Law in India on AIDS (HIV) 2017

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, came into force on September 10, 2018. It aims to prevent and control the spread of HIV and AIDS in the country and provides for penalties for discrimination against those affected by the virus.  Introduced by senior Congress leader Ghulam Nabi Azad in 2014, the Bill was passed by the Rajya Sabha on March 22, 2017, and a month later by the Lok Sabha on April 12. It received the assent of the President on April 20, 2017.
The Act prohibits discrimination or unfair treatment of HIV-infected people on any grounds. It prohibits denial or discontinuation of healthcare services, right of movement, right to reside, purchase, rent or occupy property and hold public or private office etc.
It prohibits isolation of segregation of an HIV-positive person. Every HIV-positive person has the right to reside in a shared household and use facilities in a non-discriminatory manner.

The Act reads: “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.”

Under the law, no HIV-affected person can be subject to medical treatment, medical interventions or research without informed consent. Further, no HIV positive woman, who is pregnant, can be subjected to sterilisation or abortion without her consent.
No person is compelled to disclose his HIV status except by an order of the court. A breach of violation attracts a jail sentence of up to two years or a fine of up to Rs 1 lakh, or both.

Every establishment is obligated to keep HIV-related information protected. Every HIV-positive person is compelled to take reasonable precautions to prevent the transmission of HIV to other persons.

The state and Centre must make diagnostic facilities, anti-retroviral therapy and opportunistic infection management available to all HIV-infected people, and ensure wide dissemination of the same.
Every state has to appoint one or more Ombudsmen to inquire into violations of the provisions of the Act. Within 30 days of receiving a complaint, the Ombudsman is required to pass an order as he deems fit. Failing to comply with the orders of the Ombudsman attracts a penalty of up to Rs 10,000.
According to the provisions of the Act, no HIV test, medical treatment or research will be conducted on a person without his informed consent and no person shall be compelled to disclose his HIV status for obtaining employment or services, except with his informed consent, and if required by a court order.

The legislation has provisions to safeguard the property rights of HIV positive people which explains that every HIV infected person below the age of 18 years has the right to reside in a shared household and enjoy the facilities of the household.

The act also prohibits any individual from publishing information or advocating feelings of hatred against HIV positive persons and those living with them.

The act seeks to prevent and control the spread of HIV and AIDS and creates mechanisms for redressing the complaints of persons infected with HIV and AIDS.

Government’s role to ensure relief to HIV infected people

As per the Act, Union and state governments shall take measures to:

Prevent the spread of HIV or AIDSProvide anti-retroviral therapy and infection management for persons with HIV or AIDSFacilitate their access to welfare schemes especially for women and children, among others

The government will also issue necessary guidelines with respect to protocols for HIV and AIDS-related diagnostic facilities.

Anti-retroviral therapy and opportunistic infection management will also be applicable to all persons.

The Act has also adopted ‘test and treat’ policy which means that if a person is tested HIV positive during testing, he will be entitled to free treatment by the state and central government.

It also makes it mandatory for the state government to appoint an Ombudsman to inquire into complaints related to the violation of the Act.

Imprisonment on violation of Act

Violation of the act — by publishing information about people living with HIV (PLHIV) or advocating hatred against them — would attract imprisonment ranging from three months to two years or a maximum fine of Rs one lakh or both.

As of now, India has the third largest number of people living with HIV with the number estimated at 21.17 lakhs
In exercise of the powers conferred by sub-section 3 of section 1 of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, the Central Government hereby appoints the 10th day of September 2018, as the date on which the provisions of the said Act shall come into force.

