and consequences of a proposed action and to make an informed decision concerning such action;
(c) “child affected by HIV” means a person below the age of eighteen years, who is HIV positive or whose parent or guardian (with whom such child normally resides) is HIV positive or has lost a parent or guardian (with whom such child resided) due to AIDS or lives in a household fostering children orphaned by AIDS;
(d) “discrimination” means any act or omission which directly or indirectly, expressly or by effect, immediately or over a period of time,—
(i) imposes any burden, obligation, liability, disability or disadvantage on any person or category of persons, based on one or more HIV related grounds; or
(ii) denies or withholds any benefit, opportunity or advantage from any person or category of persons, based on one or more HIV related grounds,
and the expression “discriminate” to be construed accordingly.
Explanation 1.—For the purposes of this clause, HIV related grounds include—
(i) being an HIV positive person;
(ii) ordinarily living, residing or cohabiting with a person who is HIV positive person;
(iii) ordinarily lived, resided or cohabited with a person who was HIV positive.
Explanation 2.—For the removal of doubts, it is hereby clarified that adoption of medically advised safeguards and precautions to minimise the risk of infection shall not amount to discrimination;
(e) “domestic relationship” means a relationship as defined under clause (f) of Section 2 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005);
(f) “establishment” means a body corporate or cooperative society or any organisation or institution or two or more persons jointly carrying out a systematic activity for a period of twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or services;
(g) “guidelines” means any statement or any other document issued by the Central Government indicating policy or procedure or course of action relating to HIV and AIDS to be followed by the Central Government, State Governments, governmental and non-governmental organisations and establishments and individuals dealing with prevention, control and treatment of HIV or AIDS;
(h) “healthcare provider” means any individual whose vocation or profession is directly or indirectly related to the maintenance of the health of another individual and includes any physician, nurse, paramedic, psychologist, counsellor or other individual providing medical, nursing, psychological or other healthcare services including HIV prevention and treatment services;
(i) “HIV” means Human Immunodeficiency Virus;
(j) “HIV affected person” means an individual who is HIV positive or whose partner (with whom such individual normally resides) is HIV positive or has lost a partner (with whom such individual resided) due to AIDS;
(k) “HIV positive person” means a person whose HIV test has been confirmed positive;
(l) “HIV related information” means any information relating to the HIV status of a person and includes—
(i) information relating to the undertaking performing the HIV test or result of an HIV test;
(ii) information relating to the care, support or treatment of that person;
(iii) information which may identify that person; and
(iv) any other information concerning that person, which is collected, received, accessed or recorded in connection with an HIV test, HIV treatment or HIV related research or the HIV status of that person;
(m) “HIV test” means a test to determine the presence of an antibody or antigen of HIV;
(n) “informed consent” means consent given by any individual or his representative specific to a proposed intervention without any coercion, undue influence, fraud, mistake or misrepresentation and such consent obtained after informing such individual or his representative, as the case may be, such information, as specified in the guidelines, relating to risks and benefits of, and alternatives to, the proposed intervention in such language and in such manner as understood by that individual or his representative, as the case may be;
(o) “notification” means a notification published in the Official Gazette;
(p) “partner” means a spouse, de facto spouse or a person with whom another person has relationship in the nature of marriage;
(q) “person” includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or a body of individuals, whether incorporated or not, in India or outside India, any corporation established by or under any Central or State Act or any company including a Government company incorporated under the Companies Act, 1956 (1 of 1956), any Limited Liability Partnership under the Limited Liability Partnership Act, 2008 (6 of 2009), any body corporate incorporated by or under the laws of a country outside India, a cooperative society registered under any law relating to cooperative societies, a local authority, and every other artificial juridical person;
(r) “prescribed” means prescribed by rules made by the Central Government or the State Government, as the case may be;
(s) “protected person” means a person who is—
(i) HIV positive; or
(ii) ordinarily living, residing or cohabiting with a person who is HIV positive person; or
(iii) ordinarily lived, resided or cohabited with a person who was HIV positive;
(t) “reasonable accommodation” means minor adjustments to a job or work that enables an HIV positive person who is otherwise qualified to enjoy equal benefits or to perform the essential functions of the job or work, as the case may be;
(u) “relative”, with reference to the protected person, means—
(i) spouse of the protected person;
(ii) parents of the protected person;
(iii) brother or sister of the protected person;
(iv) brother or sister of the spouse of the protected person;
(v) brother or sister of either of the parents of the protected person;
(vi) in the absence of any of the relatives mentioned at sub-clauses (i) to (v), any lineal ascendant or descendant of the protected person;
(vii) in the absence of any of the relatives mentioned at sub-clauses (i) to (vi), any lineal ascendant or descendant of the spouse of the protected person;
(v) “significant-risk” means—
(a) the presence of significant-risk body substances;
(b) a circumstance which constitutes significant-risk for transmitting or contracting HIV infection; or
(c) the presence of an infectious source and an uninfected person.
