Theme: Health & Environment

Bail for using Drugs

Trigger Warning: The following content contains information on drugs and narcotics which some readers may find disturbing. 

Crimes committed in relation to drugs and substances are all cognisable in nature. This means that the police do not need a warrant from a Magistrate to make an arrest. 

If the crime committed is for a small quantity or less than the commercial quantity of drugs or substances, you can apply for bail directly from the police and the same will be granted to you. It may be contingent on furnishing a personal or other bond. 

Crimes committed for a commercial quantity of drugs or substances are considered non-bailable under law. This does not mean that you will not get bail. You can apply in court and the same will depend on the judge’s discretion. You cannot ask for it as a matter of right.

How is the Government taking action against Covid-19?

Typically, the Government response to an epidemic, such as Covid-19, involves two primary laws – the Epidemic Diseases Act, 1897, and the Disaster Management Act, 2005. 

The Epidemic Diseases Act, 1897

The Epidemic Diseases Act, 1897 (“Epidemic Act”) gives the Central Government as well as State Governments the power to take special measures and prescribe regulations to prevent the spread of a dangerous epidemic disease. However, there is no definition of the term ‘Dangerous Epidemic Disease’ under this law.

Throughout the lockdown in India, the Central and State Governments took several actions to control the spread of the disease by:

  • Restricting spread and movement by enforcing lockdowns or curfews.
  • Conducting Covid-19 checks at airports.
  • Travel bans within and between States.
  • Stopping non-essential activities like movie threats, amusement parks etc.
  • Stopping schools from opening and encouraging online teaching methods.
  • Preventing mass gatherings at weddings, funerals etc.
  • Stopping industries and construction activities.
  • Shutting down offices and workplaces.

State Governments also have the power(( Seventh Schedule, Constitution of India, 1950; Section 2, Epidemic Diseases Act, 1897)) to take measures to prevent the outbreak of an epidemic, by prescribing regulations to be enforced with respect to any person or group of people. An example of this would be Delhi Epidemics Diseases, COVID-19 Regulations, 2020, continuously passed by the Delhi Government to restrict gatherings.

The Disaster Management Act, 2005

Since the Covid-19 outbreak is a “Notified Disaster”, the Disaster Management Act, 2005 applies to it and State Governments will get access to appropriate funds in order to respond and provide immediate relief to victims of the disaster. Through this law, the government can take/has taken action to manage the Covid-19 disaster by:

  • Preventing its  danger or threat of spreading. For example, by enforcing lockdowns.
  • Mitigating or reducing its risk, severity or consequences. For example, researching and implementing vaccine trials in India.
  • Capacity-building and preparing to deal with Covid-19. For example, opening Covid-19 testing centres and camps across states.
  • Assessing the severity or magnitude of the effects of Covid-19. For example, taking surveys and tracking cases through applications such as Aarogya Setu.

The Government imposes periodical lockdowns by giving a set of directions to all Ministries/Departments of the Government of India, State/Union Territory Governments and State/Union Territory Authorities.((  Disaster Management Act, 2005; Epidemic Diseases Act, 1897.)) These lockdown orders are published on the Ministry of Home Affairs website.

Admission and Discharge in Mental Health Establishments

Admission and discharge in a mental health establishment can be in the following ways:

In the independent mode of admission and discharge, the person has the capacity to make mental health care and treatment decisions, or requires very less support in making such decisions. Therefore, as an independent patient, one consents to every treatment decision. The person is also free to discharge themselves from the establishment.

In the supported mode of admission and discharge,  the person with mental illness does not have the capacity to make mental health care and treatment decisions, or requires very high support in making such decisions.

In addition, separate rules exist for admission as a minor.

  1. The Mental Healthcare Act, 2017 [↩]

Sources of Noise Pollution

Noise pollution is largely a by-product of industrialisation, urbanisation and modern civilisation. Noise pollution has two sources(( Noise Pollution (V), In re, (2005) 5 SCC 733. )) i.e. industrial and non-industrial.

  • The industrial source includes the noise from various industries and big machines working at a very high speed and high noise intensity.

