Theme: Health & Environment

Repeat or subsequent crimes

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

The punishment for repeat offenders under this law is very strict. If you were convicted once before for either committing, abetting or attempting to commit or even conspiring to commit a crime under the drug laws in India, the second or any subsequent punishment for the same crime can be 1.5 times higher, both for imprisonment and fine, than the previous punishment you received(( Section 31, Narcotic Drugs and Psychotropic Substances Act, 1985))

In some serious cases, if you were convicted for a crime in relation to commercial quantity of a drug and are now being convicted again for the same crime, you may be given the death penalty.  Before 2014, death penalty was mandatorily imposed for certain subsequent offences, but that has now been changed and is left at the discretion of the judge.

 

How are curfews imposed in India?

When States impose a curfew, they pass orders under Section 144 of the Code of Criminal Procedure , 1973 (Section 144). A curfew is imposed in districts and States to prevent the localized spread of Covid-19 based on the number of cases in that particular area. This is an administrative power that rests with Magistrates in a district and they even have the power to restrict services during a curfew be it entertainment, transport etc. For example, a curfew order may be for specific districts asking people not to move out of their houses after 7 pm. This is different from lockdowns, which are imposed by the Central Government and disaster management authorities to take action and give guidelines for States as well as the whole of India to control and reduce the impact during the outbreak of any epidemic or pandemic. For example, imposing a travel ban between states to prevent movement of people during the epidemic.

The District Magistrate, Sub-Divisional Magistrate or Executive Magistrate, who is empowered by the State, passes the Section 144 order when immediate prevention is required. Such orders or directions aim at preventing or trying to prevent: 

  • Any obstruction, annoyance or injury to any person
  • Any danger to human life, health or safety
  • Disturbance of public tranquility
  • Riot or an affray (group fighting)

A Section 144 order can be directed either to a particular individual, group of persons residing in a place, or to the public in general when visiting a particular place. 

Restrictions under a curfew

The aim of the restrictions under a Section 144 order can be to1:

  • Prevent protests that can lead to unrest or riots. 
  • Prevent epidemics which affect public health.
  • Restrict anyone from carrying any sort of weapon. 
  • Restrict movement of the public.
  • Close particular educational institutions.
  • Ban  any kind of public meetings or rallies. 

Violating curfew orders

Some of the punishments for violating Covid-19 curfew orders are(( Section 269, Indian Penal Code, 1860; Section 188, Indian Penal Code, 1860, Section 143, Indian Penal Code, 1860, Section 147, Indian Penal Code, 1860, Section 55, National Disaster Management Act, 2005)):

  • Negligently spreading infection of a disease. The punishment is jail time up to six months and/or  fine.
  • Disobeying an order issued by a public servant . The punishment is jail time up to six months and/or Rs. 1000.
  • Being a member of an unlawful assembly. The punishment is jail time up to six months and/or  fine. 
  • Rioting.The punishment is jail time up to two years and/or  fine.
  • Punishment for Obstructing an officer or Government employee. The punishment is jail time up to one year and/or fine.

 

  1. Section 144, Code of Criminal Procedure, 1973 [↩]

Loudspeakers and Public Address System

Loudspeakers and public address systems are a common source of noise pollution in India and can only be used after getting written permission from local authorities. If the loudspeakers and amplifiers or other equipment or gadgets cause pollution then they may be seized and confiscated by the Government authorities. The noise level where loudspeaker or public address system or any other noise source is being used shall not exceed:

  • 10 dB(A) above the ambient noise standards for the area, or
  • 75 dB(A)

 

Most noise levels are given in dB(A), which are decibels adjusted to reflect the ear’s response or sensitivity of the human ear to different frequencies of sound. 

 

Night Time

Under the law, a loudspeaker, public address system, sound producing instrument, amplifier shall not be used at night between 10.00 p.m. to 6.00 a.m. except in closed premises like auditoriums, conference rooms, community halls, banquet halls or during a public emergency.

