Theme: Health & Environment

Powers of police and authorities – Search, Seize and Arrest

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

Police officers and certain other authorities have wide powers to search and arrest people in relation to crimes committed under this law, and in many cases without a warrant.(( Section 42, Narcotic Drugs and Psychotropic Substances Act, 1985))

Search a place or a vehicle 

If the police officer has reason to believe, either from their own findings or receive written information about a crime being committed in relation to narcotic drugs, psychotropic or controlled substances, they can enter any building, place or vehicle like a car, truck, etc and search the same. If anyone obstructs their entry, they can even break open the door or remove any obstacle in their way. 

Searching a person

If an authorised police officer wants to search you, you can ask the search to be conducted in the presence of a magistrate or certain gazetted officers. Once you make this request, you can be detained by the police officer till you can be brought before a magistrate or an appropriate gazetted officer. However, if the police officer believes that it is not possible to wait for a gazetted officer or a magistrate, he can proceed with the search.((  Section 50(5), Narcotic Drugs and Psychotropic Substances Act, 1985))

Please note that women can only be searched by a woman officer. 

Seizure

In the process of the search, the police officer also has the power to seize the following: 

  • Drugs, substances and anything used to manufacture it 
  • Any article, vehicle or animal that may have been used in the process
  • Any documents or articles that can be evidence and prove that a crime in relation to drugs was committed

Arrest

While carrying out the search and seizure, if the police officer believes that a crime has been committed in relation to drugs or narcotics, he can even arrest the suspected person. He may not always need a warrant for such an arrest.(( Section 42(1)(d),  Narcotic Drugs and Psychotropic Substances Act, 1985))

These powers of search, seizure and arrest of a police officer also extend to a public place like a hotel, restaurant, shop or any other place accessible to the public.(( Section 423,  Narcotic Drugs and Psychotropic Substances Act, 1985))

You have certain rights when you are arrested. To know more about these rights, please read here.

Immediate Cases – No Warrant Needed

While ideally this search and seizure has to be done in the day time, i.e. between sunrise and sunset and with a warrant from an appropriate judge, if the police officer believes that in the time taken to obtain the warrant the necessary evidence could be concealed or the suspect may escape, he can carry out the search and seizure without a warrant. In such cases he will have to note down his reasons for doing this in writing and inform his immediate supervisor within 72 hours.(( Section 42(2)(d),  Narcotic Drugs and Psychotropic Substances Act, 1985))

 

How is Covid-19 testing done in India?

Covid-19 Tests

The following Covid-19 tests are done in India(( Testing Stratgey, Indian Council for Medical Research, available at, https://www.icmr.gov.in/pdf/covid/strategy/Testing_Strategy_v6_04092020.pdf)):

Rapid Antigen Test (RAT): 

An antigen refers to any foreign matter or viral proteins in the body that triggers an immune response. This test helps identify the antigens related to the Covid-19 virus. Antigen test, also known as rapid antigen test, is a rapid diagnostic test, but these tests have a higher chance of missing an active infection. 

RT-PCR: 

RT-PCR is a method of testing that is used to directly detect the presence of the virus in the sample. The test detects the RNA(Ribonucleic acid) of the virus which is the genetic material of the virus. 

TrueNat 

TrueNat is a chip-based, portable RT-PCR machine, originally developed as a portable diagnostic tool for tuberculosis. The latest versions of the TrueNat machine can detect an enzyme (called RdRp) found in the RNA of the coronavirus SARS-CoV-2.

Antibody test

An antibody test, also known as Serology test, is a screening test for Covid-19 antibodies in the blood. It tells if someone was previously infected with the virus that causes Covid-19. The antibody test does not look for the active virus but checks whether the immune system has responded to the infection.

Costs of Covid-19 Tests

The Government  has arranged for  free Covid-19 testing  at approved laboratories across India. Although the test is not free in private labs and hospitals, the Supreme Court(( Shashank Deo Sudhi v. Union of India, 2020 SCC OnLine SC 358)).has stated that free testing should be done for the poor who are eligible under the Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana. Beneficiaries of this scheme will be able to  access  free testing in private labs and access to Covid-19 treatment at government empanelled hospitals.

To get tested  free of cost, a person can go to any government hospital. Calling the helpline numbers before getting a test done will enable a person to get updated information. Please see here for the list of government and  private clinics for testing of Covid-19, as released by Indian Council of Medical Research.

Zone-wise Noise Standards/Limits

Every State Government categorizes areas into the following, where various noise standards/limits have to be followed:  

  • Industrial
  • Commercial
  • Residential 

 

Development authorities, local bodies and other authorities while planning developmental activity or carrying out functions relating to town/country planning have the responsibility to avoid noise menace and maintain noise standards. For example, the Supreme Court in a case, asked a business manufacturing utensils to reduce noise and bring it within permissible noise limits, as it was disturbing the neighbourhood including teachers, students and neighbours near the business premises. 