  • Non-industrial source of noise includes the noise created by transport/vehicular traffic and the neighbourhood noise generated by various noise pollutants can also be divided into categories, namely, natural and man-made.

Most leading noise sources are:((Noise Pollution (V), In re, (2005) 5 SCC 733. ))

Road Traffic Noise

Noise from the motors and exhaust systems of large trucks are common sources of noise pollution. For instance, the interaction of tyres with the roadway by trucks, buses, and private autos cause noise pollution. In cities, the main sources of traffic noise are the motors and exhaust systems of autos, smaller trucks, buses, and motorcycles. Read more on noise from vehicles here.

Noise from Aircraft

Aircraft are a major source of noise pollution and the law prescribes noise limits on airports depending on the aircraft movement and the area where the aircraft is situated, i.e industrial area or commercial area.

Noise from Railroads

The noise from locomotive engines, horns and whistles, and switching and shunting operations in rail yards are sources of noise pollution. For example, rail car retarders which is a device that reduces the speed of a freight unit or a railway coach, can produce a high-frequency that can reach peak levels of 120 dB at a distance of 100 feet.

Construction Noise

The noise from the construction of highways, city streets, and buildings is a major contributor to the noise and air pollution in cities. For example, construction noise sources include:

  • Air Hammers

  • Air compressors

  • Bulldozers

  • Loaders and

  • Dump trucks

Noise from Industrial Activity

Fans, motors, and compressors mounted on the outside of industrial buildings may disturb people living near noisy manufacturing plants. Above all, noise from machines and industries have a significant impact on industrial workers, among whom noise-induced hearing loss is unfortunately common.

Noise in Buildings

Internal building noise from plumbing, boilers, generators, air conditioners, and fans, can be audible and annoying. Improperly insulated walls and ceilings can reveal the sound of amplified music, voices, footfalls, and noisy activities from neighbours. External noise from emergency vehicles, traffic, refuse collection, and other city noises can be a problem for urban residents. Especially when the windows are open.

Noise from Consumer Products

Certain household equipment, for instance, vacuum cleaners and some kitchen appliances are common sources of noise noisemakers, although their contribution to the daily noise levels is usually not very large.

Fireworks

Indian festivals like Diwali, marriages, etc. use fireworks during celebrations.

However, bursting firecrackers is a health hazard since it is responsible for both air pollution and noise pollution. The noise created is hazardous, can lead sometimes to non-recoverable hearing loss.

What is gender affirmative therapy and corrective surgery for LGBTQ+ persons?

Typically, those who do not identify with the gender assigned to them at birth may want to go through surgeries to align more strongly with their chosen gender. However, a person does not have to go through any surgeries to be given recognition with their self-identified gender.((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )). In this regard, given below are two of the most common forms of surgeries performed:

  • Gender Affirmative Therapy (GAT) is a set of procedures, from psychological counselling to sex reassignment surgeries, which aim to change a persons appearance so that it will conform more strongly with the self-identified gender.  For example, Rita was identified to be female at birth, but while growing up, identifies herself as male, and may undergo GAT to masculinize her appearance through breast removal surgery, etc.

The Supreme Court((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )) has held that it is a constitutional right for a person to be affirmed as male or female after the respective GAT, and that there is no impediment, legal or otherwise, in undergoing GAT.

  •  Corrective surgery/intersex surgery refers to procedures done to modify sex characteristics and genitals when they are anomalous, meaning when there is no clear distinction between male and female genitals.  For example, a child, Nakul, is born with both male and female genitalia, and decides that he self-identifies and feels that his gender is male, and thus, undergoes corrective surgery to align more strongly to the male gender.

Though nation-wide regulations do not exist, some states, like Tamil Nadu, have banned unnecessary medical procedures on infants, to prevent illegal corrective surgery at a young age((Arunkumar vs The Inspector General Of Registration (WP(MD) No. 4125 of 2019 )).

