The HIV/AIDS Act 2017

THE HUMAN IMMUNODEFICIENCY VIRUS AND ACQUIRED
IMMUNE DEFICIENCY SYNDROME (PREVENTION AND
CONTROL) ACT,  2017
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;
A
ND 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;
A
ND WHEREAS there is a necessity for effective care, support and treatment for Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome;
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EXTRAORDINARY
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PART II — Section 1
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No. 16]  NEW DELHI, FRIDAY, APRIL, 21, 2017/VAISAKHA 1, 1939 (SAKA)
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Separate paging is given to this Part in order that it may be filed as a separate compilation.
REGISTERED NO. DL—(N)04/0007/2003—17
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 21st  April, 2017/V aisakha 1, 1939  (Saka)
The following Act of  Parliament received the assent of the President on the
20th  April, 2017, and is hereby published for general information:—
2 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
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;
A
ND 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. (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.
2. 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;
Short title,
extent and
commencement.
Definitions.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3
(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;
(f) “establishment” means a body corporate or  co-operative 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;
43 of 2005.
4 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
(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, any Limited Liability Partnership under the Limited Liability
Partnership Act, 2008,  any body corporate incorporated by or under the laws of a
country outside India
, a co-operative society registered under any law relating to
co-operative 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;
1 of 1956.
6 of 2009.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 5
(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
P
ROHIBITION OF CERTAIN ACTS
3.  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
Prohibition of
discrimination.
6 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
    (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 pre-requisite 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. 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
I
NFORMED CONSENT
5. (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.
Prohibition
of certain
acts.
Informed
consent for
undertaking
HIV test or
treatment.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7
(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. 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. 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
D
ISCLOSURE  OF HIV STA TUS
8. (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;
Informed
consent not
required for
conducting
HIV tests in
certain cases.
Guidelines for
testing
centres, etc.
Disclosure of
HIV status.
8 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
(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. (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.  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
O
BLIGATION OF ESTABLISHMENTS
11. 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.
Disclosure of
HIV-positive
status to
partner of
HIV-positive
person.
Duty to
prevent
transmission
of HIV .
Confidentiality
of data.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 9
12. The Central Government shall notify model  HIV and AIDS policy for
establishments,  in such manner, as may be prescribed.
CHAPTER VI
ANTI-RETROVIRAL THERAPY AND OPPORTUNISTIC INFECTION MANAGEMENT FOR PEOPLE
LIVING WITH HIV
13.  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. (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
W
ELFARE MEASURES BY  THE CENTRAL GOVERNMENT AND STATE GOVERNMENT
15.  (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.  (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.
17. 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. (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.
HIV and
AIDS policy
for
establishments.
Central
Government
and State
Government
to take
measures.
Anti-
retroviral
Therapy and
Opportunistic
Infection
Management
by Central
Government
and State
Government.
Welfare
measures by
Central
Government
and State
Government.
Protection of
property of
children
affected by
HIV or AIDS.
56 of 2000.
Promotion of
HIV and AIDS
related
information,
education and
communication
programmes.
Women and
children
infected  with
HIV or AIDS.
10 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
(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. 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. (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. 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
P
ROMOTION OF STRATEGIES FOR REDUCTION OF RISK
22. 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.
Obligation of
establishments
to provide
safe working
environment.
General
responsibility
of
establishments.
Grievance
redressal
mechanism.
Strategies for
reduction of
risk.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 11
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
A
PPOINTMENT OF OMBUDSMAN
23. (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. (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.
(3) The Ombudsman shall maintain records in such manner as may be prescribed by
the State Government.
25. 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. 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.
Appointment
of
Ombudsman.
Powers of
Ombudsman.
45 of 1860.
Procedure of
complaint.
Orders of
Ombudsman.
12 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
27. 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. 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
S
PECIAL PROVISIONS
29. 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. The Central Government shall  specify guidelines for the provision of HIV-related
information, education and communication  before marriage and ensure their wide
dissemination.
31. (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, the Immoral Traffic (Prevention)
Act, 1956 or any other law and persons in the care or custody of State run homes and
shelters.
32. 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.
Report to
State
Government.
Right of
residence.
HIV-related
information,
education and
communication
before
marriage.
Persons in care
or custody of
State.
56 of 2000.
104 of 1956.
Recognition
of
guardianship
of older
sibling.
Authorities to
assist
Ombudsman.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 13
33. (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
S
PECIAL PROCEDURE  IN COURT
34. (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. 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.  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
P
ENALTIES
37. 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.  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. 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
Living wills
for
guardianship
and
testamentary
guardianship.
Suppression
of identity.
Maintenance
applications .
Sentencing.
Penalty for
contravention.
Penalty for
failure to
comply with
orders of
Ombudsman.
Penalty for
breach of
confidentiality
in legal
proceedings.
14 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II—
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. 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. No court other than the court of a Judicial Magistrate First Class shall take
cognizance of an offence under this Act.
42. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
offences under this Act shall be cognizable and bailable.
CHAPTER  XIV
MISCELLANEOUS
43. 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. 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. 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. (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;
Prohibition of
victimisation.
Court to try
offences.
Offences to be
cognizable and

Excerpt shown. Open the full act in Lexace.

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