 

Religious Festivals

The State Government may permit the use of loudspeakers, public address systems, etc. during night hours (between 10.00 p.m. to 12.00 midnight) during cultural or religious occasions. The State Government can notify days on which using such equipment or instruments will not be considered as noise pollution. However, the Government can include only a maximum of 15 days in a year. For example, the Government may allow the use of loudspeakers during festivals like Diwali, Onam, Pongal, etc.

 

Privately Owned Sound Systems

If you own a sound system or a sound producing instrument, then it cannot exceed by  more than the noise limit which is 5 dB(A).

If you are being disturbed because of loudspeakers or any other sound producing instrument, then you can file a complaint to stop the noise pollution and the person making such noise will be punished.

Rights of Persons with Mental Illness

Persons with mental illness have certain rights((Mental Healthcare Act, 2017 )) so as to safeguard them from discrimination and harm. These rights are:

Right to make an Advance Directive

An advance directive is a legal document. In other words, it specifies healthcare decisions that should be taken for a person in the event they are not capable of making such decisions. Persons with mental illness can take the help of a service provider, NGO or lawyer to make this document.

Right to appoint a Nominated Representative 

A nominated representative is a person who is appointed by a person with mental illness to discharge certain duties. This includes provision of support to the person while making treatment decisions, helping such a person get admitted to a mental health establishment if required, etc.

Right to Access Mental Healthcare

A person with mental illness has the right to access mental health care from government-funded mental healthcare services, such as inpatient and outpatient services, half-way homes, sheltered accommodation etc. They can also get services to support the family of the person with mental illness.

Right to Community Living 

A person with mental illness has the right to community living. They can live with and be a part of society and not be forced to live in isolation, etc. For example, someone with mental illness need not live in an abandoned. They can live in a residential area and be a part of society.

Right to Live with Dignity

Every person with a mental illness has a right to live with dignity. In other words, protection from cruel, inhuman or degrading treatment in any mental health establishment.

Right to Equality and Non-discrimination

Every person with mental illness has a right to equality and non-discrimination. For example, persons with physical illness have the same rights as those with physical illnesses.

Right to Information

A person with mental illness and their  nominated representative have the right to ask for information. For instance, information about the person’s mental illness, treatment plan, any side effects, about the criteria for admission in a mental health establishment, about the law governing provision of care to people with mental illness, etc. 

Right to Confidentiality

A person with mental illness has the right to confidentiality. This includes information on their mental health, mental healthcare and physical healthcare. However, there are certain exceptions to this. 

Right to Legal aid

A person with mental illness has a right to free legal aid. Legal aid means providing free of cost legal services including Representation by a lawyer in legal proceedings, payment of all costs including process fees, expenses of witnesses etc.

Right to Complain

In case of deficiency of care treatment and related services in a mental health establishment, a person with mental illness or their nominated representative have the right to complain. 

Right to Communication

A person with a mental illness who is admitted to a mental health establishment has the right to communicate with their personal contacts. This includes the right to receive or refuse visitors, to send and receive electronic mail, etc. 

The law punishes mental health establishment or any other person who violate these rights. The punishment is  jail time of up to 6 months and/or a fine up to Rs. 10,000 for the first offence. For any subsequent offence, the jail time is up to 2  years and/or with a fine between Rs. 50,000 to 2 lakhs((Section 108,  the Mental Healthcare Act, 2017 )). You should complain against such a person, or approach the Court with the help of a lawyer.

Can a married woman terminate an unwanted pregnancy?

Yes. If a contraceptive device fails to work, and a married woman becomes pregnant as a result, it will be presumed that the pregnancy was unwanted and that the woman’s mental health will be affected if the pregnancy continues. Therefore, before 20 weeks of the pregnancy, the doctor can perform the abortion if the woman desires but only if the doctor believes that it should be done.

This presumption does not apply to unmarried women who have conceived due to failure of contraceptives. However, this does not mean that unmarried women cannot get an abortion. If a doctor believes that their mental health will be affected by the continuation of the pregnancy then the abortion will be legally allowed.