Procedure for GAT and Corrective Surgery

In India, there are no guidelines for eligibility, procedure, etc. or laws on GAT or Corrective Surgery.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

Can an abortion be conducted after 20 weeks of pregnancy?

Except in case of emergeny abortions, the law does not state who can take a decision if an abortion is required after 20 weeks. Legally, doctors are not allowed to decide on this. So, the only recourse for a pregnant woman will be to approach the Courts allow the abortion.

There are many cases where a request has been made to the Courts to abort the fetus after 20 weeks, for several reasons such as:

  1. The pregnancy is harmful to the health of the woman.
  2. The pregnancy would result in abnormalities for the baby.
  3. The pregnancy was caused by an act of rape.
  4. The abortion could not be done before 20 weeks because of the negligence of medical authorities.

Courts usually refer such cases to a Medical Board or a Medical Panel set up in hospitals, to look into the pregnancy and determine whether the abortion should be conducted, taking into account the health and well-being of both the mother and the fetus. After carefully considering the opinion of the Board or Panel, they decide whether the abortion beyond 20 weeks should be allowed.

The decisions made by Courts are usually on a case-to-case basis. For example, the Kerala High Court1 dismissed a couple’s plea to abort a 35-week-old fetus. The couple had requested the abortion for medical reasons because the fetus has serious developmental brain anomalies. The Punjab and Haryana High Court(( Kavita and Another v. Post Graduate Institute of Medical Education and Research, through its Director and Others, CWP No. 11394 of 2020. )) has decided to look into the issue of abortion after 20 weeks of pregnancy.

For more information on access to safe abortions, please refer to this government handbook.

  1. Akhila Kurian Alias Akhila Ann Baby v. Union of India, WP (C) No. 27842 of 2020. [↩]

What are the offences under this law?

Crime  Law Punishment 
Prohibition on use of stream or well for disposing polluting matter Intentionally polluting or allowing the entry of poisonous, harmful, contaminating material into any stream, sewer or land(( Section 24(1)(a), The Water (Prevention and Control of Pollution) Act, 1974)) Or Allowing the introduction of any matter that might obstruct the flow of the water or stream, which can make pollution worse as a cause or of its consequences((  Section 24(1)(b), The Water (Prevention and Control of Pollution) Act, 1974.)) is prohibited.
Except if the State Government (after consultation with the State Board) has excused any persons from meeting these conditions. (( Section 24(3),The Water (Prevention and Control of Pollution) Act, 1974.)) 		 The punishment is jail time for one and half years up to six years, with fine. (( Section 43, The Water (Prevention and Control of Pollution) Act, 1974.))
Failure to comply with the directions of the State Board When a person or industry fails to follow the directions that the the State Boards have given about: the flow of volume of discharge into the water stream and provide the information required(( Section 20(2), The Water (Prevention and Control of Pollution) Act, 1974.)) the installation, construction or operation of a disposal system for any establishment for preventing and controlling water pollution (( Section 20(3), The Water (Prevention and Control of Pollution) Act, 1974.)) The punishment is jail time for three months and fine upto Rs. 10,000, which if the failure to comply continues, attracts an additional fine of Rs. 5,000 per day.  (( Section 41(1), The Water (Prevention and Control of Pollution) Act, 1974.))
Failure to follow the any order of the Board with respect to emergency measure or a direction of the Courts 

