Chapter VI
ANTI-RETROVIRAL THERAPY AND OPPORTUNISTIC INFECTION MANAGEMENT FOR PEOPLE LIVING WITH HIV
13. Central Government and State Government to take measures.
13. Central Government and State Government to take measures.—The Central Government and every State Government, as the case may be, shall take all such measures as it deems necessary and expedient for the prevention of spread of HIV or AIDS, in accordance with the guidelines.
14. Antiretroviral Therapy and Opportunistic Infection Management by Central Government and State Government.
14. Antiretroviral Therapy and Opportunistic Infection Management by Central Government and State Government.—(1) The measures to be taken by the Central Government or the State Government under Section 13 shall include the measures for providing, as far as possible, diagnostic facilities relating to HIV or AIDS, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS.
(2) The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Anti-retroviral Therapy and Opportunistic Infection Management which shall be applicable to all persons and shall ensure their wide dissemination.
Chapter VII
WELFARE MEASURES BY THE CENTRAL GOVERNMENT AND STATE GOVERNMENT
15. Welfare measures by Central Government and State Government.
15. Welfare measures by Central Government and State Government.—(1) The Central Government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS.
(2) Without prejudice to the provisions of sub-section (1), the Central Government and State Governments shall frame schemes to address the needs of all protected persons.
16. Protection of property of children affected by HIV or AIDS.
16. Protection of property of children affected by HIV or AIDS.—(1) The Central Government or the State Government, as the case may be, shall take appropriate steps to protect the property of children affected by HIV or AIDS for the protection of property of child affected by HIV or AIDS.
(2) The parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child’s house.
Explanation.—For the purpose of this section, “Child Welfare Committee” means a Committee set-up under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).
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Other Contents of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 |
17. Promotion of HIV and AIDS related information, education and communication programmes.
17. Promotion of HIV and AIDS related information, education and communication programmes.—The Central Government and the State Government shall formulate HIV and AIDS related information, education and communication programmes which are age appropriate, gender sensitive, non-stigmatising and non-discriminatory.
18. Women and children infected with HIV or AIDS.
18. Women and children infected with HIV or AIDS.—(1) The Central Government shall lay down guidelines for care, support and treatment of children infected with HIV or AIDS.
(2) Without prejudice to the generality of the provisions of sub-section (1) and notwithstanding anything contained in any other law for the time being in force, the Central Government, or the State Government as the case may be, shall take measures to counsel and provide information regarding the outcome of pregnancy and HIV related treatment to the HIV infected women.
(3) No HIV positive woman, who is pregnant, shall be subjected to sterilisation or abortion without obtaining her informed consent.
Chapter VIII
SAFE WORKING ENVIRONMENT
19. Obligation of establishments to provide safe working environment.
19. Obligation of establishments to provide safe working environment.—Every establishment, engaged in the healthcare services and every such other establishment where there is a significant-risk of occupational exposure to HIV, shall, for the purpose of ensuring safe working environment,—
(i) provide, in accordance with the guidelines,—
(a) Universal Precautions to all persons working in such establishment who may be occupationally exposed to HIV; and
(b) training for the use of such Universal Precautions;
(c) Post Exposure Prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and
(ii) inform and educate all persons working in the establishment of the availability of Universal Precautions and Post Exposure Prophylaxis.
20. General responsibility of establishments.
20. General responsibility of establishments.—(1) The provisions of this Chapter shall be applicable to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be:
Provided that in the case of healthcare establishments, the provisions of this sub-section shall have the effect as if for the words “one hundred or more”, the words “twenty or more” had been substituted.
(2) Every person, who is in charge of an establishment, referred to in sub-section (1), for the conduct of the activities of such establishment, shall ensure compliance of the provisions of this Act.
21. Grievance redressal mechanism.
21. Grievance redressal mechanism.—Every establishment referred to in sub-section (1) of Section 20 shall designate such person, as it deems fit, as the Complaints Officer who shall dispose of complaints of violations of the provisions of this Act in the establishment, in such manner and within such time as may be prescribed.
Chapter IX
PROMOTION OF STRATEGIES FOR REDUCTION OF RISK
22. Strategies for reduction of risk.
22. Strategies for reduction of risk.—Notwithstanding anything contained in any other law for the time being in force any strategy or mechanism or technique adopted or implemented for reducing the risk of HIV transmission, or any act pursuant thereto, as carried out by persons, establishments or organisations in the manner as may be specified in the guidelines issued by the Central Government shall not be restricted or prohibited in any manner, and shall not amount to a criminal offence or attract civil liability.
