Must We Criminalise Silence?

**Navaneeta and Gokul

Introduction

What should the law do when a person living with Human Immunodeficiency Virus chooses not to disclose their status before engaging in consensual, unprotected sex? At first glance, this seems like a clear case of deception with potentially grave consequences. Yet a closer look reveals a dilemma: between the rights of the HIV-positive person to privacy and dignity, and the rights of their partner to informed consent and safety.

To measure the proximity of this problem and the criminal liability that arises therefrom in our daily lives, it is useful to invoke the harrowing story of Gisele Pelicot, drugged and raped by strangers in a scheme facilitated by her own husband. Among the rapists was a man living with HIV. Beyond the brutality of the assault lay a thornier legal question: should he be punished more severely than the others, for the additional risk he posed?

This blog argues that India’s current framework is fragmented and overbroad. We argue that criminal law should be reserved only for cases of intentional transmission. In other cases of non-disclosure – especially where stigma drives silence, civil remedies in the form of damages and public health measures are more effective.

The HIV, AIDS, and Where Medicine Stands

The Human Immunodeficiency Virus (HIV) is transmitted principally through bodily fluids such as blood, semen, vaginal secretions, breast milk, and during pregnancy or delivery. Left untreated, it can progress to Acquired Immunodeficiency Syndrome (AIDS), which opens the door to opportunistic infections such as tuberculosis, cryptococcal meningitis, severe bacterial infections, cancers such as lymphomas and Kaposi’s sarcoma, and certain cancers. HIV is detectable, on average, anywhere between 2 and 12 weeks of infection, and the accuracy of these tests depends on the viral load in the blood.

Reassuringly, the story of HIV has improved over the decades. With antiretroviral therapy (HAART), viral load can be suppressed to undetectable levels, dramatically lowering transmission risks and restoring life expectancy.

What medicine has achieved, society has not matched. In India, stigma remains pervasive. People living with HIV face discrimination in employment, housing, and intimate relationships. The fear of ostracisation often motivates silence. A culture of shaming and ostracising HIV patients leads to avoidance, neglect and a wilful suppression of the illness by the host, further depleting progress in our tussle against the epidemic.

Breaking down the Problem Framework

To begin with, this essay does not capture instances where two parties engage in consensual sexual intercourse with neither party having awareness of their HIV-positive status. It is outrightly unreasonable to attribute criminality while labouring under ignorance, and this falls squarely within the defence of a mistake of fact. 

However, the scenarios of interest to this piece are interactions between one HIV-positive party, “aware” of their carrier status, and a non-HIV carrier, the “other party”. We break this down further into four possible scenarios:

1. Ignorant non-disclosure: Person A knows they are HIV-positive but does not understand the consequences of silence.
2. Wilful non-disclosure: Person A knows and conceals their status, though without intent to transmit
3. Intentional transmission: Person A hides their status with the intention of infecting another.
4. Informed consent: Person A discloses their status, and Person B knowingly consents to sex.

This classification shall serve as a useful framework for analysis as this piece proceeds.

Where the law stands 

India’s legal framework on HIV non-disclosure is, at present, fragmented, discordant and overbroad. The HIV Act, 2017, in Section 10, speaks of “reasonable precautions,” implicitly recognising the importance of disclosure, but it stops short of prescribing penal consequences in the absence of disclosure by a HIV positive individual. This omission is not accidental; Parliament sought to safeguard dignity and prevent further stigma. Yet, this legislative restraint is undermined by the broader sweep of the Indian Penal Code (now Bharatiya Nyaya Sanhita). Sections 271 and 272 that criminalise negligent and malignant acts “likely to spread infection of any disease dangerous to life.” Courts have read these provisions (more precisely – their identical predecessors in the IPC) expansively. In Sabhajeet Maurya v. State (NCT of Delhi), for instance, a trial court treated HIV transmission as an “attempt to murder” under Section 307 of the IPC:

“if by the act the death of the prosecutrix would have been caused, he would be been guilty for the murder. […] the accused transmitting life threatening disease to another person intentionally with knowledge that the same is likely to cause death of that other person, this court is of the opinion that under the given circumstances such person is also liable to be charged for the offence under Section 307 IPC.”;

Although the Delhi High Court later resisted this conflation, the episode illustrates the ease with which criminal law can slide from prevention to over-punishment.

Equally significant is the jurisprudence on consent. Indian courts have long treated consent vitiated by fraud as no consent at all. The logic in cases such as Sonu @ Subhash Kumar v. State of UP, where false promises of marriage invalidated sexual consent, could easily be transposed: a partner’s silence about HIV status might be construed as deceit, rendering consent void. Abroad, this reasoning has already been tested. In Canada’s R. v. Cuerrier [Cuerrier], the Supreme Court of Canada held that non-disclosure of HIV status constituted fraud vitiating consent, exposing the accused to prosecution for aggravated sexual assault under s. 265 (1), read with s. 265 (3)(c) of the Canadian Criminal Code. 