Explanation.—For the purpose of this clause,—
(i) “significant-risk body substances” are blood, blood products, semen, vaginal secretions, breast milk, tissue and the body fluids, namely, cerebrospinal, amniotic, peritoneal, synovial, pericardial and pleural;
(ii) “circumstances which constitute significant-risk for transmitting or contracting HIV infection” are—
(A) sexual intercourse including vaginal, anal or oral sexual intercourse which exposes an uninfected person to blood, blood products, semen or vaginal secretions of an HIV positive person;
(B) sharing of needles and other paraphernalia used for preparing and injecting drugs between HIV positive persons and uninfected persons;
(C) the gestation, giving birth or breast feeding of an infant when the mother is an HIV positive person;
(D) transfusion of blood, blood products, and transplantation of organs or other tissues from an HIV positive person to an uninfected person, provided such blood, blood products, organs or other tissues have not been tested conclusively for the antibody or antigen of HIV and have not been rendered non-infective by heat or chemical treatment; and
(E) other circumstances during which a significant-risk body substance, other than breast milk, of an HIV positive person contacts or may contact mucous membranes including eyes, nose or mouth, non-intact skin including open wounds, skin with a dermatitis condition or abraded areas or the vascular system of an uninfected person, and including such circumstances not limited to needle-stick or puncture wound injuries and direct saturation or permeation of these body surfaces by the significant-risk body substances:
Provided that “significant-risk” shall not include—
(i) exposure to urine, faeces, sputum, nasal secretions, saliva, sweat, tears or vomit that does not contain blood that is visible to the naked eye;
(ii) human bites where there is no direct blood to blood, or no blood to mucous membrane contact;
(iii) exposure of intact skin to blood or any other blood substance; and
(iv) occupational centres where individuals use scientifically accepted Universal Precautions, prohibitive techniques and preventive practices in circumstances which would otherwise pose a significant-risk and such techniques are not breached and remain intact;
(w) “State AIDS Control Society” means the nodal agency of the State Government responsible for implementing programmes in the field of HIV and AIDS;
(x) “State Government”, in relation to a Union Territory, means the Administrator of that Union Territory appointed by the President under Article 239 of the Constitution; and
(y) “Universal Precautions” means control measures that prevent exposure to or reduce, the risk of transmission of pathogenic agents (including HIV) and includes education, training, personal protective equipment such as gloves, gowns and masks, hand washing, and employing safe work practices.