What are the powers of the Central and State Pollution Control Boards to regulate water pollution?

Central Pollution Control Board

The Central Pollution Control Board has been constituted to prevent and control water pollution as well as maintain the wholesomeness of water.(( Preamble,The Water (Prevention and Control of Pollution) Act, 1974.)) It has the power to direct the State Pollution Control Boards(( Section 18,The Water (Prevention and Control of Pollution) Act, 1974.)). The Board, by law, can order the closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of supply of electricity or water or any other services to the polluting or offending industry(( Section 33A,The Water (Prevention and Control of Pollution) Act, 1974.)). In addition to this, the Central Pollution Control Board, as a part of its function of Water Quality Monitoring and Surveillance, has the power to collect, compile and publish the technical and statistical data relating to water pollution.(( Water Quality Monitoring, cpcb.nic.in, accessed at: https://cpcb.nic.in/Introduction/.))

State Pollution Control Board

The State Pollution Control Boards have been entrusted with the power to lay down standards of discharge as well as the treatment of effluents into water bodies for all persons to comply, including body corporates. In order to achieve the aim of controlling and preventing water pollution, the state Pollution Control Boards have the power to:

i.    Obtain information: maintain records of the flow or volume of the effluents, carry out stream surveys and gather information regarding the disposal system from the industry or business establishment.(( Section 20,The Water (Prevention and Control of Pollution) Act, 1974.))

ii.      Take samples of effluents, from any stream or well, for analysis.(( Section 21,The Water (Prevention and Control of Pollution) Act, 1974.))

iii.      Enter and Inspect at any time to carry out the function of the Board or for examining the plant, records etc.(( Section 23,The Water (Prevention and Control of Pollution) Act, 1974.))

iv.      Impose restrictions on new or modified discharge outlets.(( Section 25,The Water (Prevention and Control of Pollution) Act, 1974.))

v.      Refuse or withdraw consent for the establishment of any industry or business.(( Section 27,The Water (Prevention and Control of Pollution) Act, 1974.))

vi.      Carry out other works in connection with the direction of the Board.((  Section 30,The Water (Prevention and Control of Pollution) Act, 1974.))

vii.     Perform emergency operation in the event of excess pollution of stream or well and dispose the polluting matter(( Section 32,The Water (Prevention and Control of Pollution) Act, 1974.))

viii.     Apply to the Courts to restrain the polluting industry or restrict such polluting activity.(( Section 33,The Water (Prevention and Control of Pollution) Act, 1974.))

Issue immediate orders of closure, prohibition or regulation of industries for the violation of standards or non-compliance of any orders as well as stopping of electricity or water supply to the offending establishment, in order to reduce the discharge of pollutants.((  Section 33A,The Water (Prevention and Control of Pollution) Act, 1974.))

What happens if the air pollution is caused by Government Departments?

When an offence is committed by a government department, the head or heads of that department will be held responsible for that particular offence and legal proceedings can be initiated against them.  In addition to this, if it is proven that the offence was committed with the consent, involvement, or neglect of any officer of the Government department, except the Head of Department, then that officer would be held responsible for the offence and not the head of department. Read more in our explainer on “What are the offences and punishments under this law”.

However if the offence was committed without the knowledge of the head of department or if all precautions were taken to avoid such an offence, then they would not be held responsible.(( Section 41, Air (Prevention and Control of Pollution) Act, 1981.))  

Protection for Patients in Clinical Trials and Biomedical Research

All clinical trials in India operate as per guidelines issued by the Central Drugs Standard Control Organization, Directorate General of Health Services in India.(( Schedule Y, Drugs and Cosmetics Rules, 1945)). Some of the main guidelines for clinical trials are:

