India

India has no HIV-specific law, but the Indian Penal Code has two provisions which may be used to address ‘exposure’ to an illness or disease, including HIV.

Section 269 states that unlawfully or negligently undertaking an act likely to spread an infection dangerous to life is punishable by six months imprisonment and/or a fine.

Section 270 increases the penalty to up to two years and/or a fine when the act is a ‘malignant act’. In both cases, the offence includes not only a person knowing the act is likely to transmit an infection, but also having ‘reason to believe’ the act is likely to transmit an infection; effectively lowering the threshold for a charge to be laid.

There are media reports of at least 16 cases of HIV criminalisation that are known to have taken place in India, with the first case reported in 2006. However, most media reports are very limited in scope and detail, and it is unclear whether issues of transmission risk are routinely considered.

As well as section 269 and 270, a number of other charges have been used in a number of diverse cases of alleged HIV exposure or transmission. Where cases involve allegations of exposure or transmission through sex, charges relating to cheating, murder, dowry death, and abuse have also been used. Seven cases involved alleged exposure or transmission through sex. Five of these involved married couples, with the police laying a variety of charges, including those relating to cheating, fraudulent marriage and abuse. In one of those cases, eight members of an extended family were charged for hiding the HIV-positive status of a husband from his wife. In 2017, a man and his mother were charged with cheating, murder and dowry death after the man’s wife killed herself and their child upon learning her husband had been HIV-positive for more than 15 years, since before they were married. In January 2020, a man was charged with a range of offences under the Indian Penal Code including sections 269 (negligent act likely to spread infection of disease dangerous to life), 270 (malignant act likely to spread infection of disease dangerous to life), 323 (voluntarily causing hurt), 406 (criminal breach of trust), 420 (cheating), and 498A (violence on woman after marriage), after allegedly hiding his HIV-positive status from his wife for some time and transmitting HIV.

Other cases relate to the transfusion of HIV-infected blood to four patients at one hospital, and transfusion of HIV-infected blood to a pregnant woman at another hospital. In October 2020, a laboratory technologist was charged after he allowed blood containing HIV to be infused to a child. Charged with Sections 269 (negligent act likely to spread infection of disease dangerous to life) and 270 (malignant act likely to spread infection of disease dangerous to life) of the Indian Penal Code, some have pushed for an attempted murder charge after allegations the act was done deliberately. Another case reported in October 2024 concerned alleged donations of blood by people living with HIV, apparently motivated by a payment offered to donors, which allegedly uncovered a ‘clandestine network of an illegal blood donation business’. Two people were arrested, however it is unclear under which provision.

There have also been allegations that a woman used a syringe to infect her husband; and four people were charged with section 328 which is used for attempts to harm by poisoning, stupefying, intoxicating or using unwholesome drugs in a case where traffickers of a girl where found to have HIV. In April 2020, an HIV-positive man was arrested after biting the finger of a police officer attempting to force him to return home during COVID-19 lockdown.

In November 2020, the Delhi High Court clarified that a person living with HIV cannot be prosecuted for attempted murder for having unprotected sex, with or without the person’s consent. The case, related to an HIV-positive man’s rape of his stepdaughter. The court found that the appropriate sections of the Indian Penal Code were section 376 (rape) and section 270 (malignant act likely to spread infection of disease dangerous to life).

There is also an HIV-specific omnibus statute which contains an obligation on all people living with HIV, who have been counselled on the nature of HIV and its transmission, to take all reasonable precautions to prevent transmission. This includes adopting strategies for the reduction of transmission risks, or disclosing HIV status to sexual or needle-sharing partners. There are no stated criminal penalties for violating this provision. This law also contains a range of protections of the rights of people living with HIV.