Chapter II
PROHIBITION OF CERTAIN ACTS
3. Prohibition of discrimination.
3. Prohibition of discrimination.—No person shall discriminate against the protected person on any ground including any of the following, namely—
(a) the denial of, or termination from, employment or occupation, unless, in the case of termination, the person, who is otherwise qualified, is furnished with—
(i) a copy of the written assessment of a qualified and independent healthcare provider competent to do so that such protected person poses a significant-risk of transmission of HIV to other person in the workplace, or is unfit to perform the duties of the job; and
(ii) a copy of a written statement by the employer stating the nature and extent of administrative or financial hardship for not providing him reasonable accommodation;
(b) the unfair treatment in, or in relation to, employment or occupation;
(c) the denial or discontinuation of, or unfair treatment in, healthcare services;
(d) the denial or discontinuation of, or unfair treatment in, educational, establishments and services thereof;
(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public, whether or not for a fee, including shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads, burial grounds or funeral ceremonies and places of public resort;
(f) the denial, or, discontinuation of, or unfair treatment with regard to, the right of movement;
(g) the denial or discontinuation of, or unfair treatment with regard to, the right to reside, purchase, rent, or otherwise occupy, any property;
(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for, or, hold public or private office;
(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a person may be;
(j) the denial of, or unfair treatment in, the provision of insurance unless supported by actuarial studies;
(k) the isolation or segregation of a protected person;
(l) HIV testing as a prerequisite for obtaining employment, or accessing healthcare services or education or, for the continuation of the same or, for accessing or using any other service or facility:
Provided that, in case of failure to furnish the written assessment under sub-clause (i) of clause (a), it shall be presumed that there is no significant-risk and that the person is fit to perform the duties of the job, as the case may be, and in case of the failure to furnish the written statement under sub-clause (ii) of that clause, it shall be presumed that there is no such undue administrative or financial hardship.
4. Prohibition of certain acts.
4. Prohibition of certain acts.—No person shall, by words, either spoken or written, publish, propagate, advocate or communicate by signs or by visible representation or otherwise the feelings of hatred against any protected persons or group of protected person in general or specifically or disseminate, broadcast or display any information, advertisement or notice, which may reasonably be construed to demonstrate an intention to propagate hatred or which is likely to expose protected persons to hatred, discrimination or physical violence.
Chapter III
INFORMED CONSENT
5. Informed consent for undertaking HIV test or treatment.
5. Informed consent for undertaking HIV test or treatment.—(1) Subject to the provisions of this Act,—
(a) no HIV test shall be undertaken or performed upon any person; or
(b) no protected person shall be subject to medical treatment, medical interventions or research,
except with the informed consent of such person or his representative and in such manner, as may be specified in the guidelines.
(2) The informed consent for HIV test shall include pre-test and post-test counselling to the person being tested or such person’s representative in the manner as may be specified in the guidelines.
6. Informed consent not required for conducting HIV tests in certain cases.
6. Informed consent not required for conducting HIV tests in certain cases.—The informed consent for conducting an HIV test shall not be required—
(a) where a court determines, by an order that the carrying out of the HIV test of any person either as part of a medical examination or otherwise, is necessary for the determination of issues in the matter before it;
(b) for procuring, processing, distribution or use of a human body or any part thereof including tissues, blood, semen or other body fluids for use in medical research or therapy:
Provided that where the test results are requested by a donor prior to donation, the donor shall be referred to counselling and testing centre and such donor shall not be entitled to the results of the test unless he has received post-test counselling from such centre;
(c) for epidemiological or surveillance purposes where the HIV test is anonymous and is not for the purpose of determining the HIV status of a person:
Provided that persons who are subjects of such epidemiological or surveillance studies shall be informed of the purposes of such studies; and
(d) for screening purposes in any licensed blood bank.
7. Guidelines for testing centres, etc.
7. Guidelines for testing centres, etc.—No HIV test shall be conducted or performed by any testing or diagnostic centre or pathology laboratory or blood bank, unless such centre or laboratory or blood bank follows the guidelines laid down for such test.