 

Noise Standards in India

Depending on the area or zone, there are noise limits/standards which need to be maintained. If it goes above the limit, then it would be noise pollution. 

Area or Zone Limits in dB(A) Leq* (Day Time from 6.00 am. to 10.00 p.m) Limits in dB(A) Leq* (Night Time from (10.00 p.m. to 6.00 a.m)
Industrial area 75 70
Commercial area 65 55
Residential area 55 45
Silence Zone 50 40

If you violate these limits given in the table above, then you will be punished under the law with jail time and a fine.

Supported Admission and Discharge

The supported mode of admission and discharge means that the person being admitted does not have the capacity to make mental health care decisions, or requires very high support. All admissions in a mental health care establishment should be independent, except when supported admission is necessary((Section 85(2),  the Mental Healthcare Act, 2017 )).

Supported Admission for 1 month

Criteria and Procedure for Admission

The nominated representative must make an application to the mental health professional in-charge of the establishment. The criteria is as follows:((Section 89(1),  the Mental Healthcare Act, 2017 )).

  • A psychiatrist and a mental health professional/medical practitioner have examined the person within the last 7 days. Additionally, both must conclude that the mental illness is severe enough that they have recently:
    • Attempted/threatened to cause physical harm to themselves
    • Behaved violently towards someone else or have caused someone else to fear physical harm
    • Shown an inability to care for themselves to the extent that they pose a harm to themselves
  • The professional certifies (after considering the advance directive) that admission to the establishment is the least restrictive care option possible
  • The person is ineligible to be an independent patient due to inability to make treatment decisions independently and requirement of a very high support from their nominated representative.

Treatment

Before treatment, the following is considered:((Section 89(6),  the Mental Healthcare Act, 2017 ))

  • An advance directive, if any
  • Informed consent (i.e. permission given after complete knowledge of the treatment and its consequences). If the person is not able to give informed consent, the nominated representative may do so on their behalf((Section 89(7),  the Mental Healthcare Act, 2017 )). In such a case, the consent must be recorded in the medical records by the professional in-charge. Additionally, the professional must review the person’s capacity to give consent every 7 days((Section 89(8),  the Mental Healthcare Act, 2017 )).

Discharge 

Once the person stops meeting the criteria mentioned above, they may be discharged from the establishment. The professional must inform them/their nominated representative((Section 89(5),  the Mental Healthcare Act, 2017 )).

For the next 7 days after discharge, they cannot be readmitted((Section 89(15),  the Mental Healthcare Act, 2017 )). If these conditions are not met, they may remain in the establishment as a patient((Section 89(5),  the Mental Healthcare Act, 2017 )).

Supported Admission for more than 1 month

Criteria and Procedure for Admission

If the person requires continuous treatment beyond 30 days or has to be readmitted within 7 days of discharge, the nominated representative must make an application to the professional in-charge. The professional will continue admission of the person if((Section 90(2),  the Mental Healthcare Act, 2017 )):

  • Two psychiatrists have examined them independently within the last 7 days. Additionally, both conclude that the mental illness is severe enough that the person has consistently over time:
    • Attempted/threatened to cause physical harm to themselves
    • Behaved violently towards someone else or caused  someone else to fear physical harm
    • Shown an inability to care for themselves to the extent that they poses a harm to themselves
  • Both the psychiatrists certify (after considering the advance directive) that admission to the establishment is the least restrictive care option possible.
  • The person is ineligible to be an independent patient due to inability to make treatment decisions independently and requirement of a very high support from their nominated representative.

The Mental Health Review Board must review and permit such an admission((Section 90(4),  the Mental Healthcare Act, 2017 )). The admission is for 90 days((Section 90(8),  the Mental Healthcare Act, 2017. )). It can be extended to 120 days at the first instance, and after that, to 180 days at every instance, as required, with the Mental Health Review Board’s permission((Section 90(9),  the Mental Healthcare Act, 2017 )).

Treatment 

Before treatment, the following is considered:((Section 90(11),  the Mental Healthcare Act, 2017 ))

  • The advance directive, if any
  • Informed consent (i.e. permission given after complete knowledge of the treatment and its consequences). If the person is not able to give informed consent, their nominated representative may do so on their behalf((Section 90(12),  the Mental Healthcare Act, 2017 )), and in such a case, the consent must be recorded in the medical records by the professional, who must also review the person’s capacity to give consent every 15 days((Section 90(13),  the Mental Healthcare Act, 2017 )).

