With the spread of Covid-19 in India, section 269 and 270 of the Indian Penal Code came into play and a few were booked under these provisions. Section 269 refers to negligent acts likely to spread infection of disease dangerous to life, while 270 refers to malignant acts likely to spread infection of disease dangerous to life. A person, if found guilty, can be sentenced to imprisonment of a term up to 6 months and 2 years under Sections 269 and 270 respectively, along with a fine. In Sabhajeet Maurya v State NCT of Delhi, a question came up before the court as to whether a person malignly spreading any dangerous disease can be booked for attempt to murder. In this case, the single judge Bench of Justice Vibhu Bakhru held that an HIV positive patient cannot be prosecuted for the offence of attempt to murder if they had sexual intercourse without consent. This highlights the need for thorough strategies to prevent criminal and intentional transmission of HIV and other such STDs. This is because STDs and STIs, especially HIV-AIDS, have lifelong implications on a person’s health and wellbeing, and due to the absence of a well-defined treatment for HIV, there is a higher possibility of death. Such diseases are also different from other ailments in the way that there is a widespread stigma around them, leading to the discrimination of the person suffering from them.
Facts | Sabhajeet Maurya Case
In this particular case, a 15-year-old girl, residing with her stepfather, was suffering from HIV-AIDS. The girl’s mother had passed away in January 2011 due to the same disease. She used to take care of her step-brother, who was also an HIV patient and was admitted to a care home. The case came into being when the girl informed the doctors and workers at the care home that she was being repeatedly raped by her father since April 2011. This girl also became pregnant and she alleged that her father had caused her miscarriage by forcing her to take certain pills. In August 2011, an NGO helped her to file an F.I.R. and register her statement. Pursuant to the F.I.R. filed, the police arrested her step-father who was presented before the trial court. He was convicted by the trial court under Sections 376(commission of rape), 313(causing wrongful miscarriage) and 307(attempt to murder) of the Indian Penal Code. The Trial Court observed that since the step-father was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act which, if resulted in HIV transmission and consequently, the death of the victim from that disease, would amount to murder. It had further reasoned that although Sections 269 and 270 of the IPC provide punishment for spreading infectious diseases, negligently or intentionally, they are not adequate in such a case. Therefore, to ensure justice in the existing ‘legal paraphernalia’, the Court convicted the perpetrator for attempt to murder.
The High Court held that there is unimpeachable corroborative evidence that the girl was raped by the man. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that he was the biological father of the abortus (although the Court held that there was no evidence which proved beyond reasonable doubt that the step-father had administered certain pills to the girl which caused the miscarriage, hence the charge under section 313 was set aside). In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender, however, the Bench did not concur with the Trial Court’s view that her stepfather was guilty of an offence punishable under Section 307 IPC. The High Court held that he can be punished under Section 270 of the IPC.
Reasons for not Convicting under Section 307 IPC
The main issue that can be identified in the case is that whether the absence of specific criminal legislation pertaining to the non-disclosure regarding any STD/STI that a person might be suffering before engaging in any sexual activity with a healthy person, hence putting the latter’s life in danger calls for conviction under a section which entails higher punishment than sections 269 and 270 (which were enacted exclusively for the criminalisation of spreading of infectious diseases).
As per the trial court, the charge for the attempt to murder for an act under Sec 307 is not affected if the victim consented to such an act. This would mean that all sexual activities with an HIV positive person, even if they are consensual, would result in the HIV patient being charged with attempt to murder. Consequently, it would mean any person who knowingly engages in sexual acts with an HIV patient could be convicted for an attempt to suicide and the HIV positive patient could be held liable for attempt to suicide, if not for attempt to murder.
It is clear from a reading of section 307 that for a person to be held liable for attempt to murder, should be responsible for an act, with the knowledge and intention and under circumstances that if he by that act caused death, would be guilty of murder. However, the Bench held that the girl was not raped with the intention of causing her death.
From an understanding of section 300 of the IPC (which defines murder), we can see there are four limbs of the section, and one of the key components of the second, third and fourth limb of this section is that the culpable act should be so inherently dangerous as is likely to cause death; or be sufficient in the normal course of nature to cause death; or in all probability, cause death. The Trial Court’s view that a penetrative sexual assault would in all probability lead to the transmission of the virus, which would in all possibility lead to the death of the victim was not established.
Hence, the High Court held that the Trial Court’s decision was based on surmises and conjectures not backed by scientific evidence and the man was acquitted of the charges under section 307, although he was still convicted under section 376.
International Stance on Criminal Transmission on HIV-AIDS
The Trial Court while giving their decision referred to provisions in various countries regarding non-disclosure of HIV-Positive status before engaging in sexual activities with a person who is HIV-Negative.
In Russia, Articles 131 and 132 of the Criminal Code provide for an aggravated sentence ranging between 8 to 15 years (rather than the basic 3 to 6 years) if the sexual assault leads to infliction of a grave injury or transmission of HIV. New Zealand and the Australian state of Victoria impose criminal liability for non-disclosure for HIV positive status and classify it as ‘conduct endangering life’ through Section22 of Crimes Act 1958 and ‘causing grievous bodily harm’ through Section 188(2) of Crimes Act 1961 respectively.
In Canada, although there is no specific offence in their criminal code, non-disclosure of HIV-positive status, however, is viewed as a fraudulent act that vitiates the consent of the partner and therefore is treated as aggravated sexual assault. In the United States as well, there is no federal law which criminalises HIV Transmission, but certain states like California, Tennessee, and Wisconsin have laws which entail higher punishment for sexual offences committed by HIV-Positive persons. The International Criminal Court, in the case Prosecutor v Jean-Pierre Bemba Gombo held that the transmission of HIV can be an aggravating factor in sentencing.
Concluding Remarks & Suggested Strategies for India
HIV-AIDS impairs the immune system, which provides resistance against all diseases. Due to this, even minor afflictions can take fatal form. Other infections (such as Tuberculosis) coupled with HIV-AIDS lead to a higher possibility of death. Therefore, the unique nature of this disease calls for special strategies.
Certain underprivileged groups have lesser access to HIV prevention information and services, and lack the ability to negotiate innocuous behaviours with their partners due to their marginalized status. The Government of India, enacted the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 which provides for prevention of discrimination, access to healthcare and information. It also serves the purpose of providing progressive measures to reduce the transmission of HIV. However, this act is inadequate in dealing with criminal transmission of HIV and intentional or negligent non-disclosure of HIV-positive status before engaging in sexual intercourse. The United Nations has also called intentional acts of spreading HIV ‘reprehensible’.
Intentional acts of spreading HIV should not be allowed to get away with just 2 years of imprisonment. Provisions should be made in the existing criminal laws for higher punishment for criminal transmission of HIV. Major global conventions have also called for such acts to be treated as an aggravating factor in sentencing. However, to make these measures effective, it is important the stigma around AIDS is reduced and information regarding consensual and safer behaviour is accessible for everyone.
The decisions of the trial court and the high court shed light on the need for focused strategies, dissemination of knowledge and increased access to healthcare services and information for preventing HIV transmission. It also shows the need for stricter punishment for transmission done with criminal intention. As has been highlighted above, treating such an act as an aggravating factor in sentencing is the most viable way forward.
About the Authors, Shivang Mishra and Hrishikesh Reddy Kothwal [2020-25] are pursuing UG Law at National Law University and Judicial Academy, Assam.