Other Acts

 Failure to abide by any order of the State Board for immediately restraining or forbidding a person from discharging poisonous, harmful or contaminating matter into a stream or well or land or making it unclean for use(( Section 32(1)(c),The Water (Prevention and Control of Pollution) Act, 1974.))
Failure to follow an order of the Court for restraining polluting activities(( Section 33(2), The Water (Prevention and Control of Pollution) Act, 1974))
Failure to follow any direction made by the Central Government about water pollution(( Section 33A, The Water (Prevention and Control of Pollution) Act, 19))
If the failure to follow the above-mentioned orders and direction continues for more than one year, after the date of initial conviction. (( Section 41(3), The Water (Prevention and Control of Pollution) Act, 1974.))
If a person-destroys, pulls down, removes, injures, demolishes any pillar, post or pole, that is fixed in the ground or any notice is placed upon it or any matter is inscribed on it or placed by it or is under the authority of the Board. or Obstructs any other person, who is performing the orders or directions of the Board, from exercising their functions under law. Damaging any property belonging to the Board. Fails to provide information required to any officer of the Board Fails to inform the Board or other agencies of any accident or incident which results in discharge of excess effluents into the water bodies. Fails to provide information required of them for the purposes of reducing and preventing water pollution or intentionally making false statements. Makes false statements about the discharge outlets and standards of effluents, to get the consent of the Board . (( Section 42, The Water (Prevention and Control of Pollution) Act, 1974.))		 The punishment is jail time for one year and six months, which might extend to six years with fine. An additional fine of Rs. 5000 per day, can also be levied if the failure to comply continues. ((  Section 41(2), The Water (Prevention and Control of Pollution) Act, 1974.))

The punishment is jail time for two to seven years, with fine. ((  Section 41(3), The Water (Prevention and Control of Pollution) Act, 1974.))

The punishment is jail time upto six months with a fine of Rs. 10,000.(( Section 42, The Water (Prevention and Control of Pollution) Act, 1974.))
Operation or establishment of an industry without the consent of the Board If an industry or its operations or any treatment or disposal plant is established without the prior permission of the State Board((  Section 25, The Water (Prevention and Control of Pollution) Act, 1974.)), Or Any industry or process discharges sewage or effluents into the water stream or well or sewer or land, in excess of the standards laid down by the State Board and without the Board’s consent. (( Section 26, The Water (Prevention and Control of Pollution) Act, 1974.)) The punishment is jail time of two to six years with fine(( Section 44,The Water (Prevention and Control of Pollution) Act, 1974.)). Furthermore, a higher water cess can be levied. (( Schedule II, The Water (Prevention & Control of Pollution) Cess Act, 1977.))

The punishment is jail time for one year and six months up to six years with fine.(( Section 45, The Water (Prevention and Control of Pollution) Act, 1974.))
If a person is found guilty under this provision, more than once, then there would be stronger punishment for the second and every subsequent conviction.(( Section 45, The Water (Prevention and Control of Pollution) Act, 1974.))
Acts for which no punishment has been laid down by law Any other polluting acts or acts that contaminate water bodies or acts which restrict the prevention and control of water pollution or affect water purity The punishment is jail time upto three months with a fine of Rs. 10000. On Continued contravention of law, an additional fine of Rs. 5000 will also be levied. (( Section 45A,The Water (Prevention and Control of Pollution) Act, 1974))
Environmental pollution: pollution of air, water or land Violation of any provision of the Environmental Protection Act, 1986 i.e pollution of air, water or land or any harm to the environment. The punishment is jail time upto 5 years and a fine that may extend to one lakh rupees. Continued failure to comply with the law will lead to an additional fine of Rs. 5000 for every day of non-compliance.(( Section 15, Environmental Protection Act, 1986.))
Contaminating public spring or water reservoir If a person intentionally and voluntarily, contaminates or pollutes the water of a public spring or reservoir, in order to make it unfit for use or consumption (( Section 277, Indian Penal Code 1860.)))) The punishment is jail time upto three months and fine upto Rs. 500 or both. (( Section 277, Indian Penal Code 1860.))
Releasing of harmful pollutants  into the environment Releasing harmful pollutants into the environment forms is inclusive of water pollution and forms part of the offence of public nuisance(( Ratlam Municipality v. Vardhi Chandra, 1980 AIR 1622.)) The  punishment is a  fine of Rs. 500.(( Section 290, Indian Penal code, 1860.))
Engaging in activities that are harmful to the health and physical comfort of the community  Operating industries and other processes that pollute water bodies and groundwater, and which  cause harmful health issues as well as discomfort to the people. This includes any conduct of any such trade or business that is harmful and causes imminent danger to the health of the people and threatens their physical discomfort.(( Section 133, Code of Criminal Procedure, 1973.)) An order under Section 133 Code of Criminal Procedure, 1973 for removal of nuisance can be passed by the Magistrate to stop such activities

What is the National Air Quality Monitoring Programme?