Explanation.—For the purpose of this section, strategies for reducing risk of HIV transmission means promoting actions or practices that minimise a person’s risk of exposure to HIV or mitigate the adverse impacts related to HIV or AIDS including—
(i) the provisions of information, education and counselling services relating to prevention of HIV and safe practices;
(ii) the provisions and use of safer sex tools, including condoms;
(iii) drug substitution and drug maintenance; and
(iv) provision of comprehensive injection safety requirements.
Illustrations
(a) A supplies condoms to B who is a sex worker or to C, who is a client of B. Neither A nor B nor C can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the strategy.
(b) M carries on an intervention project on HIV or AIDS and sexual health information, education and counselling for men, who have sex with men, provides safer sex information, material and condoms to N, who has sex with other men. Neither M nor N can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.
(c) X, who undertakes an intervention providing registered needle exchange programme services to injecting drug users, supplies a clean needle to Y, an injecting drug user who exchanges the same for a used needle. Neither X nor Y can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.
(d) D, who carries on an intervention programme providing Opioid Substitution Treatment (OST), administers OST to E, an injecting drug user. Neither D nor E can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.
Chapter X
APPOINTMENT OF OMBUDSMAN
23. Appointment of Ombudsman.
23. Appointment of Ombudsman.—(1) Every State Government shall appoint one or more Ombudsman,—
(a) possessing such qualification and experience as may be prescribed, or
(b) designate any of its officers not below such rank, as may be prescribed, by that Government,
to exercise such powers and discharge such functions, as may be conferred on Ombudsman under this Act.
(2) The terms and condition of the service of an Ombudsman appointed under clause (a) of sub-section (1) shall be such as may be prescribed by the State Government.
(3) The Ombudsman appointed under sub-section (1) shall have such jurisdiction in respect of such area or areas as the State Government may, by notification, specify.
24. Powers of Ombudsman.
24. Powers of Ombudsman.—(1) The Ombudsman shall, upon a complaint made by any person, inquire into the violations of the provisions of this Act, in relation to acts of discrimination mentioned in Section 3 and providing of healthcare services by any person, in such manner as may be prescribed by the State Government.
(2) The Ombudsman may require any person to furnish information on such points or matters, as he considers necessary, for inquiring into the matter and any person so required shall be deemed to be legally bound to furnish such information and failure to do so shall be punishable under Sections 176 and 177 of the Indian Penal Code (45 of 1860).
(3) The Ombudsman shall maintain records in such manner as may be prescribed by the State Government.
25. Procedure of complaint.
25. Procedure of complaint.—The complaints may be made to the Ombudsman under sub-section (1) of Section 24 in such manner, as may be prescribed, by the State Government.
26. Orders of Ombudsman.
26. Orders of Ombudsman.—The Ombudsman shall, within a period of thirty days of the receipt of the complaint under sub-section (1) of Section 24, and after giving an opportunity of being heard to the parties, pass such order, as he deems fit, giving reasons therefor:
Provided that in cases of medical emergency of HIV positive persons, the Ombudsman shall pass such order as soon as possible, preferably within twenty four hours of the receipt of the complaint.
27. Authorities to assist Ombudsman.
27. Authorities to assist Ombudsman.—All authorities including the civil authorities functioning in the area for which the Ombudsman has been appointed under Section 23 shall assist in execution of orders passed by the Ombudsman.
28. Report to State Government.
28. Report to State Government.—The Ombudsman shall, after every six months, report to the State Government, the number and nature of complaints received, the action taken and orders passed in relation to such complaints and such report shall be published on the website of the Ombudsman and a copy thereof be forwarded to the Central Government.
Chapter XI
SPECIAL PROVISIONS
29. Right of residence.
29. Right of residence.—Every protected person shall have the right to reside in the shared household, the right not to be excluded from the shared household or any part of it and the right to enjoy and use the facilities of such shared household in a non-discriminatory manner.
Explanation.—For the purposes of this section, the expression “shared household” means a household where a person lives or at any stage has lived in a domestic relationship either singly or along with another person and includes such a household, whether owned or tenanted, either jointly or singly, any such household in respect of which either person or both, jointly or singly, have any right, title, interest or equity or a household which may belong to a joint family of which either person is a member, irrespective of whether either person has any right, title or interest in the shared household.
30. HIV related information, education and communication before marriage.
30. HIV related information, education and communication before marriage.—The Central Government shall specify guidelines for the provision of HIV related information, education and communication before marriage and ensure their wide dissemination.