Chapter IV
DISCLOSURE OF HIV STATUS
8. Disclosure of HIV status.
8. Disclosure of HIV status.—(1) Notwithstanding anything contained in any other law for the time being in force,—
(i) no person shall be compelled to disclose his HIV status except by an order of the court that the disclosure of such information is necessary in the interest of justice for the determination of issues in the matter before it;
(ii) no person shall disclose or be compelled to disclose the HIV status or any other private information of other person imparted in confidence or in a relationship of a fiduciary nature, except with the informed consent of that other person or a representative of such another person obtained in the manner as specified in Section 5, as the case may be, and the fact of such consent has been recorded in writing by the person making such disclosure:
Provided that, in case of a relationship of a fiduciary nature, informed consent shall be recorded in writing.
(2) The informed consent for disclosure of HIV related information under clause (ii) of sub-section (1) is not required where the disclosure is made—
(a) by a healthcare provider to another healthcare provider who is involved in the care, treatment or counselling of such person, when such disclosure is necessary to provide care or treatment to that person;
(b) by an order of a court that the disclosure of such information is necessary in the interest of justice for the determination of issues and in the matter before it;
(c) in suits or legal proceedings between persons, where the disclosure of such information is necessary in filing suits or legal proceedings or for instructing their counsel;
(d) as required under the provisions of Section 9;
(e) if it relates to statistical or other information of a person that could not reasonably be expected to lead to the identification of that person; and
(f) to the officers of the Central Government or the State Government or State AIDS Control Society of the concerned State Government, as the case may be, for the purposes of monitoring, evaluation or supervision.
9. Disclosure of HIV positive status to partner of HIV positive person.
9. Disclosure of HIV positive status to partner of HIV positive person.—(1) No healthcare provider, except a physician or a counsellor, shall disclose the HIV positive status of a person to his or her partner.
(2) A healthcare provider, who is a physician or counsellor, may disclose the HIV positive status of a person under his direct care to his or her partner, if such healthcare provider—
(a) reasonably believes that the partner is at the significant-risk of transmission of HIV from such person; and
(b) such HIV positive person has been counselled to inform such partner; and
(c) is satisfied that the HIV positive person will not inform such partner; and
(d) has informed the HIV positive person of the intention to disclose the HIV positive status to such partner:
Provided that disclosure under this sub-section to the partner shall be made in person after counselling:
Provided further that such healthcare provider shall have no obligation to identify or locate the partner of an HIV positive person:
Provided also that such healthcare provider shall not inform the partner of a woman where there is a reasonable apprehension that such information may result in violence, abandonment or actions which may have a severe negative effect on the physical or mental health or safety of such woman, her children, her relatives or someone who is close to her.
(3) The healthcare provider under sub-section (1) shall not be liable for any criminal or civil action for any disclosure or non-disclosure of confidential HIV related information made to a partner under this section.
10. Duty to prevent transmission of HIV.
10. Duty to prevent transmission of HIV.—Every person, who is HIV positive and has been counselled in accordance with the guidelines issued or is aware of the nature of HIV and its transmission, shall take all reasonable precautions to prevent the transmission of HIV to other persons which may include adopting strategies for the reduction of risk or informing in advance his HIV status before any sexual contact with any person or with whom needles are shared with:
Provided that the provisions of this section shall not be applicable to prevent transmission through a sexual contact in the case of a woman, where there is a reasonable apprehension that such information may result in violence, abandonment or actions which may have a severe negative effect on the physical or mental health or safety of such woman, her children, her relatives or someone who is close to her.
Chapter V
OBLIGATION OF ESTABLISHMENTS
11. Confidentiality of data.
11. Confidentiality of data.—Every establishment keeping the records of HIV related information of protected persons shall adopt data protection measures in accordance with the guidelines to ensure that such information is protected from disclosure.
Explanation.—For the purpose of this section, data protection measures shall include procedures for protecting information from disclosure, procedures for accessing information, provision for security systems to protect the information stored in any form and mechanisms to ensure accountability and liability of persons in the establishment.
12. HIV and AIDS policy for establishments.
12. HIV and AIDS policy for establishments.—The Central Government shall notify model HIV and AIDS policy for establishments, in such manner, as may be prescribed.
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