LAW ON HELPING ROAD ACCIDENT VICTIMS- சாலை விபத்தில் பாதிக்கப்பட்டோருக்கு உதவுவது குறித்த சட்டம்

MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
NOTIFICATION
New Delhi, the 12th May, 2015
No. 25035/101/2014-RS.—Whereas the Hon’ble Supreme Court in the case of Savelife Foundation
and another V/s. Union Of India and another in Writ Petition (Civil) No. 235 of 2012 vide its order dated
29th October, 2014, interalia, directed the Central Government to issue necessary directions with regard to
the protection of Good Samaritans until appropriate legislation is made by the Union Legislature;
And whereas, the Central Government considers it necessary to protect the Good Samaritans from
harassment on the actions being taken by them to save the life of the road accident victims and, therefore,
the Central Government hereby issues the following guidelines to be followed by hospitals, police and all
other authorities for the protection of Good Samaritans, namely:-
1. (1) A bystander or good Samaritan including an eyewitness of a road accident may take an injured
person to the nearest hospital, and the bystander or good Samaritan should be allowed to leave immediately
except after furnishing address by the eyewitness only and no question shall be asked to such bystander or
good Samaritan.
(2) The bystander or good Samaritan shall be suitably rewarded or compensated to encourage other citizens
to come forward to help the road accident victims by the authorities in the manner as may be specified by
the State Governments.
(3) The bystander or good Samaritan shall not be liable for any civil and criminal liability.
(4) A bystander or good Samaritan, who makes a phone call to inform the police or emergency services for
the person lying injured on the road, shall not be compelled to reveal his name and personal details on the
phone or in person.
(5) The disclosure of personal information, such as name and contact details of the good Samaritan shall be
made voluntary and optional including in the Medico Legal Case (MLC) Form provided by hospitals.
(6) The disciplinary or departmental action shall be initiated by the Government concerned against public
officials who coerce or intimidate a bystander or good Samaritan for revealing his name or personal details.
(7) In case a bystander or good Samaritan, who has voluntarily stated that he is also an eye-witness to the
accident and is required to be examined for the purposes of investigation by the police or during the trial,
such bystander or good Samaritan shall be examined on a single occasion and the State Government shall
develop standard operating procedures to ensure that bystander or good Samaritan is not harassed or
intimidated.
(8) The methods of examination may either be by way of a commission under section 284, of the Code of
Criminal Procedure 1973 or formally on affidavit as per section 296, of the said Code and Standard
Operating Procedures shall be developed within a period of thirty days from the date when this notification
is issued.
(9) Video conferencing may be used extensively during examination of bystander or good Samaritan
including the persons referred to in guideline (1) above,who are eye witnesses in order to prevent harassment
and inconvenience to good Samaritans.
(10) The Ministry of Health and Family Welfare shall issue guidelines stating that all registered public and
private hospitals are not to detain bystander or good Samaritan or demand payment for registration and
admission costs, unless the good Samaritan is a family member or relative of the injured and the injured is to
be treated immediately in pursuance of the order of the Hon’ble Supreme Court in Pt. Parmanand Katara vs
Union of India & Ors [1989] 4 SCC 286.
(11) Lack of response by a doctor in an emergency situation pertaining to road accidents, where he is
expected to provide care, shall constitute “Professional Misconduct”, under Chapter 7 of the Indian Medical
Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002 and disciplinary action shall be taken
against such doctor under Chapter 8 of the said Regulations.
(12) All hospitals shall publish a charter in Hindi, English and the vernacular language of the State or Union
4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART I—SEC. 1]
territory at their entrance to the effect that they shall not detain bystander or good Samaritan or ask
depositing money from them for the treatment of a victim.
(13) In case a bystander or good Samaritan so desires, the hospital shall provide an acknowledgement to such
good Samaritan, confirming that an injured person was brought to the hospital and the time and place of such
occurrence and the acknowledgement may be prepared in a standard format by the State Government and
disseminated to all hospitals in the State for incentivising the bystander or good Samaritan as deemed fit by
the State Government.
(14) All public and private hospitals shall implement these guidelines immediately and in case of
noncompliance or violation of these guidelines appropriate action shall be taken by the concerned authorities.
(15) A letter containing these guidelines shall be issued by the Central Government and the State Government
to all Hospitals and Institutes under their respective jurisdiction, enclosing a Gazette copy of this notification
and ensure compliance and the Ministry of Health and Family Welfare and Ministry of Road Transport and
Highways shall publish advertisements in all national and one regional newspaper including electronic media
informing the general public of these guidelines.
2. The above guidelines in relation to protection of bystander or good Samaritan are without prejudice to the
liability of the driver of a motor vehicle in the road accident, as specified undersection 134 of the Motor
Vehicles Act, 1988 (59 of 1988).
SANJAY BANDOPADHYAYA, Jt. Secy

HUMAN RIGHTS SITUATION IN INDIA AS ON OCTOBER 2, 2018

Open Letter to the UN Secretary-General

Human rights

Dear Secretary-General,

I write to you in great hope. Your human rights credentials are impeccable. You fought the Salazar and Caetano dictatorships. As UN High Commissioner for Refugees, you put the protection of refugees back at the centre of UNHCR’s work.