31. Persons in care or custody of State.
31. Persons in care or custody of State.—(1) Every person who is in the care or custody of the State shall have the right to HIV prevention, counselling, testing and treatment services in accordance with the guidelines issued in this regard.
(2) For the purposes of this section, persons in the care or custody of the State include persons convicted of a crime and serving a sentence, persons awaiting trial, person detained under preventive detention laws, persons under the care or custody of the State under the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), the Immoral Traffic (Prevention) Act, 1956 (104 of 1956) or any other law and persons in the care or custody of State run homes and shelters.
32. Recognition of guardianship of older sibling.
32. Recognition of guardianship of older sibling.—Notwithstanding anything contained in any law for the time being in force, a person below the age of eighteen but not below twelve years, who has sufficient maturity of understanding and who is managing the affairs of his family affected by HIV and AIDS, shall be competent to act as guardian of other sibling below the age of eighteen years for the following purposes, namely—
(a) admission to educational establishments;
(b) care and protection;
(c) treatment;
(d) operating bank accounts;
(e) managing property; and
(f) any other purpose that may be required to discharge his duties as a guardian.
Explanation.—For the purposes of this section, a family affected by HIV or AIDS means where both parents and the legal guardian is incapacitated due to HIV related illness or AIDS or the legal guardian and parents are unable to discharge their duties in relation to such children.
33. Living wills for guardianship and testamentary guardianship.
33. Living wills for guardianship and testamentary guardianship.—(1) Notwithstanding anything contained in any law for the time being in force, a parent or legal guardian of a child affected by HIV and AIDS may appoint, by making a will, an adult person who is a relative or friend, or a person below the age of eighteen years who is the managing member of the family affected by HIV and AIDS, as referred to in Section 33, to act as legal guardian immediately upon incapacity or death of such parent or legal guardian, as the case may be.
(2) Nothing in this section shall divest a parent or legal guardian of their rights, and the guardianship referred to in sub-section (1) shall cease to operate upon by the parent or legal guardian regaining their capacity.
(3) Any parent or legal guardian of children affected by HIV and AIDS may make a will appointing a guardian for care and protection of such children and for the property that such children would inherit or which is bequeathed through the will made by such parent or legal guardian.
Chapter XII
SPECIAL PROCEDURE IN COURT
34. Suppression of identity.
34. Suppression of identity.—(1) In any legal proceeding in which a protected person is a party or such person is an applicant, the court, on an application by such person or any other person on his behalf may pass, in the interest of justice, any or all of the following orders, namely—
(a) that the proceeding or any part thereof be conducted by suppressing the identity of the applicant by substituting the name of such person with a pseudonym in the records of the proceedings in such manner as may be prescribed;
(b) that the proceeding or any part thereof may be conducted in camera;
(c) restraining any person from publishing in any manner any matter leading to the disclosure of the name or status or identity of the applicant.
(2) In any legal proceeding concerning or relating to an HIV positive person, the court shall take up and dispose of the proceeding on priority basis.
35. Maintenance applications.
35. Maintenance applications.—In any maintenance application filed by or on behalf of a protected person under any law for the time being in force, the court shall consider the application for interim maintenance and, in passing any order of maintenance, shall take into account the medical expenses and other HIV related costs that may be incurred by the applicant.
36. Sentencing.
36. Sentencing.—In passing any order relating to sentencing, the HIV positive status of the persons in respect of whom such an order is passed shall be a relevant factor to be considered by the court to determine the custodial place where such person shall be transferred to, based on the availability of proper healthcare services at such place.
Chapter XIII
PENALTIES
37. Penalty for contravention.
37. Penalty for contravention.—Notwithstanding any action that may be taken under any other law for the time being in force, whoever contravenes the provisions of Section 4 shall be punished with imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which may extend to one lakh rupees, or with both.
38. Penalty for failure to comply with orders of Ombudsman.
38. Penalty for failure to comply with orders of Ombudsman.—Whoever fails to comply with any order given by an Ombudsman within such time as may be specified in such order, under Section 26, shall be liable to pay a fine which may extend to ten thousand rupees and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues.
39. Penalty for breach of confidentiality in legal proceedings.
39. Penalty for breach of confidentiality in legal proceedings.—Notwithstanding any action that may be taken under any law for the time being in force, whoever discloses information regarding the HIV status of a protected person which is obtained by him in the course of, or in relation to, any proceedings before any court, shall be punishable with fine which may extend to one lakh rupees unless such disclosure is pursuant to any order or direction of a court.