Discharge 

Once the professional believes that the person has stopped meeting the criteria mentioned above, they will be discharged from the establishment, and the person and their nominated representative must be informed((Section 90(15),  the Mental Healthcare Act, 2017 )). However, they may remain in the establishment as an independent patient((Section 90(16),  the Mental Healthcare Act, 2017 )).

What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?

LGBTQ+ persons may face harassment or discrimination by medical personnel like doctors, nurses, psychologists, psychiatrists, etc. For example, some hospitals may deny  treatment for a Sexually Transmitted Infection (STI) because of a persons sexual orientation or gender identity, i.e, if they are a gay, bisexual, etc.

In such cases, a person can take appropriate action so that they can access healthcare in a safe and supportive environment. Read our explainer on “Complaining or Reporting Problems by LGBTQ+ persons” . A person can also take help and support from lawyers, NGOs, etc. who will guide them through any issues they may face.

How does the law protect the rights of the pregnant woman?

Consent of Pregnant Woman

The law states that a pregnant woman’s consent is mandatory for an abortion to be performed(( Section 4(b), The Medical Termination Of Pregnancy Act, 1971.)). The woman can give consent through Form C of the Medical Termination of Pregnancy Rules, 2003. This form is submitted to the registered medical practitioner conducting the abortion.

If anyone forces a pregnant woman to have an abortion or performs one without her consent, the punishment is jail time for up to 10 years and a fine1

Privacy of Pregnant Woman

A woman seeking an abortion can expect the authorities to protect her privacy.

  • If she has approached an authorized hospital or place for an abortion, to protect her privacy, her name will be entered into an Admission Register against a serial number. The hospital authorities cannot enter her name in any hospital case-sheet, operation theatre register, follow-up card or any other document or register other than the Admission Register. The woman can only be referred to by the serial number assigned in the Admission Register.
  • The Admission Register is not open to inspection by any person other than the woman and a legal authority such as a Chief Medical Officer, District Health Officer, police etc.

The head of every hospital sends the Chief Medical Officer of the State a monthly statement of abortions done in the hospital(( Explanation 2 to Section 3(2), The Medical Termination Of Pregnancy Act, 1971.)).

  1. Section 315, Indian Penal Code, 1860. [↩]

Who can you complain to regarding a grievance under the law?

Police

You can file an FIR (First Information Report) at the nearest police station under Section 277 of the Indian Penal Code against a person or industry that is intentionally contaminating and corrupting the water of a public spring or reservoir.(( Section 277, Indian Penal Code 1860.)) The person who is polluting the water can be punished with jail time and/or fine.

District Magistrate 

For immediate action, a person can directly complain to the District Magistrate by an application under Section 133 of Code of Criminal Procedure((  Section 133, Code of Criminal Procedure,1973.)). Under the law, the Magistrate has the power to issue a notice to the person or industry causing the pollution to remove such nuisance or stop the polluting activity.(( Municipal Council, Ratlam v. Vardhi Chand [AIR 1980 SC 1622.]))

 State Pollution Control Boards

State Pollution Control Boards are responsible for redressal of water pollution complaints. You can file a complaint by visiting the regional offices of the State Pollution Control Board of the state or on the complaint portal available on its website. Now, grievances can also be communicated to the authorities via social media handles.

States like West Bengal have set up an Integrated Grievance Management system (IGMS)(( West Bengal Pollution Control Board, accessed at:  https://www.wbpcb.gov.in/public-grievance-redressal#.)) which lays down a comprehensive process for the filing of such complaints by way of a 24*7 helpline and the West Bengal Paribesh app(( West Bengal Paribesh App (WBPCB), accessed at: https://play.google.com/store/apps/details?id=in.gov.wbpcb.paribeshapp.)). Other states like Uttar Pradesh have introduced an online portal where complaints can be filed by filing a form.(( Public Grievance, Uttar Pradesh Pollution Control Board, accessed at: http://www.uppcb.com/public_grievances.htm.))

National Green TribunalCitizens can directly file cases of water pollution with the National Green Tribunal at: https://ngtonline.nic.in/efiling/mainPage.drt.  The complaint can be filed as an individual, advocate, a representative of a law firm or NGO or as a representative of the Government of India.

What are the offences and punishments under air pollution laws?

 

Crime Law Punishment
Causing air pollution beyond air quality limits The law bans industries from releasing any air pollutants more than the limits the State Pollution Control Board has laid down.(( Section 22, Air (Prevention and Control of Pollution) Act, 1981.)) If they do, the person in-charge of the establishment has to immediately notify the State Pollution Control Board(( Section 23, Air (Prevention and Control of Pollution) Act, 1981.)) and they have to pay for any corrective measures that the agencies undertake to reduce the impact of such harmful emissions(( Section 23(3), Air (Prevention and Control of Pollution) Act, 1981.)) as per the polluter pays principle.   The concerned State Pollution Control Board can make an application to a  Court (not below a Metropolitan Magistrate or a Judicial Magistrate of the First Class) for restraining the offender from emitting the air pollutant.(( Section 22A, Air (Prevention and Control of Pollution) Act, 1981.))