Your present visit to India comes at a time of a serious backlash against human rights. I hope you will speak about some of these issues, in your public pronouncements and in your talks with government. Some key questions I hope you will raise are:

Caste and sanitation– As the Government of India observes Mahatma Gandhi’s 150th birth anniversary at the grand conference on sanitation that you will be attending, we ask you to urge the organisers to take a close look at the recommendations of the UN Special Rapporteur on water and sanitation who visited India recently. The rapporteur emphasized that “States cannot fully realize the human rights to water and sanitation without addressing stigma as a root cause of discrimination and other human rights violations”.

The rapporteur also referred to the continuing practice of manual scavenging – a concern that is unlikely to show up in the conference material, or for that matter in the speeches, since the programme does not include representatives of sanitation workers or those who work to defend their rights. Official data shows that more than 50,000 people are engaged in this practice – the number does not include those who clean sewers and septic tanks. The rapporteur added that “the growth in the number of toilets raises concerns that the generations-old practice of imposing sanitary tasks on the lower castes will continue in a discriminatory fashion.”

We hope that you will use the opportunity of your visit to highlight other key human rights issues:

Violence against Muslims– Much of India continues to believe in tolerance, pluralism and inclusion, but Hindu right-wing elements are hacking away at these values and Constitutional principles, one cow-related killing at a time.While violence against religious minorities is not a new phenomenon, an environment in which such attacks are condoned, often even endorsed by elected representatives, has instilled a sense of impunity among the attackers and fear and anxiety among minority communities.

Targetting of human rights defenders– Not content with paralyzing the work of defenders through the Foreign Contribution Regulation Act, the state is using laws such as the Unlawful Activities Prevention Act (UAPA) and the National Security Act to effectively shut them away for long periods. NGOs that cooperate with UN human rights mechanisms have faced reprisals. We urge you to remind the government that dissent is critical for the safeguarding of Constitutional values.

Extrajudicial executions, euphemistically called ‘encounter killings’ are carried out with such breathtaking impunity that they can only be construed as state policy. “Encounters are part of crime prevention,” the police chief of the state of Uttar Pradesh is reported to have said. The Armed Forces Special Powers Act has enabled extrajudicial executions in Jammu and Kashmir and in the states of northeast India such as Manipur. The government has ignored repeated calls by human rights defenders and UN human rights mechanisms to repeal the law.

Violence against women and girls– Rather than focusing on improving investigation and judicial processes and support mechanisms for survivors, the state has resorted to knee-jerk reactions, such as instituting the death penalty for the rape of children, setting up a sex offenders database that does not have the requisite safeguards to ensure the right to privacy and the presumption of innocence.

Jammu and Kashmir– Responding to the recent remote monitoring report by the Office of the High Commissioner for Human Rights, a sputtering, indignant establishment termed the report “fallacious, tendentious and motivated” without providing a substantive response to the allegations made in it. The Kashmir valley is in a tailspin. New Delhi continues to clamp down on fundamental freedoms in that beleaguered state. The use of human shields in military operations, the misuse of the draconian Public Safety Act, and the use of excessive and indiscriminate lethal force have ensured that civil unrest persists. Ordinary Kashmiris continue to live under a state of siege.

International human rights obligations– India continues to ignore its international human rights commitments with insouciance. It fails to report to human rights treaty bodies in time. It has issued standing invitations to the special procedures of the UN Human Right Council but ignores most requests for invitations. During the Universal Periodic Reviews, the Indian delegation chooses to ramble on about the plethora of laws and policies rather than pledge to address gaps and challenges in their implementation. India signed the UN Convention Against Torture in 1997 but is still to ratify it by passing an enabling law.

