Theme: Health & Environment

What is the importance of consent for GAT and Corrective surgery?

When a person goes for any surgery including GAT or corrective surgery, remember that it cannot be done without their written consent. The age of consent for medical procedures is 18 years1, and  consent given by a person of unsound mind or a child below 12 years is not valid.2

No one including hospitals, medical practitioners, acquaintances etc. can force a person to undergo3 GAT/Corrective Surgery as a legal condition for recognizing their gender identity.

The doctor doing any surgery needs to ensure that the consent given by the person is real consent, meaning the person giving consent should4:

  • Have the capacity and competence to consent. For example, someone of unsound mind will not be able to consent.
  • Give consent voluntary. For example, if a person is being coerced by family members to undergo any procedure, it is not real consent.
  • Be based on adequate information on the treatment procedure, so that the person knows what they are consenting to. Adequate information on the procedure includes:
    • The nature and procedure of the treatment;
    • Its purpose and benefits;
    • Its likely effects and any complications which may arise;
    • Any alternatives if available;
    • An outline of the substantial risks; and
    • Adverse consequences of refusing treatment.

However, adequate information need not include remote risks, rare complications and possible results of negligent 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?“

  1. Section 3, Indian Majority Act, 1875. [↩]
  2. Section 90, Indian Penal Code, 1860. [↩]
  3. National Legal Services Authority v. Union of India & Ors, AIR 2014 SC, 1863 [↩]
  4. Samira Kohli v. Dr. Prabha Machanda and Ors (2008) 2 SCC 1 [↩]

Who are the authorities regulating water pollution under the law?

The main authorities for the purposes of regulating water pollution are:

i.                 The Central Pollution Control Board: It was constituted under law to prevent, control and abate water pollution1. It is responsible for organising programmes at the ground level and provides technical services to the Ministry of Environment and Forests. Its primary purpose is to promote the cleanliness of streams and wells by preventing, controlling and abating water pollution.2 It resolves disputes among the State Boards and provides technical assistance to them. The Board also performs an advisory role to the Central Government on matters concerning the environment.

ii.                The State Pollution Control Board or Pollution Control Committees for States and Union Territories are constituted3 to set the standards of effluents for industries and for determining whether something is ‘poisonous, noxious or polluting’ or ‘any other’ matter. The State Boards give permission for the setting up of industries and advise the State government with respect to the locations where industries are likely to cause water pollution.

iii.              Municipal Corporations or local authorities are concerned with the disposal of sewage and dumping of waste material.

  1. Section 3,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  2. Central Pollution Control Board, accessed at:https://cpcb.nic.in/. [↩]
  3. Section 4,The Water (Prevention and Control of Pollution) Act, 1974. [↩]

Who can you complain to about a grievance under air pollution law?

Police

Anyone can file a complaint at the nearest police station and can even register an FIR (First Information Report) for public nuisance1 against the establishment, industry or person responsible for air pollution. 

 

Central and State Pollution Control Boards

CPCB stands for the Central Pollution Control Board. It is a body constituted under the law to prevent and control water and air pollution in India. It also provides technical services to the Ministry of Environment and Forests and runs the air and water quality monitoring programme to help regulate and decrease the level of pollution.2 It has a complaint portal on its website to report air pollution in Delhi NCR.

An aggrieved person can approach the State Pollution Control Board office in their state or visit the website to file a complaint for air pollution. The State Pollution Control Boards have the power to:

  • Approach a court for restraining any person who is likely to cause air pollution.3
  • Obtain information about emissions from industrial plants, enter and inspect premises, take samples of emissions and send for analysis.4 
  • Direct the closure of such polluting establishments or cut off or regulate its water or power supply. 

Courts

District Magistrate

Anyone can approach the Magistrate to file a civil suit for remedy against public nuisance with the help of a lawyer. The Magistrate also has the power to  issue a notice under Sec. 133 CrPC5 (order for removal of nuisance) to stop the polluting activities.

National Green Tribunal

Complaints can be registered at the official website of the National Green Tribunal. (NGT). 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.