The Central Pollution Control Board established the National Air Quality Monitoring Programme (NAMP) to track air quality across 29 states and 6 union territories. The aim of NAMP is to:(( Central Pollution Control Board, available at  https://cpcb.nic.in/about-namp/.))

  • Determine the status and trends of ambient air quality.
  • Determine whether the prescribed ambient air quality standards are being violated.
  • Identify cities that do not meet the National Ambient Air Quality Standards (NAAQS) over a 5-year period consistently and designate them as non-attainment cities.
  • Gather knowledge and proper understanding for developing preventive and corrective measures.
  • Understand the natural cleaning process taking place in the environment through pollution dilution, dispersion, wind-based movement, dry deposition, precipitation and chemical transformation of pollutants.

 

The NAMP monitors the four major pollutants as part of the AQI – sulphur dioxide, oxides of nitrogen, respirable particulate matter and fine particulate matter. It also checks wind speed and direction along with relative humidity and temperature.

The NAMP is a result of the joint efforts of the Central Pollution Control Board, State Pollution Control Boards, Pollution Control Committees and National Environmental Engineering Research Institute (NEERI), Nagpur.

 

Transparency in Rates of Medicines and Treatments

The law regulates all costs that are levied on patients for services, tests and treatments rendered by medical establishments.(( Charter of Patients Rights, Ministry of Health and Family Welfare)). This prevents overcharging and ensures that medicines are accessible for the public.

Transparency of Rates and Charges

All clinical establishments have to clearly display the rates that they charge for each service.(( Section 9 (i), Clinical Establishments (Central Government) Rules, 2012)).This creates transparency and helps patients take an informed decision about their treatment.  Physicians have to prioritise the interest of patients over their own financial gains.(( Section 1.8, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002)).They should announce their fees before beginning a treatment so that the patient can make a well-informed choice. Further, patients have the right to receive a detailed, itemised receipt of the costs incurred in their treatment. For instance, details of treatment costs have to be provided by clinical establishments in the form of a brochure/booklet of rates of services.

Rates of Medicines

To protect patients from getting overcharged, clinical establishments should charge authorized rates for each type of procedure and service. An authorized range of rates is issued by the Central Government (with the help of National Pharmaceutical Pricing Authority) from time to time, in consultation with the State Governments.(( Section 9 (ii), Clinical Establishments (Central Government) Rules, 2012))

To secure quality healthcare for all, the Government releases Drug Price Control Orders from time to time.(( Section 3, Essential Commodities Act, 1955)).These orders control the prices of essential drugs at rates that are easily affordable for the average person.  The hospital administration has the responsibility to sell medicines, devices and implants at maximum retail price (MRP) rates and not at higher rates.

Further, India also has a National List of Essential Medicines (NLEM) which forms the basis of drug price regulation in the country.

Rates of Medicines

State governments also notify their own lists of essential medicines, depending on their requirements.  Additionally, the Central government notifies the fixed rates for medicines under its various health schemes:

  • Life-saving drugs under the Central Government Health Scheme (list)
  • Generic drugs under the Central Government Health Scheme (list)
  • Branded drugs under the Central Government Health Scheme (list)
  • Medicines available under the Pradhan Mantri Jan Aushadhi Yojana

Further, you can buy medicines online at reasonable prices from the Jan Aushadhi Sugam (Generic medicines available at affordable rates)

Selling Cigarettes

There are some prohibitions and restrictions when it comes to selling cigarettes. It is illegal(( ​​Section 77, Juvenile Justice Act; Section 6, The Cigarettes and Other Tobacco Products Act, 2003.)) to:

  • sell cigarettes or tobacco products to people under 18
  • sell cigarettes or tobacco products within 100 yards of any educational institution

If you are caught selling cigarettes to minors (under 18), a police officer can detain you and take you to the Magistrate in 24 hours.  You will be punished with jail time up to seven years and a fine up to one lakh rupees.