Refugees– In India, where External Affairs apparatchiks as well as self-styled guardians of ‘Indian culture’ intone, ad nauseum, that ‘the world is one family’, the approach towards refugees in general, and the Rohingya in particular, has been far from hospitable. India refuses to accede to the Refugee Convention and enact a domestic refugee protection law. Refugees therefore automatically fall within laws governing the entry, stay and exit of all foreigners, defined as anyone who is not a citizen of India. These Acts give wide discretionary powers to the State to detain and deport foreigners without due process.

Assam- In this northeastern Indian state with a historical record of migration – and unresolved tensions, often politically motivated – millions of people remain on tenterhooks, left out of an updated ‘National Register of Citizens’ often due to errors in paperwork and a lack of understanding of the process of application and review. Meanwhile, the rhetoric, including by senior functionaries of the ruling party, against irregular migrants has grown strident. The President of the ruling party recently referred to them as “termites”. Echoes of Rwanda?

I urge you to insist in your talks with government that any determination of citizenship must abide by human rights and humanitarian law and standards. The state’s failure in this respect could have disastrous consequences.

Mr. Secretary- General, in late 1976, Mario Soares, your fellow country man as Prime Minister of Portugal spoke out against the then authoritarian rule called the Emergency in India loudly and unequivocally. How can I expect any less from you? For us, socialists, democrats and human rights defenders in India, la luta continua. The struggle continues.

(Ravi Nair is Executive Director of the South Asia Human Rights Documentation Centre).

PROCEDURE FOR FILING IN HUMAN RIGHTS COURT IN TAMIL NADU

Madras High Court
Rev. Sister Flora vs S.Babiolo Viancy on 6 December, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06.12.2017

CORAM

THE HON’BLE MR.JUSTICE M.DHANDAPANI

Crl.O.P.(MD)No.14064 of 2011
and
Crl.M.P.(MD).No.1 of 2011

1.Rev. Sister Flora
Correspondent,
St.Teresa Primary School,
West Marianathapuram,
Dindigul.

2.Arockia Mary … Petitioners/Accused
-Vs-

S.Babiolo Viancy … Respondent/Complainant

Prayer : Criminal Original Petition filed under Section 482 of Cr.P.C, to
call for the records in H.R.C.No.1 of 2010, dated 06.01.2009, on the file of
the learned Principal Sessions Judge, Dindigul, and to quash the same.

!For Petitioners : Mr.N.Ananthapadmanaban
^For Respondent : Mr.V.Karuna

:ORDER
This Criminal Original Petition has been filed to quash the case in H.R.C.No.1 of 2010, pending on the file of the learned Principal Sessions Judge, Dindigul.

2. The first petitioner is the Correspondent of a Private School and the second petitioner was working as the helper maid in the said school. They filed this petition under Section 482 of Cr.P.C., challenging the private complaint lodged by a respondent/complainant, who is the parent of a student of their school. The complaint was filed under Section 200 Cr.P.C. and section 30 of the Protection of Human Rights Act, (Act 10 of 1994) alleging that the petitioners ordered the son of the respondent, who is studying in their school at fifth standard to clean the toilet, which is the violation under Section 12(C) and 12 (D) of the Protection of Human Rights Act, 1993, and threatened him not to disclose the said incident to anybody. Aggrieved by the same, the respondent preferred a complaint before the learned Judicial Magistrate under Section 30 of the Protection of Human Rights Act, (Act 10 of 1994) read with Section 200 Cr.P.C., against which the Criminal Original Petition has been filed.

3. Mr.N.Ananthapadmanaban, learned counsel appearing for the petitioners would submit that the complaint is not maintainable since the complaint was filed under Section 30 of the Protection of Human Rights Act, (Act 10 of 1994), read with Section 200 Cr.P.C. and no penal provision attracts in the said complaint, and if there is any human rights violation, as per the section amounting the violation can be lodged before the Human Rights Commission either by the victim or by any one on behalf of the victim. Chapter-III of the Protection of Human Rights Act, 1993, deals with the power of Human Rights Commission and Chapter-IV deals with the enquiry procedure of the State Human Rights Commission. However, the petitioner choose the wrong forum for lodging the private complaint before the Judicial Magistrate under Section 200 Cr.P.C., for the offences punishable under Section 12(C) and 12(D) of the Protection of Human Rights Act, 1993, and the same was taken on file as P.R.C.No.14 of 2008 and after committal proceedings, the case was taken on file in H.R.C.No.1 of 2010, on the file of the learned Principal Sessions Judge, Dindigul, instead of referring the case before the Human Rights Commission. Hence, the complaint itself is bad in law.