  • Application for permission to conduct such a trial must be sought according to the procedure laid out by the rules. The  Licensing Authority1 has to give permission to start the clinical trial. Further, the Ethics Committee should also give approval.(( Section 2 (1)(i), Schedule Y, Drugs and Cosmetics Rules, 1945)).
  • Conducting all phases of  clinical trials for a new drugs discovered in India, which have human participants, within India itself.
  • All investigators conducting the trial must possess appropriate qualifications and should have access to the investigation facilities required for the trial.
  • When any physician or dentist accompanies the trial, he should be responsible for all medical or dental decisions taken in the trial.
  • The investigator should ensure that proper medical care is provided to participants of the trial for any adverse events. Ancillary medical care must be provided for any illness arising during the period of the trial, even if it is unrelated to the trial.
  • Investigators shall provide information about the essential elements of the clinical trial to the participants. The information provided should be easily understandable.
  • Participants have a right to claim compensation in case of trial-related injury or death.
  • All participants have to provide free, informed, and written consent before they join the trial. Legal representative can give consent if the patient is unable to give consent. Similarly, parents or legal guardians can give consent for children who participate in trials.

Rights of Participants of Clinical Trials

The National Ethical Guidelines for Biomedical and Health Research Involving Human Participants was released by the Indian Council of Medical Research (ICMR) in 2017. The guidelines ensure the following rights for participants of such trials:

  • Voluntary consent is paramount. Participants can choose to participate, not participate, or to withdraw from the trial at any time.
  • Every trial has to provide safeguards as well as equal distribution of benefits to all participants or vulnerable groups.
  • Confidentiality of the participants’ identities to protect their privacy is essential. However, this breach can happen only for medical or legal reasons, in consultation with the Ethics Committee.
  • Such research should not lead to social, racial, or ethnic inequalities.
  • Compensation for any direct physical, psychological, social, legal or economic harm faced by patients rights in the form of financial compensation or in any other manner.
  1. Section 21 (b), Drugs and Cosmetics Rules, 1945 [↩]

Responsibilities of Owners of Public Places

Under the law, it is the responsibility of the owners/managers of public places, such workplaces, shopping malls, etc., to ensure no one smokes in that public place(( Section 3(1)(a), the Prohibition of Smoking in Public Places Rules, 2008.[↩])). Specifically, the owner of the public place must ensure that:

  • A board is displayed(( Section 3(1)(b), the Prohibition of Smoking in Public Places Rules, 2008.)) at all entrances, floors, stairwells and conspicuous places that clearly states “No Smoking – Smoking Here Is An Offence”. The kind of board required has certain specifications((Schedule II, the prohibition of Smoking in Public Places Rules, 2008.)). For example, it must be 60 cm by 30 cm, with a white background. This should also include a depiction of a cigarette/bidi and a cross mark over it.
  • No ashtrays, lighters, or any other object that aids smoking is provided in the public place(( Section 3(1)(c), the Prohibition of Smoking in Public Places Rules, 2008.)).
  • The name of the person to whom a complaint may be made for a violation of these rules is displayed prominently in a public place(( Section 3(2), the Prohibition of Smoking in Public Places Rules, 2008.))

If the owner/manager of the public place ignores the reported violation, this means that the owner of the public place will be bound to pay the cumulative fine that equals the number of offences committed.(( Section 3(3), the Prohibition of Smoking in Public Places Rules, 2008.))

Amphetamine

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

Amphetamine is a psychotropic substance(( Section 2 (xxiii), Narcotic Drugs and Psychotropic Substances Act, 1985; read also Schedule, Narcotic Drugs and Psychotropic Substances Act, 1985)), the manufacture, possession, transport, import, export, sale, purchase and use of which is illegal in India. Some activities may be allowed but only after obtaining an express license or permit from the government for the same. 

The punishment for carrying out any of these activities is proportional to the quantity of Amphetamine that you are caught with. 

  • A small quantity (2 gm) – Jail time  up to 1 year and/or fine up to Rs 10,000
  • 2 gm to 50 gm – Jail time  up to 10 years and a fine up to Rs 1 lakh 
  • Commercial quantity (50 gm) – Jail time between 10 and 20 years, and fine between Rs 1 lakh and 2 lakhs. The Court may also impose a fine of more than 2 lakhs(( Section 22, Narcotic Drugs and Psychotropic Substances Act, 1985)).