When the proceedings are initiated, the NGT can provide relief and compensation as well as order return and restoration of property damaged and the environment of the area.6 The NGT orders compensation for instances of death, disability, injury or sickness, loss of wages and medical expenses7 to the person responsible for causing the damage to the environment.8

The Tribunal also has the power to grant:

  • Interim orders or a stay 
  • Orders requiring a person to cease and desist. 
  1. Section 268, Indian Penal Code, 1860. [↩]
  2. Central Pollution Control Board, accessed at: https://cpcb.nic.in/Introduction/. [↩]
  3. Section 22A(1), Air (Prevention and Control of Pollution) Act, 1981. [↩]
  4. Section 24-26,Air (Prevention and Control of Pollution) Act, 1981. [↩]
  5. Section 133, Code of Criminal Procedure, 1973. [↩]
  6. Section 15, The National Green Tribunal Act, 2010. [↩]
  7. Schedule II, The National Green Tribunal Act, 2010. [↩]
  8. Section 17, The National Green Tribunal Act, 2010. [↩]

Right to Confidentiality, Dignity and Privacy

All medical professionals have to be patient and delicate with whomever they treat medically.1. Further, they have to maintain the highest level of confidentiality regarding the private details of the patient.2

Examination of female patients

Female patients can request for the presence of another female in the room while being examined by a male doctor.3 This person need not necessarily be another doctor but any female person.4 This is to provide comfort to the patient, who may be uneasy in the presence of a male, and to ensure that she is treated with dignity. Further, the responsibility to do this lies with the hospital management.

Publishing photos or medical details

To ensure the privacy and dignity of patients, doctors cannot publish patients’ photos or case reports in any journal without their permission. However, if the identity of the patient is not clear from such publication, the consent of the patient is not required.5

Details of children 

Identities of deceased children and child victims of sexual offences are private and confidential. Any doctor or any other individual making this information public may face punishment.6 Not following this will make the person liable for a jail term of up to 6 months, fine up to ₹ 2 lakh or both.7

Details of adult rape victims

Making the identifcation details of a rape victim public, in any manner to the media or on social media, is a crime.8 For example, sharing the name and photo of a rape victim online is a crime.

Exceptions to confidentiality

A doctor cannot  reveal any secrets learnt about the patient during treatment. However, he or she can in the following situations9:

  • By a Court of Law under the order of the presiding judge
  • Where there is a serious risk to a specific person and/or community
  • In case of notifiable diseases, like COVID-19
  • If there is a risk of a patient spreading a communicable disease1. For instance, diseases like cholera, malaria etc.
  1. Section 2.2, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. [↩] [↩]
  2. Section 2.2, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002;  Annexure 8, Clinical Establishments Act (Standards for Hospital Level 1A & 1B), 2010. [↩]
  3. Guidelines and Protocols Medico Legal Care for Survivors of Sexual Violence, Ministry of Health and Family Welfare (Medico Legal Guidelines [↩]
  4. Charter of Patient Rights, Ministry of Health and Family Welfare. [↩]
  5. Section 7.17, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. [↩]
  6. Section 74 (1), Juvenile Justice (Care and Protection of Children) Act, 2015; Section 19, The Protection of Children from Sexual Offences (POCSO) Act, 2012. [↩]
  7. Section 74 (3), Juvenile Justice (Care and Protection of Children) Act, 2015. [↩]
  8. Section 228A, Indian Penal Code, 1860; Nipun Saxena v. Union of India 2018 SCC OnLine SC 3104 [↩]
  9. Section 7.14, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002; Charter of Patients Rights, Ministry of Health and Family Welfare [↩]

Advertisement of Tobacco Products

Under the law, it is illegal1 for you to advertise2, through any medium (including visual, auditory, etc.), any cigarettes or other tobacco products. You cannot authorize advertisement of tobacco products for money.

Prohibition of Advertisement

Specifically, the following activities are illegal3:

  • Display or permit the display of, in any manner, an advertisement of any tobacco product.
  • Sell or permit the sale of, in any manner, any film/video which advertises any tobacco product.
  • Distribute or permit the distribution of, in any manner, any leaflet or similar material which advertises any tobacco product.4
  • Exhibit, in any manner, on any structure, land or vehicle the advertisement of any tobacco product.
  • Promotion of any brand name of cigarettes or any tobacco products in exchange for money, gifts, etc.5

Permission for Advertisements

The advertisement of tobacco products is permitted with respect to4

  • A package containing cigarettes and other tobacco products.
  • A shop/warehouse where cigarettes and other tobacco products are offered for distribution or sale.