4. I have heard the learned counsel for the petitioners and the learned counsel appearing for the respondent and perused the materials available on record.

5. On perusal of the entire complaint filed by the respondent, it is clear that the complaint did not cause any penal offence implicating the petitioners in the above said crime for the offences punishable under Section 12(C) and 12(D) of the Protection of Human Rights Act. Hence, the complaint filed under Section 200 Cr.P.C. read with Section 30 of the Protection of Human Rights Protection Act, (Act 10 of 1994) before the learned Judicial Magistrate is not sustainable in law. In fact, Section 12(C) and 12(D) of the Protection of Human Rights Act, 1993, is not penal provisions. The above said Sections falls under Chapter-III of the said Act, which describes the Functions and Power of the Commission and Sections 12(C) and 12(D) of the said Act is a recommendatory nature, if at all any human rights violation that can be recommended for the remedial measure for the purpose of adjudication.

6. However, the Hon’ble Division Bench of Andhra Pradesh High Court in A.Goverdhan Reddy v. Superintendent of Police, Allahabad, reported in 1998 Crl.L.J.561, decided the issue on the ground that if any penal provision is attracted, the complaint cannot be instituted straight away before the Special Court, but it has to be instituted only before the Magistrate Court. Thereafter, after following the committal procedure, the Special Court shall try the case.

7. To support his contention the learned counsel for the petitioner relied on a decision of this Court in Dr.S.Sourubarani and another vs. C.Selvi, reported in 2005 (1) LW 139, and the relevant paragraphs are as follows:

?22-A. On this ground alone, quashing the proceedings may not be possible and if at all, a direction could be given to the court concerned, to send the complaint to the Judicial Magistrate concerned, having jurisdiction, to commit the case, if offences are made out. But considering the facts and circumstances of the case and other attending circumstances, in this case, this proceedings need not be followed and the proceedings could be quashed, since there are other materials available, for adopting the latter course.

23. The offences reported in the complaint are under Sections 166, 315, 325, 503 and 509 IPC. Section 166 IPC contemplates punishment, where a public servant disobeyed the law, with intent to cause injury to any person, which is not available in this case, even prima facie, as per the pleadings and therefore, taking cognizance of this offence and compelling the accused to face the trial is unnecessary?.

8. From the above said judgment, if the penal provisions attracted against the petitioners, initially, the said complaint can be entertained by the learned Judicial Magistrate. Thereafter, the learned Magistrate, after following the committal procedures, shall commit the case to the Special Court constituted under Section 30 of the Protection of Human Rights Act, 1993. In the present case, the respondent implicated the petitioners only under Sections 12(C) and 12(D) of the said Act, which did not constitute any offence against the petitioners, even as per the pleadings, there is no prima facie case attracted against the petitioners. Therefore, compelling the petitioners to face the criminal prosecution is unnecessary.

9. The learned counsel for the respondent fairly conceded that the complaint filed by the respondent before the Judicial Magistrate is unsustainable in law. Accordingly, he seeks permission of this Court to file a fresh compliant before the appropriate forum.

10. In the present case, this Court found no material was placed before this Court to entertain the complaint before theMagistrate. However, the petitioner granted liberty to approach the Human Rights Commission which was formed under Section 21 of the Protection of Human Rights Act, 1993.

11. In view of the above, I am inclined to quash the complaint with liberty to the respondent to approach the appropriate forum under the Protection of Human Rights Act, 1993. Accordingly, the private complaint in P.R.C.No.14 of 2008, on the file of the learned Judicial Magistrate No.II, Dindigul, which was taken in H.R.C.No.1 of 2010, on the file of the learned Principal Sessions Judge, Dindigul, is hereby quashed and this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

To

1.The Principal Sessions Judge, Dindigul.

2.The Judicial Magistrate No.II, Dindigul.