40. Prohibition of victimisation.
40. Prohibition of victimisation.—No person shall subject any other person or persons to any detriment on the ground that such person or persons have taken any of the following actions, namely—
(a) made complaint under this Act;
(b) brought proceedings under this Act against any person;
(c) furnished any information or produced any document to a person exercising or performing any power or function under this Act; or
(d) appeared as a witness in a proceeding under this Act.
41. Court to try offences.
41. Court to try offences.—No court other than the court of a Judicial Magistrate First Class shall take cognizance of an offence under this Act.
42. Offences to be cognizable and bailable.
42. Offences to be cognizable and bailable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), offences under this Act shall be cognizable and bailable.
Chapter XIV
MISCELLANEOUS
43. Act to have overriding effect.
43. Act to have overriding effect.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time in force or in any instrument having effect by virtue of any law other than this Act.
44. Protection of action taken in good faith.
44. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Central Government or AIDS Control Society of the State Government Ombudsman or any member thereof or any officer or other employee or person acting under the direction either of the Central Government, the State Government, the Central Government, or Ombudsman in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules or guidelines made thereunder or in respect of the publication by or under the authority of the Central Government, the State Government, the Central Government or AIDS Control Society of the State Government Ombudsman.
45. Delegation of powers.
45. Delegation of powers.—The Central Government and State Government, as the case may be, may, by general or special order, direct that any power exercisable by it under this Act shall, in such circumstances and under such conditions, if any, as may be mentioned in the order, be exercisable also by an officer subordinate to that Government or the local authority.
46. Guidelines.
46. Guidelines.—(1) The Central Government may, by notification, make guidelines consistent with this Act and any rules thereunder, generally to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such guidelines may provide for all or any of the following matters, namely—
(a) information relating to risk and benefits or alternatives to the proposed intervention under clause (n) of Section 2;
(b) the manner of obtaining the informed consent under sub-section (1) and the manner of pre-test and post-test counselling under sub-section (2) of Section 5;
(c) guidelines to be followed by a testing or diagnostic centre or pathology laboratory or blood bank for HIV test under Section 7;
(d) the manner of taking data protection measures under Section 11;
(e) guidelines in respect of protocols for HIV/AIDS relating to Anti-retroviral Therapy and Opportunistic Infections Management under sub-section (2) of Section 14;
(f) care, support and treatment of children infected with HIV or AIDS under sub-section (1) of Section 18;
(g) guidelines for Universal Precautions and post-exposure prophylaxis under Section 19;
(h) manner of carrying out the strategy or mechanism or technique for reduction of risk of HIV transmission under Section 22;
(i) manner of implementation of a drugs substitution, drug maintenance and needle and syringe exchange programme under Section 22;
(j) provision of HIV related information, education and communication before marriage under Section 30;
(k) manner of HIV or AIDS prevention, counselling, testing and treatment of persons in custody under Section 31;
(l) any other matter which ought to be specified in guidelines for the purposes of this Act.
47. Power of Central Government to make rules.
47. Power of Central Government to make rules.—(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing provision, such rules may provide for all or any of the following matters, namely—
(a) manner of notifying model HIV or AIDS policy for the establishments under Section 12;
(b) any other matter which may be or ought to be prescribed by the Central Government.
48. Laying of rules before both Houses of Parliament.
48. Laying of rules before both Houses of Parliament.—Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
49. Power of State Government to make rules and laying thereof.
49. Power of State Government to make rules and laying thereof.—(1) The State Government may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely—
(a) measures to provide diagnostic facilities relating to HIV or AIDS, Anti-retroviral Therapy and Opportunistic Infection Management to people living with HIV or AIDS and for the prevention of spread of HIV or AIDS in accordance with the guidelines under Section 14;
(b) qualification and experience for the appointment of a person as an Ombudsman under clause (a) or rank of officer of the State Government to be designated as Ombudsman under clause (b) of sub-section (1) of Section 23;
(c) terms and conditions of services of Ombudsman under sub-section (2) of Section 23;
(d) manner of inquiring into complaints by the Ombudsman under sub-section (1) and maintaining of records by him under sub-section (3) of Section 24;
(e) manner of making the complaints to the Ombudsman under Section 25; and
(f) manner of recording pseudonym in legal proceedings under clause (a) of sub-section (1) of Section 34.
(3) Every rule made by the State Government under this Act shall be laid, as soon as may be, after it is made before the Legislature of that State.
50. Power to remove difficulties.
50. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty:
Provided that no order shall be made under this section after the expiry of the period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
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