However, certain specifications must be followed while advertising tobacco products at shops/warehouses where such products are sold. Some of these are6:

  • The board used to advertise must not be bigger than 60 cm by 45 cm.
  • The board must feature one of the following warnings at the top, measuring 20 cm by 15 cm:
    • Tobacco causes cancer, or
    • Tobacco kills
  • No promotion of any specific brand can be done.

Punishment for Advertisement

If you violate any of the rules described here, the punishment is jail time of up to 2 years and/or a fine of up to Rs. 1000. However, on every subsequent offence, the punishment is jail time of up to 5 years and a fine of up to Rs. 5,0007.

  1. Section 5(1), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]
  2. Section 3(a), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]
  3. Section 5(1), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]
  4. Section 5(2), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩] [↩]
  5. Section 5(3), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]
  6. Section 2(b), the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2006. [↩]
  7. Section 22, the Cigarettes and Other Tobacco Products Act, 2003. [↩]

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.1

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.2

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.3

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.4

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.5

 

  1. Section 42, Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]
  2. Section 50(5), Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]
  3. Section 42(1)(d),  Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]
  4. Section 423,  Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]
  5. 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 India1:

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.

  1. Testing Stratgey, Indian Council for Medical Research, available at, https://www.icmr.gov.in/pdf/covid/strategy/Testing_Strategy_v6_04092020.pdf [↩]

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 necessary1.

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:2.

  • 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:3

  • 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 behalf4. 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 days5.

Discharge 

Once the person stops meeting the criteria mentioned above, they may be discharged from the establishment. The professional must inform them/their nominated representative6.

For the next 7 days after discharge, they cannot be readmitted7. If these conditions are not met, they may remain in the establishment as a patient.6

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 if8:

  • 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 admission9. The admission is for 90 days10. 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 permission11.

Treatment 

Before treatment, the following is considered:12

  • 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 behalf13, 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 days14.

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 informed15. However, they may remain in the establishment as an independent patient.16

  1. Section 85(2), the Mental Healthcare Act, 2017. [↩]
  2. Section 89(1), the Mental Healthcare Act, 2017. [↩]
  3. Section 89(6), the Mental Healthcare Act, 2017. [↩]
  4. Section 89(7), the Mental Healthcare Act, 2017. [↩]
  5. Section 89(8), the Mental Healthcare Act, 2017. [↩]
  6. Section 89(5), the Mental Healthcare Act, 2017. [↩] [↩]
  7. Section 89(15), the Mental Healthcare Act, 2017. [↩]
  8. Section 90(2), the Mental Healthcare Act, 2017. [↩]
  9. Section 90(4), the Mental Healthcare Act, 2017. [↩]
  10. Section 90(8), the Mental Healthcare Act, 2017. [↩]
  11. Section 90(9), the Mental Healthcare Act, 2017. [↩]
  12. Section 90(11), the Mental Healthcare Act, 2017. [↩]
  13. Section 90(12), the Mental Healthcare Act, 2017. [↩]
  14. Section 90(13), the Mental Healthcare Act, 2017. [↩]
  15. Section 90(15), the Mental Healthcare Act, 2017. [↩]
  16. 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.

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.1 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 Procedure2. 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.3

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)4 which lays down a comprehensive process for the filing of such complaints by way of a 24*7 helpline and the West Bengal Paribesh app5. Other states like Uttar Pradesh have introduced an online portal where complaints can be filed by filing a form.6

National Green Tribunal

Citizens 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.