Cuerrier’s use of the word “dishonesty” implies a positive legal duty to disclose, as opposed to a mandate to refrain from lying alone. As signalled later in R v. Mabior, the origin of such a duty is in the high quantum of harm that may otherwise befall, in the absence of such disclosure. In Indian law, Section 375 of the IPC (Section 63 of BNS) defines the offence of “rape” and talks of consent as a central pre-requisite for a legally acceptable sexual intercourse. Section 90 of the IPC states that consent is vitiated if:

“[given] by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception”

Of specific interest here is the word ‘misconception’, which has been held to be wide enough to include deceit, fraud and all forms of misrepresentation. 

Activist Indian Courts wouldn’t find it hard to decide in favour of blanket impositions of the duty of disclosure and enforce Cuerrier-like tendencies. The case of Dr. Tokugha Yepthomi v. Apollo Hospital Enterprises Ltd where the Supreme Court ruled in favour of public health and held that knowingly entering into marriage while being HIV-positive, without informing the spouse, constitutes a clear offence under Section 270 of the IPC, is a case in point. 

While attractive for its clarity, the Cuerrier doctrine has been widely criticised for blurring the line between silence and predation, and for entrenching stigma. India’s current framework, with its mix of a cautious HIV statute, sweeping penal provisions, and flexible judicial reasoning, leaves the field uncertain and vulnerable to similar overextension.

What the Law Ought to Say

If we apply the four-scenario framework, the deficiencies of the current approach become clear. Not every instance of non-disclosure warrants the heavy hand of criminal law. The case for liability is strongest in Scenario C, where a person intentionally conceals their HIV status with the purpose of transmitting the virus. Here, culpability flows not from silence alone, but from malicious intent, and existing provisions under Sections 269 and 270 of the IPC can be justifiably applied. By contrast, Scenario D, where status is disclosed and sex occurs with informed consent, should never fall within the criminal net; autonomy demands respect even in difficult choices.

The more challenging Scenarios are A and B, where aware carriers are caught in conflict with law due to ignorance or wilful concealment without intent to transmit. Especially Situation B. in differentiation with C reflects the fine margin of difference in the mens rea standards of Sections 271 and 272 of the BNS. The former prosecutes a negligent transmission, as opposed to a malignant transmission in the latter. Here, the instinct to criminalise is powerful but misguided; and, strongly advise dispassionate caution. Public health evidence shows that criminal prosecutions in these contexts drive HIV underground, discouraging testing and disclosure, and thereby increasing transmission risk. International guidance, from UNAIDS to the Oslo Declaration, consistently warns against over-criminalisation for precisely this reason. In these scenarios, civil remedies – such as damages for medical costs or breach of trust – strike a better balance between accountability and dignity. A legal framework that distinguishes sharply between malicious transmission and negligent silence is more consistent with the unique and nuanced public health imperatives that surround HIV. 

Striking the Balance

We can take a leaf of wisdom from the 2012 Oslo Declaration on HIV Criminalisation. Clause 5 of the Declaration states that if a general law is used for HIV-related prosecutions, for e.g. s. 271-272, BNS and Sabhajeet – the exact nature of the rights and responsibilities of people living with HIV under such law should be explicitly clarified. Such fine-tuned clarity is absent and must be brought in urgently. 

At the Judicial front, India should resist the temptation to import Cuerrier’s broad doctrine or to stretch general provisions like Sections 109 and 271 of the BNS into the domain of HIV-related sexual health. There is an imminent legislative necessity to articulate a narrow rule: only intentional transmission of HIV justifies criminal liability. All other cases of non-disclosure should be channelled into damages and civil remedies or addressed through the HIV Act’s public health mechanisms. We impress upon the Judiciary to exercise restraint and limit punitive liabilities to fines alone – should the need arise. Such an approach preserves proportionality by reserving punishment for malice, while recognising that negligence or silence, though harmful, are better addressed outside the prison system.

At the same time, reform cannot be confined to the penal code. Protecting the confidentiality of people living with HIV is essential if disclosure is to become socially feasible. Without such safeguards, criminalisation will only reproduce stigma. A forward-looking framework would therefore combine three strands: penal law tailored narrowly to malicious conduct, civil/ damages-based responsive to negligent harm, and public health law attentive to dignity and privacy. Only such a calibrated balance can reconcile the demands of consent, autonomy, and justice in the age of HIV. The final position of the law, we hope, will be filtered through successive lenses of empathy, proportionality and regard for social realities.

**Navaneeta is an LLM Candidate in Criminal Law and Criminal Justice at the O.P. Jindal Global Law School.

**Gokul works for an independent research institution in Mumbai.

**Their views are personal and do not reflect the views of their respective institutions.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.