The polluter will have to reimburse the costs (plus interest the State departments have to bear to control the pollution.
An industrial plant is set up or operated without proper permission It is a crime for an industrial plant to set up or operate without the proper permissions from the State Pollution Control Board(( Section 21, Air (Prevention and Control of Pollution) Act, 1981.)) or exceed the allowed emission limits(( Section 22, Air (Prevention and Control of Pollution) Act, 1981.)) or the proper pollution control equipment.(( Section 31A, Air (Prevention and Control of Pollution) Act, 1981.)) The punishment is jail time of  one and half years to six years, along with a fine.(( Section 37, Air (Prevention and Control of Pollution) Act, 1981.)) If the violation continues, then an added fine of Rs. 5,000 (maximum) can also be imposed for each day it continues. 

If such failure continues for more than a year, then the offender can be punished with jail time for two to seven years, with fine.(( Section 37(2), Air (Prevention and Control of Pollution) Act, 1981.))
Use of vehicle in unsafe condition If a vehicle is driven in a public place, which violates the standards laid down in relation to noise and air pollution, it is a punishable offence.(( Section 190(2), Motor Vehicles Act, 1988.)) The punishment is a fine of Rs. 1,000 for a first offence and Rs. 2,000 for a second offence.  
Violation of PUC(Pollution Under Control) Certificate  A person using a motor vehicle will be fined if they are not carrying a valid PUC (Pollution under Control) certificate issued by the Ministry of Road, Transport and Highways. The punishment is a fine of Rs. 10,000.(( Motor Vehicles (Amendment) Act, 2019.))
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 is a crime. The punishment is jail time upto 5 years along with a fine that may extend to Rs. 1,00,000. Continued failure to comply with the law will lead to an additional fine of Rs. 5,000 for every day of non-compliance.((  Section 15, Environmental Protection Act, 1986.))
Releasing of harmful pollutants  into the environment Releasing harmful pollutants into the environment forms part of the offence of public nuisance(( Ratlam Municipality v. Vardhi Chandra, 1980 AIR 1622.)) as they make the air toxic and are injurious to the health of people. Even smoking in public places is considered to be a crime of public nuisance.(( K Ramkrishnan v. the State of Kerala, AIR 1999 Ker 385.)) 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 release air pollutants causing harmful health issues as well as discomfort to the people is an offence. 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. A Magistrate can pass an order(( Section 133, Code of Criminal Procedure, 1973.)) for removal of nuisance to stop such activities.

 

Right to Second Opinion

Every patient can approach another doctor to obtain a second opinion. In other words, if you want to explore more options or you are dissatisfied with treatment, you can obtain a second opinion. This right to second opinion protects the freedom of a patient to seek the medical care that the patient thinks is best and most appropriate.(( Section 2.2, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002)). A patient is free to go for a second opinion to any doctor of his choice. The hospital/doctor where he received the first opinion have the following duties(( Charter of Patient Rights, Ministry of Health and Family Welfare)):

  • The doctor cannot hold back a patient from asking for a second opinion by withholding medical records, reports or demanding to release them at a cost.
  • The hospital administration is duty-bound to respect this right of a patient. For instance, if the patient comes back to the first hospital after obtaining a second opinion.
  • The hospital/doctor should not discriminate or treat the patient disrespectfully.
  • Any differences of opinion among doctors should be frankly and impartially explained to the patient or his family.

Legal Age For Smoking

The legal age for smoking is 18 years. It is illegal for((  Section 6, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.)) anyone to sell, in any way, cigarettes or any other tobacco products to anyone below 18 years of age, or within 100 yards of an educational institute.

Duties of Sellers

If you are selling cigarettes or other tobacco products, you must ensure the following((  Section 2, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Amendment Rules, 2011.)):

  • The person purchasing the product(s) is above 18 years of age. To ascertain this, you may ask for evidence, such as an ID proof, etc.
  • Tobacco product is not sold through vending machines
  • The products are displayed so that easy access to them is not possible
  • No product is handled or sold by any person below 18 years of age
  • A board is displayed at the place where such products are being sold that states “Sale of tobacco products to a person under the age of eighteen years is a punishable offence”, among other specifications.(( Annexure I, Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Amendment Rules, 2011.))

Punishment

You cannot sell tobacco products to a person below 18 years of age. The punishment is a fine of Rs. 200.(( Section 24, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.))