  1. Section 277, Indian Penal Code 1860. [↩]
  2. Section 133, Code of Criminal Procedure,1973. [↩]
  3. Municipal Council, Ratlam v. Vardhi Chand [AIR 1980 SC 1622.] [↩]
  4. West Bengal Pollution Control Board, accessed at:  https://www.wbpcb.gov.in/public-grievance-redressal#. [↩]
  5. West Bengal Paribesh App (WBPCB), accessed at: https://play.google.com/store/apps/details?id=in.gov.wbpcb.paribeshapp. [↩]
  6. Public Grievance, Uttar Pradesh Pollution Control Board, accessed at: http://www.uppcb.com/public_grievances.htm. [↩]

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.1 If they do, the person in-charge of the establishment has to immediately notify the State Pollution Control Board2 and they have to pay for any corrective measures that the agencies undertake to reduce the impact of such harmful emissions3 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.4

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 Board5 or exceed the allowed emission limits1 or the proper pollution control equipment.6 The punishment is jail time of  one and half years to six years, along with a fine.7 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.8
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.9 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. 10,000.10
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.11
Releasing of harmful pollutants  into the environment Releasing harmful pollutants into the environment forms part of the offence of public nuisance12 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.13 The  punishment is a fine of Rs. 500.14 
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 order15 for removal of nuisance to stop such activities.

 

  1. Section 22, Air (Prevention and Control of Pollution) Act, 1981. [↩] [↩]
  2. Section 23, Air (Prevention and Control of Pollution) Act, 1981. [↩]
  3. Section 23(3), Air (Prevention and Control of Pollution) Act, 1981. [↩]
  4. Section 22A, Air (Prevention and Control of Pollution) Act, 1981. [↩]
  5. Section 21, Air (Prevention and Control of Pollution) Act, 1981. [↩]
  6. Section 31A, Air (Prevention and Control of Pollution) Act, 1981. [↩]
  7. Section 37, Air (Prevention and Control of Pollution) Act, 1981. [↩]
  8. Section 37(2), Air (Prevention and Control of Pollution) Act, 1981. [↩]
  9. Section 190(2), Motor Vehicles Act, 1988. [↩]
  10. Motor Vehicles (Amendment) Act, 2019. [↩]
  11. Section 15, Environmental Protection Act, 1986. [↩]
  12. Ratlam Municipality v. Vardhi Chandra, 1980 AIR 1622. [↩]
  13. K Ramkrishnan v. the State of Kerala, AIR 1999 Ker 385. [↩]
  14. Section 290, Indian Penal Code, 1860. [↩]
  15. Section 133, Code of Criminal Procedure, 1973. [↩]

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.1. 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 duties2:

  • 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.
  1. Section 2.2, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 [↩]
  2. Charter of Patient Rights, Ministry of Health and Family Welfare. [↩]

Legal Age For Smoking

The legal age for smoking is 18 years. It is illegal for1 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 following2:

  • 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.3

Punishment

You cannot sell tobacco products to a person below 18 years of age. The punishment is a fine of Rs. 200.4

 

  1. Section 6, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]
  2. Section 2, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Amendment Rules, 2011. [↩]
  3. Annexure I, Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Amendment Rules, 2011. [↩]
  4. Section 24, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. [↩]

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.1

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.

 

  1. Section 31, Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]

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 rights1 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 lakhs2. You should complain against such a person, or approach the Court with the help of a lawyer.

  1. Mental Healthcare Act, 2017. [↩]
  2. Section 108,  the Mental Healthcare Act, 2017. [↩]

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.1 It has the power to direct the State Pollution Control Boards2. 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 industry3. 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.4

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.5

ii.      Take samples of effluents, from any stream or well, for analysis.6

iii.      Enter and Inspect at any time to carry out the function of the Board or for examining the plant, records etc.7

iv.      Impose restrictions on new or modified discharge outlets.8

v.      Refuse or withdraw consent for the establishment of any industry or business.9

vi.      Carry out other works in connection with the direction of the Board.10

vii.     Perform emergency operation in the event of excess pollution of stream or well and dispose the polluting matter11

viii.     Apply to the Courts to restrain the polluting industry or restrict such polluting activity.12

ix.      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.3

  1. Preamble, The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  2. Section 18,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  3. Section 33A,The Water (Prevention and Control of Pollution) Act, 1974. [↩] [↩]
  4. Water Quality Monitoring, cpcb.nic.in, accessed at: https://cpcb.nic.in/Introduction/. [↩]
  5. Section 20,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  6. Section 21,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  7. Section 23,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  8. Section 25,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  9. Section 27,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  10. Section 30,The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  11. Section 32, The Water (Prevention and Control of Pollution) Act, 1974. [↩]
  12. Section 33,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.1  

  1. 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.1. 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 Authority2 has to give permission to start the clinical trial. Further, the Ethics Committee should also give approval.3.
  • 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. Schedule Y, Drugs and Cosmetics Rules, 1945 [↩]
  2. Section 21 (b), Drugs and Cosmetics Rules, 1945 [↩]
  3. Section 2 (1)(i), Schedule Y, 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 place1. Specifically, the owner of the public place must ensure that:

  • A board is displayed2 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 specifications3. 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 place4.
  • The name of the person to whom a complaint may be made for a violation of these rules is displayed prominently in a public place5

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.6

  1. Section 3(1)(a), the Prohibition of Smoking in Public Places Rules, 2008. [↩]
  2. Section 3(1)(b), the Prohibition of Smoking in Public Places Rules, 2008. [↩]
  3. Schedule II, the prohibition of Smoking in Public Places Rules, 2008. [↩]
  4. Section 3(1)(c), the Prohibition of Smoking in Public Places Rules, 2008. [↩]
  5. Section 3(2), the Prohibition of Smoking in Public Places Rules, 2008. [↩]
  6. 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 substance1, 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 Rupees 2 lakh2.

 

  1. Section 2 (xxiii), Narcotic Drugs and Psychotropic Substances Act, 1985; read also Schedule, Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]
  2. Section 22, Narcotic Drugs and Psychotropic Substances Act, 1985. [↩]

How is the Government tracking people infected with Covid-19?

The Central Government has released an official Covid-19 tracker app i.e. the Aarogya Setu app. It tracks  community transmission and traces the contact and travel history of individuals who are quarantined, using both location data and Bluetooth-based proximity tracking on users’ phones. This is one means of contact tracing.

Certain states also have applications that track  the mobiles of people who are under quarantine. Some examples of such apps are Quarantine Watch by the Government of Karnataka, SMC COVID-19 Tracker by the Surat Municipal Corporation, Gujarat,  Mahakavach by the Government of Maharashtra, etc.

The patient’s health also gets monitored regularly by the District Surveillance Officer at a district level, who facilitates further follow up by the surveillance teams. The health status of those under home isolation is monitored by the field staff/surveillance teams through personal visits along with a dedicated call center to follow up with the patients on a daily basis. The clinical status of each case is also recorded by the field staff/call center (body temperature, pulse rate and oxygen saturation)1.

 

  1. Revised guidelines for Home Isolation of very mild/pre-symptomatic/asymptomatic COVID-19 cases, Ministry of Health & Family Welfare, accessed at https://www.mohfw.gov.in/pdf/RevisedHomeIsolationGuidelines.pdf [↩]

Noise From Vehicles

Vehicles are a common source of noise pollution in India. You can be fined if you misuse your vehicle horn by:

  • Sounding the horn in a silent zone
  • Sounding the horn needlessly or continuously in a manner which is more than necessary to ensure your or others’ safety
  • Sounding the horn during night time (10 p.m. to 6 a.m.) in residential areas except during a public emergency.
  • Sounding a multi-toned horn that gives an unduly harsh, shrill, loud or alarming noise.

Even at the manufacturing stage of cars there are noise limits which have to be followed otherwise you will be punished with jail time and fine 

Silencers

Every motor vehicle including agricultural tractors have to be fitted with a silencer which by means of an expansion chamber or otherwise so that it reduces as far as practicable possible, the noise made by the escape of exhaust gages from the engine.

Airports

Airports are also regulated to prevent noise pollution. The noise standards only apply to busy airports which have more than 50,000 aircraft movements per year and not to:

  • Civil airports which have less than 15000 aircraft movement annually
  • Defense aircraft, aircraft landing and take off noise, aircraft engines, helipad locations.

If airports do not follow the noise standards given below then the authorities will take action against the airport.

 

Type of Airport 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 70 65
Commercial area 65 60